Docket: IMM-1839-17
Citation:
2017 FC 902
Ottawa, Ontario, October 12, 2017
PRESENT: The
Honourable Mr. Justice Manson
|
BETWEEN:
|
|
JASKARANBEER
SINGH
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
The Applicant, Jaskaranbeer Singh (the
“Applicant”), seeks judicial review of an Immigration Officer’s (the “Officer”)
decision to reject his application for a pre-removal risk assessment (“PRRA”)
under section 112 of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA].
II.
Background
[2]
The Applicant is a 23-year old male from
Dhandowal, India, in the state of Punjab. He arrived in Canada in 2013.
[3]
The Applicant claims that he is in danger if
returned to India, because he is a target of Kulwant Singh, his father’s
cousin, who is a politically-connected, powerful citizen of the Punjab region.
Kulwant Singh is said to be largely responsible for the Applicant’s arrest and
torture by police, the detention of the Applicant’s brother, and the murder of
the Applicant’s father and step-brother. Kulwant Singh is apparently motivated
by serious political disagreements with the Applicant’s father; he is
affiliated with the ruling Akali Dal Badal party, whereas the Applicant’s
father was a member of the minority Congress Party. He is also said to be
motivated by his desire to acquire property owned by the Applicant’s family.
[4]
The Applicant himself has no political
affiliations, and is not politically active. However, on October 16, 2012,
police came to his home looking to arrest his father. Upon learning that his
father was not home, the police arrested the Applicant instead, accusing him of
“working with militants.” The Applicant was
detained for two days, and claims he was tortured by the police while in
custody. The Applicant believes that the police’s actions were motivated by
Kulwant Singh.
[5]
In November 2012, the Applicant fled to New
Delhi with his father. They lived there without incident until April 2013, when
the Applicant left for the United States (“US”) and eventually arrived in
Canada to claim refugee protection. The Applicant claimed that if he returned
to India he would be arrested because the police were unable to arrest his
father, who they accused of assisting militants. He also claimed that he was at
risk at the hands of Kulwant Singh.
[6]
The Refugee Protection Division (“RPD”) rejected
the Applicant’s claim, holding that there was insufficient evidence that the
Applicant’s father was persecuted for his political beliefs. The RPD also noted
that the Applicant travelled to the US before arriving in Canada, and then
waited for 2-months before claiming protection – which indicated a lack of
fear. Finally, the RPD held that there was an internal flight alternative
(“IFA”) to New Delhi, because the Applicant did not prove that he had a profile
that would warrant pursuit by police throughout India.
[7]
The Refugee Appeal Division (“RAD”) allowed the
Applicant’s appeal, but the Applicant was again unsuccessful at a
re-examination before the RPD. This time, the RPD focused on the Applicant’s
failure to explain why Kulwant Singh, or the police, would go to such an
extreme as to kill him, just because they could not find his father, as well as
contradictions in the Applicant’s timeline. The RPD again found an IFA in New
Delhi. The RPD did not believe that Punjab police would search for the
Applicant in New Delhi, given that he had no political affiliations, and given
that Kulwant Singh’s political party is local to the state of Punjab, and has
no national influence. The RAD affirmed this decision. The Applicant challenged
this decision to the Federal Court, but leave was denied.
[8]
On November 11, 2016, the Applicant’s brother
was detained by police. The Applicant believes that this was done at the
request of Kulwant Singh.
[9]
On December 3, 2016, the Applicant’s father and
step-brother were killed in a road-side incident in Punjab. The Applicant
believes that his father was lured to Punjab to retrieve his brother from
police custody, and that he was then intentionally struck by a moving vehicle
while walking along the road, along with the Applicant’s step-brother. The
Applicant further believes that the police are actively covering up the details
of this murder, and have written off the deaths as a motor-vehicle accident.
The Applicant believes that Kulwant Singh is ultimately responsible.
[10]
The Applicant provided details of his situation
and submitted a number of documents to be considered by the Officer, including:
- A translated First Information Report
(“FIR”) from Indian police, documenting that the Applicant’s brother had
an altercation with police in November 2016.
