Docket: IMM-750-13
Citation:
2014 FC 867
Ottawa, Ontario, September 12, 2014
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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JASVINDER SINGH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27, of a decision rendered by R. Gawlick, Pre-Removal Risk
Assessment Officer (the Officer), rejecting the Pre-Removal Risk Assessment
(PRRA) of Jasvinder Singh (the Applicant). The decision was rendered on March
9, 2011, but was only communicated to the Applicant on December 18, 2012.
[2]
For the reasons that follow, I have come to the
conclusion that this application for judicial review must be dismissed.
I.
Facts
[3]
The Applicant is an Indian citizen. He is
married and has two children. He has no relatives in Canada.
[4]
The Applicant alleges that his cousin Manjit was
involved with smugglers. Manjit was arrested and tortured by the police in 2002
and 2003, but was released on both occasions after bribing the police.
According to the Applicant, Manjit continued to be harassed, and he finally
left in August 2003 without informing anyone.
[5]
The Applicant mentions he reported the matter to
the police, but they responded that Manjit had probably joined the smugglers.
The police added both Manjit and the Applicant’s names to a list of suspected
militants. The police started questioning the Applicant’s family.
[6]
In October 2005, after the Applicant told the
police he did not know anything about Manjit, he alleges he was taken to the
police station and tortured. He was finally released after the police were paid
a bribe.
[7]
Certain militants arrested by the police confessed
to having ties to the Applicant, which raised more doubts as to the Applicant’s
involvement with militants. His family was told that he had to report to the
police station or there would be consequences.
[8]
After the Applicant left for Canada, his father was arrested and tortured in order to eventually get to the Applicant.
[9]
On June 9, 2006, the Refugee Protection Division
(RPD) rejected the Applicant’s refugee claim based on available state
protection. The Applicant was granted leave on the application for judicial
review, but the judicial review was ultimately dismissed by Justice Noël on
February 9, 2007 (Singh Sran v Canada (Minister of Citizenship and
Immigration), 2007 FC 145).
[10]
The Applicant then filed a PRRA application,
submitting as new evidence various letters and affidavits from family members
and acquaintances. The Applicant also provided copies of reports following
complaints made by his father to the Punjab Human Rights Commission in Chandigarh.
[11]
On March 9, 2011, the Applicant’s PRRA
application was dismissed, and this decision was delivered personally to the Applicant
on December 18, 2012, namely 21 months after the decision was actually
rendered.
[12]
On January 28, 2013, the Applicant filed an
application for leave and judicial review of the PRRA decision. Leave was
granted on September 23, 2013 by Justice O’Keefe.
II.
Decision under review
[13]
The Officer generally concluded that it had not
been determined that the Applicant would be subject to risk of persecution,
torture, risk to life or risk of cruel and unusual treatment or punishment if
returned to India.
[14]
After reviewing the facts that led to the
Applicant’s refugee claim and summarizing the RPD’s reasons in its June 9, 2006
decision, the Officer focused on the new evidence submitted by the Applicant in
his PRRA.
[15]
The Officer did not accept an article dated
December 2002, because there was no original, the translation was unclear and
the Applicant did not explain why this article was not provided to the RPD in
the first place. He indicated, however, that all remaining submissions were
accepted as new evidence.
[16]
First, the Officer put little weight on a letter
from Des Raj Singh Dhugga dated June 26, 2008 since it did not explain how this
person had knowledge of the case. The events, as related, were the same as those
told to the RPD, with the exception of one contradiction which gave it less
credibility.
[17]
The Officer also put little weight on
affidavits, dated August 2006, of the Applicant’s wife, father and sister on
the basis that he did not understand why they had been written in English and
not in Punjabi. A stamp stating “To Take Effect Outside
India” also raised a doubt as to the validity of the affidavits.
Furthermore, the Officer thought that these affidavits only restated what had
been presented before the RPD. The Officer underlined, however, that the
Applicant’s father’s affidavit mentioned that police still came to his house
and tortured him, even if the Applicant was in Canada.
[18]
The Officer also considered three versions of
complaints made to the Punjab Human Rights Commission. He noted that the
documents had different paper, typefaces and signature stamps, even though they
were allegedly from the same office. The Officer found that the documents did
not appear to be on official letterhead and noted that, like the affidavits,
they were in English rather than Punjabi. He also found that the versions were
contradictory, in that they alleged that the Applicant was wanted by the police,
while stating that he was not required to appear before the police and the
complaint was finally disposed of. The Officer found that these documents do
not substantively address the points raised by the RPD and he was not persuaded
that they are genuine documents.
[19]
The Officer finally concluded that the
documents, on the balance of probabilities, were fabricated by the Applicant’s
father or a third party in order to help the Applicant’s PRRA application. He
also determined that the new evidence did not establish a significant change in
either general country conditions or in Mr. Singh’s specific situation.
III.
Issues
[20]
The present application raises two issues:
A.
Was there a breach of procedural fairness,
considering that the Applicant was provided with the PRRA decision 21 months
after it was rendered, without any opportunity to provide further evidence in
the meantime?
B.
Was the new evidence properly assessed by the
Officer?
IV.
Analysis
[21]
The first issue is to be reviewed on a standard
of correctness; the case law is clear that this is the standard to be applied
to issues of procedural fairness: see, for example, Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para
43; Ghasemzadeh v Canada (Minister of Citizenship and Immigration), 2010
FC 716 at para 16; Karami v Canada (Minister of Citizenship and Immigration),
2009 FC 788 at para 18. As for the assessment of the new evidence, the standard
is that of reasonableness. Accordingly, the Court shall not intervene if the “decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47.
A.
The delay in communicating the decision to the
Applicant
[22]
The Applicant submits that the Officer committed
a breach of procedural fairness by waiting almost two years in communicating
the decision to him, without cause, reason or explanation. According to the
Applicant, this delay violates section 15.1 of the Protected Persons Operation
Manual (Chapter PP 3), which makes clear that decisions must be rendered in a
timely manner. The Applicant also relies on Pathmanathan v Canada (Minister of Citizenship and Immigration), 2005 FC 6 [Pathmanathan], for
the proposition that this delay is unreasonable because the decision no longer
relies on current information. Finally, he argues that there has been a policy
change of the Indian Government with respect to passport issuance and
eligibility. This policy now denies the issuance of passports and passport
services to persons who have sought refuge in any country from India. Since the Applicant was not aware of this policy change until some point in 2011, he
was not able to provide this information to the PRRA Officer before the
decision was rendered. The Applicant believes that the Respondent should have
known of this policy change and should have taken it into consideration. This
policy could also create, in his view, a potential risk if he were to return to
India, since he has submitted a refugee claim in Canada.
[23]
I agree with the Respondent that a delay in and
of itself does not amount to a breach of procedural fairness; the Applicant
must show that he has suffered some prejudice from that delay: see Budh
Singh Gill v Canada (Minister of Employment and Immigration), [1984] 2 FC
1025 at 1028-1029 (FCA); Akthar v Canada (Minister of Employment and
Immigration), [1991] 3 FC 32, [1991] FCJ No 513 at para 20 (FCA); Dacosta
v Canada (Minister of Employment and Immigration) (1993), 41 ACWS (3d) 706,
[1993] FCJ No 674 at para 6 (FC); Maraj v Canada (Minister of Employment and
Immigration) (1993), 62 FTR 256, 19 Imm LR (2d) 90 at 102 (FC); Qazi v
Canada (Minister of Citizenship and Immigration), 2005 FC 1667 at paras
23-24.
[24]
There is no doubt that PRRA officers are
expected to ensure that their assessments are reasonably current. That being
said, this duty is shared with applicants; as Justice O’Reilly stated in Pathmanathan,
above, “PRRA applicants must also bear some
responsibility for ensuring that their applications are based on present
conditions” (at para 7). Section 15.1 of the Protected Persons Operation
Manual (Chapter PP 3) makes it clear that a PRRA officer must consider
submissions made by a PRRA applicant up to the point where the applicant is
notified that a decision has been made. In the case at bar, the Applicant did not
make any attempt to update his submissions or inquire about his case during the
21 month period between the date the decision was made and the date it was
communicated to him.
[25]
The only change in country conditions raised by
the Applicant is the passport policy change, which denies passport services to
all asylum seekers. He argues that it should have been taken into consideration
under a PRRA assessment, since it is an illustration of potential risk. The
Respondent counters that such a policy change could not impact the PRRA
application since the refugee claim decision had been rendered in 2006,
therefore long before the alleged policy change. This argument is without
merit. The fact that the Applicant would have been affected even if the
decision had been delivered to the Applicant shortly after having been made, in
March 2011, does not detract from the fact that the purpose of a PRRA is to
assess changes in country conditions and personal circumstances before removing
a failed refugee applicant. That being said, there are two fatal flaws with the
Applicant’s argument.
[26]
First, this evidence was not provided to the
Officer. It may be that this change did not occur before the decision was made
on March 9, 2011; the Applicant does not know when it came about and only
asserts that it was at “some point in 2011”. In
any event, the Officer could not be presumed to know about this policy change
or to enquire about it. An applicant is expected to know more about the risks
he may face when returning to his home country than a PRRA officer. The fact
that the Canada Border Services Agency arranges the removal of persons from Canada, does not translate into any kind of obligation for PRRA officers to keep up to date
with the requirements for passport renewals in every country. The burden is
always on an applicant to identify a new risk and to present evidence
supporting such a risk: Bayavuge v Canada (Minister of Citizenship and
Immigration), 2007 FC 65 at para 43; Mandida v Canada (Minister of Citizenship and Immigration), 2010 FC 491 at para 30.