- Death certificates and post-mortem
reports for the Applicant’s father and step-brother
- An affidavit from the Indian police,
obtained by the Canadian Border Services Agency (“CBSA”) which states that
the deaths of the Applicant’s father and step-brother resulted from the
Applicant’s father accidentally driving his car into a tree, and that this
is corroborated by the Applicant’s brother, who was a witness. The
Applicant claims that this is evidence of a cover-up, because his brother
was in police custody at the time.
- A report authored by Dr. Michael Shkrum,
a Canadian forensic pathologist. Dr. Shkrum reviewed the post-mortem
reports of the Applicant’s father and step-brother. Dr. Shkrum’s report
questions the accuracy of the police narrative, and raises the possibility
that they were pedestrians struck by a car or truck.
- Documentary evidence about conditions in
India, including with respect to police corruption.
- An affidavit from an Indian lawyer
specializing in human rights, Navkiran Singh detailing police behavior
towards returnees who the police wish to locate, detain and torture
[11]
The Applicant also submitted a number of
documents which had already been submitted and examined by the RPD, and
therefore were explicitly not considered by the Officer. These included
a note from a doctor in India, dated October 4, 2013, which details the
Applicant’s injuries while in police custody.
[12]
The Officer originally rendered a decision in
this matter on March 2, 2017. This decision did not make reference to
additional documents which the Applicant had filed in late February, and
therefore an addendum to the decision was issued on May 10, 2017. The Applicant
was not aware of the addendum at the time of writing their first memorandum for
leave and judicial review. Upon learning of it, Applicant’s counsel brought a
motion to file a further memorandum, on consent, which was granted by
Prothonotary Milczynski on August 22, 2017.
[13]
The Applicant’s claims before the Officer were
essentially the same as they were before the RPD: he would be targeted by the
police, as well as Kulwant Singh, were he to return to
India. He claimed that his father and brother were murdered, and that if he
were to go back, it would be “his turn.”
[14]
The Officer found that the evidence did not
substantiate the Applicant’s claims that his father and step-brother were
murdered. While the Officer accepted that the two individuals were deceased, it
was noted that the death certificates did not indicate did the cause of death.
The Officer acknowledged the report from Dr. Shkrum and its conclusions, but
also took note of its internal limitations – the report itself acknowledges
that it was based only on post-mortem reports from India, some parts of
which were indecipherable, and which contained no pictures. Moreover, the
Officer considered that even if the Applicant’s father and step-brother were
struck by a vehicle while walking, this would not demonstrate that they were
murdered. The Officer also noted that the affidavit from the Indian police,
obtained by the CBSA, which listed the cause of death as an accident, and which
indicated that the Applicant’s brother was a witness.
[15]
The Officer similarly found that the Applicant
did not establish that his brother had been detained at the time of his father
and step-brothers’ deaths, and hence could not have been a witness. First, the
Applicant only provided a translated copy of the FIR, not the original. The Applicant
did not explain how he obtained it. Second, the FIR is dated November 14, 2016,
and documents an altercation between the Applicant’s brother and police. It
does not indicate the length of the Applicant’s detention, or state that he
would continue to be detained until the time of the incident, on December 3,
2016.
[16]
Finally, the Officer reviewed the documentation
about India and found that the Applicant had not successfully refuted the
conclusion of the RPD, who had found that the Applicant did not have the
profile of a person considered of interest for Indian authorities, or that a
background check in New Delhi would indicate that he was wanted by local Punjab
police. Therefore, the Applicant had an IFA in New Delhi. While recognizing
evidence of human rights abuses by Indian police, the Officer found that the
Applicant had not demonstrated that he was personally at risk.
[17]
The Officer rejected the Applicant’s
application, concluding that the Applicant did not establish the existence of a
personal and objectively identifiable risk, or that an IFA did not exist. The
Applicant was found not to have demonstrated more than a mere possibility of
being subjected to persecution with respect to section 96 of the IRPA,
nor had he established a danger of torture, a threat to life, and a risk of
cruel and unusual treatment under section 97, were he to return to India.
III.
Issues
[18]
The issues are:
- Was the Officer’s treatment of the evidence
unreasonable?
- Did the Officer engage in a selective analysis
of the documentation and ignore contradictory evidence to find that state
protection and an IFA exist for the Applicant?
IV.
Standard of Review
[19]
The standard of review is reasonableness.
V.
Analysis
A.
Was the Officer’s treatment of the evidence
unreasonable?