[27]
The second problem with the Applicant’s argument
is that there is absolutely no evidence tending to show that asylum seekers who
have gone back to India have been persecuted or visited with harsh measures by
Indian authorities as a result of the new policy. The fact that a failed
refugee claimant may be prevented from obtaining a new passport and from
travelling abroad, does not equate with persecution on a Convention ground or
with a risk to life or of cruel and unusual treatment or punishment.
[28]
In the absence of any evidence demonstrating
that the Applicant has been prejudiced by the delay in providing him with the
PRRA decision, I am therefore unable to conclude that he has been denied
procedural fairness. If the Applicant can muster such evidence, it is always
open to him to seek a second PRRA and while that is pending, to request a
deferral of removal or a stay of removal from this Court.
B.
The assessment of the new evidence
[29]
It is clear from the decision that the Officer
did not ignore any new evidence submitted by the Applicant in support of his
application. The Officer indeed assessed all new affidavits, as well as the
Applicant’s father’s complaint to the Human Rights Commission, and he also provided
an explanation as to why the 2002 news article was not considered.
[30]
The Applicant contends, however, that the
Officer misconstrued the evidence. With respect to the fact that the affidavits
were completed in English and not in Punjabi with an accompanying translation,
he argues that it is certainly within the realm of possibility that the
affiants are proficient in English and thus completed their affidavits in that
language. As for the Officer’s analysis surrounding the stamp reading “To Take Effect Outside India”, it is clearly stated in
a Response to Information Request IND102462.E from the Immigration and Refugee
Board that “[a]ll Notaries are not empowered to
authenticate document to take effect outside of India”. The Applicant
further notes that he was given no opportunity to address the Officer’s
concerns regarding the affidavits.
[31]
I agree with the Applicant that it was
unreasonable for the Officer to arrive at a conclusion as to the non-genuine
character of the affidavits, based solely on the fact that they were written in
English and not in Punjabi. As stated by the Applicant, English is one of India’s official languages, and concluding that they should have been written in Punjabi
falls outside the realm of acceptable outcomes. It was similarly unreasonable
to doubt the validity of the affidavits because of the stamp. It appears from
the Officer’s reasons that he did not understand what the stamp stood for. As
the affidavits were sworn in India, it is Indian law that is applicable. The
Officer should have consulted the Response to Information Request mentioned
above, which would have disabused him of any concerns with respect to the
authentication of documents to take effect outside of India.
[32]
That being said, I agree with the Respondent
that even if the affidavits were considered genuine, they are all in relation
to risks previously considered by the RPD and they mainly restate what had previously
been submitted by the Applicant in his refugee claim. None of them address the
RPD findings in any way whatsoever; in those circumstances, it was not
unreasonable for the PRRA Officer to find that the new evidence did not
overcome the findings of the RPD. As was made clear by this Court in Perez v
Canada (Minister of Citizenship and Immigration), 2006 FC 1380 at para
12, a PRRA application is not intended to revisit the same risk allegations
considered by the RPD. Further, the Officer considered whether the new evidence
showed a sufficient change in the Applicant’s personal circumstances or country
conditions from the evidence currently before the RPD to warrant a different
decision, and found that it did not. This was the most serious defect in the
affidavits identified by the PRRA Officer, and it was sufficient to dismiss the
current judicial review application.
[33]
Regarding the Applicant’s father’s complaints to
the Human Rights Commission, I am of the view that it fell within the Officer’s
discretionary power to set aside this evidence. Indeed, the complaints do not
seem to be written on official paper or to bear an official signature. There are
also contradictions between these complaints, as stated by the Officer. The
first one, dated July 13, 2007 (Certified Tribunal Record, p. 72), indicates
that the Applicant is not being sought by the police, while the ground of the
complaint is that the Applicant’s father is being pressured by the police to
produce his son. Interestingly, this first report indicates that the Commission
has decided not to investigate the matter further, while what appears to be a
second report on the complaint (Certified Tribunal Record, p. 201) mentions a prima
facie case for scrutiny, based on the same allegations as the first report.
Considering these contradictions, and bearing in mind that it is not the
Court’s role to reweigh the evidence, the Officer’s conclusion that they were
created by the Applicant’s father or by an unknown person to help Mr. Singh,
falls within the range of acceptable outcomes.
V.
Conclusion
[34]
For all of the above reasons, I find that this
application for judicial review must be dismissed. Even if some of the
Officer’s conclusions regarding the genuineness of the Applicant’s family
members’ affidavits were unwarranted, these errors do not render the decision
as a whole unreasonable. The new evidence provided by the Applicant to support
the PRRA application did not refer to any new country condition or change in
the Applicant’s circumstances. Moreover, even if the decision was communicated
to the Applicant some 21 months after it was made, the Applicant has not
demonstrated that he has suffered a prejudice from this delay.
[35]
Neither party proposed a question of general
importance for me to certify, and none is stated.
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