[20]
The Applicant argues that the Officer ignored
certain evidence, and paid insufficient attention to other evidence, thus
rendering the decision unreasonable.
(1)
Dr. Shkrum’s Report
[21]
The Applicant argues that, despite acknowledging
its existence, the Officer ignored the actual contents of Dr. Shkrum’s report,
and that it is trite law that simply “listing evidence”
does not mean it has been considered. Instead of properly considering the
contents of the report, the Applicant argues that Officer simply parroted the
limitations Dr. Shkrum himself sets out (that there were no photos, and that
certain parts of the post-mortem reports were illegible). The Applicant argues
that if the report had been properly considered, the Officer would have
understood that the account offered by the police – that the deceased were
killed when their own vehicle struck a tree – was “physically
impossible”, given the injuries sustained. According to the Applicant,
Dr. Shkrum’s report confirms that they were struck by a vehicle while on foot.
[22]
I find that the Officer’s treatment of the
report was reasonable. Contrary to the Applicant’s submission, the Officer did
much more than simply “list” the evidence. The
Officer considered the report’s contents, including the author’s admitted
limitations, as well as the other evidence, and was not persuaded that the
Applicant’s father and step-brother were murdered by a vehicle.
[23]
When the substance of the report is reviewed in
context, it is apparent that the Officer treated it reasonably. The Applicant’s
argument amounts to a request that the Court re-weigh this evidence, which is not
the role of the Court.
(2)
The Indian Police Affidavit and the Applicant’s
Brother’s Detention
[24]
The Applicant also argues that it was
unreasonable for the Officer to ignore the unreliability of the affidavit
provided by Indian police, which states that the Applicant’s brother was a
witness to the death of his father and step-brother. The Applicant submits that
his brother was in police detention at the time, and therefore the police
affidavit is clear evidence of a police cover-up. According to the Applicant,
the fact that the police would go to such lengths to cover-up his father’s
murder underscores the risk he faces were he to return to India.
[25]
The Officer considered the Applicant’s argument,
as well as the November 14, 2016 FIR documenting a police encounter with his
brother in November, but held that the Applicant had not demonstrated that the
Applicant’s brother was detained at the time of his father’s death, on December
3, 2016. The Applicant argues that this was unreasonable, because he was in
immigration detention at the time the PRRA was filed, and thus should not be
expected to obtain extensive evidence regarding his brother’s detention. The
Applicant further argues that it is plausible that his brother was detained on
December 3, 2016, given that he was in detention in November, 2016.
[26]
It was not unreasonable for the Officer to
consider the Indian police affidavit, or to disregard the Applicant’s argument
that it is evidence of a police cover-up – which is at best speculative.
Further, it was not unreasonable for the Officer to note that the Applicant
could not demonstrate that his brother was in detention at the time of his
father’s death. The November 14 2016 FIR says nothing about the length of
possible detention.
[27]
The onus is on the Applicant to prove his case
and provide sufficient evidence to support his application (Shire v Canada
(Minister of Citizenship and Immigration), 2014 FC 795 at para 47).
(3)
The October 4, 2013 Doctor’s Note
[28]
The Applicant further argues that it was an
error for the Officer to ignore the torture he faced while in police custody,
as corroborated by a doctor’s note dated October 4, 2012. While acknowledging
that the Officer ignored the report because it formed part of the
material before the RPD, the Applicant argues that this was an error, because
it goes to the pattern of “nefarious activities by the
police” against him, along with the evidence of the “cover-up.” The Applicant takes the position that the
Court should look at these issues as part of a continuum, which should have
been assessed along with the new evidence (Aladenika v Canada (Minister of
Citizenship and Immigration), 2017 FC 565 at para 18).
[29]
Section 113(a) of the IRPA states that “an applicant whose claim to refugee protection has been
rejected may present only new evidence that arose after the rejection…”
(emphasis added). The evidence of the Applicant’s torture by police was not
new, nor did it arise after the RPD’s rejection. Moreover, I fail to see how
there is a nexus between the prior events and the Applicant’s alleged risk
sufficient to establish such a continuum.
[30]
The RPD had credibility concerns with the
Applicant generally and, while it does not appear to have specifically dealt
with the doctor’s note, it found that the Applicant was exaggerating the extent
of his involvement with the police. Moreover, the Officer did not accept the
Applicant’s speculative assertion that the police “covered
up” his father and step-brothers’ murders – that was a reasonable
finding and as such, there was no continuum of persecution for the Officer to
consider.
B.
Did the Officer engage in a selective analysis
of the documentation and ignore contradictory evidence to find that state
protection and an IFA exist for the Applicant?
[31]
The Applicant argues that the PRRA made
contradictory findings about the availability of an IFA: on the one hand
finding that the Applicant did not meet the profile of someone who would be of
interest to Indian authorities generally, while also holding that “regular verification would inevitably lead the authorities
in Punjab to trace the Applicant.”
[32]
The Applicant also argues that the Officer’s
conclusion regarding the IFA was generally unreasonable. He argues that the
affidavit of Navkiran Singh, an Indian human rights lawyer, as well as country
condition reports make clear that the Applicant will likely be detected,
detained, and tortured by authorities, regardless of his location in India.
[33]
The Respondent argues that the affidavit of
Navkiran Singh, which was prepared as part of a different claim from a
different individual, is focused on the police’s treatment of high-profile
activists. Therefore, the affidavit does not assist the Applicant, who has no
history of political involvement or activism. The Respondent also reiterates
the conclusions of the RPD: Kulwant Singh’s political party is local to Punjab
and has no significant national influence, the Applicant has no outstanding
warrants or charges against him, and the Applicant had no problem leaving India
even though his fingerprints were checked at the airport prior to departure.
Finally, the Respondent points out that one piece of documentary evidence – an
IRB response to information request pertaining to the prevalence of background
checks in India – predates the Applicant’s failed refugee claim and appeal, and
therefore is not relevant to the PRRA assessment.
[34]
The Officer found that the Applicant had not
submitted sufficient proof to refute the conclusion of the RPD, which held that
the Applicant did not have the profile of a person considered of interest for
the Indian authorities, or that a background check would reveal him as being
wanted by the Punjab police. In my view, this was reasonable.
[35]
The objective evidence led by the Applicant, taken
in its best light, suggests that the Applicant could be detected by authorities
while undergoing a background check to obtain housing or employment, if he
were “of interest” or “wanted.” However, the Applicant lived in New Delhi
without incident from November 2012 until April 2013, has no history of
political or human rights activism, has no outstanding arrest warrants, and
Kulwant Singh’s political party has no national influence. He was also able to
leave New Delhi without incident, despite undergoing a finger-print scan.
[36]
Moreover, the Applicant’s argument that he is in
danger in New Delhi is conditional on the premise that the police in Punjab are
actually looking for him, or that they would seek him out were he to be
detected in New Delhi. The only new evidence the Applicant has led to establish
this condition was his claim about the cover-up of the murder of his father and
step-brother – a claim which the Officer reasonably rejected. The Officer’s
conclusion that the Applicant did not successfully rebut the RPD’s conclusion
on this point was reasonable.
[37]
The Applicant also argues that the Officer’s
conclusion on the availability of state protection was unreasonable, because it
involved selectively reading the documentary evidence which emphasized the “good news” about India while ignoring the evidence
about police violence and
lawlessness, including evidence about “covering up”
murders.
[38]
The Officer did not selectively ignore the
negative evidence about India contained in the US DOS Report. The Decision
quotes from the Executive Summary of the US DOS report, including the
following:
“The most significant human rights problems
involved police and security force abuses, including extrajudicial killings,
torture and rape; corruption remained widespread and contributed to ineffective
responses to crimes…
Other human rights problems included
disappearances hazardous prison conditions, arbitrary arrest and detention…”
[39]
The Officer went on to accept that India suffers
from “human rights infringements reported with regards
to excessive use of force by security forces, deficiencies in due process and
the suppression of civil liberties.”
[40]
The Officer reasonably held that the Applicant
did not submit sufficient “personal documents to
demonstrate that he is personally at risk,” even accounting for the
general problems with police misconduct in India. The “personal
evidence” submitted by the Applicant to show that he was at risk
consisted of a human rights lawyer’s affidavit, which did not address the
Applicant’s personal situation, and the collective evidence regarding the
police cover-up, which was not accepted. In my view, the Officer’s decision on
this issue was also reasonable.
Email this Content