Date: 20060126
Docket: IMM-260-06
Citation: 2006 FC 80
OTTAWA, ONTARIO, JANUARY 26, 2006
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
BHUPINDER SINGH PANDHER
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR ORDER AND ORDER
[1] Bhupinder Singh Pandher (applicant) seeks from this Court an order staying his removal from Canada which is scheduled for Friday, January 27, 2006.
[2] The applicant is a citizen of India and a Sikh. He is 45 years of age. He came to Canada on July 27, 2003, and made a refugee claim in early September of that year naming the police as the agents of his persecution. He claims to have been arrested/detained and tortured twice by the police who suspect him of being associated with militants because one of his truck drivers, Rangit Singh, escaped from a checkpoint leaving behind the applicant's truck in which were found explosives and weapons.
[3] The Refugee Protection Division (tribunal) in a decision dated September 1, 2004, dismissed the applicant's refugee claim and further held he was not a person in need of protection. The tribunal found the applicant not to be credible on account of contradictions, omissions and defect in documentation. The tribunal was of the view the applicant invented his story for purposes of his claim.
[4] The applicant sought leave for judicial review from a judge of this Court who, on October 20, 2004, rejected that request.
[5] The applicant then made an application for a Pre-Removal Risk Assessment (PRAA). His application was refused on December 14, 2005. The underlying judicial process underpinning the stay application is the applicant's application for leave and judicial review from the PRAA officer's decision.
[6] The PRAA officer applied the procedure set out in section 113(a) of the Immigration and Refugee Protection Act (Act) which provides that an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available or that the applicant could not reasonably have been expected in the circumstances to have presented at the time of the rejection. The PRAA officer also indicated she was prepared to assess a new risk identified by the applicant namely the risk of cruel treatment of a failed returning refugee.
[7] The new evidence considered by the PRAA officer was the affidavit by his village of Sarpanchdated March 31, 2005, and certain newspaper articles. The PRAA officer stated the affidavit by the village of Sarpanch did not relate any new facts other than the police were still looking for the applicant because there was no one at his home. The PRAA officer said the affidavit also mentioned that the applicant was innocent and the police connected the applicant to militants unnecessarily. The PRAA officer said she was giving limited weight to this document as it referred to the applicant's situation with regard to the police in a general manner and that it was the councillor's opinion. She held the newspaper articles of 2005 referred to various incidents involving Sikhs. In the PRAA officer's opinion, the articles were not relevant to the applicant's personal situation.
[8] The PRAA officer then turned her mind to the objective public documentation which consisted of the U.S. DOS Country Report on Human Rights Practices - 2004, the World Fact Book - India 2005, Human Rights Watch World Report - India 2005, Amnesty International - India covering events from January - December 2004 and the U.K. Home Office India Country Report of April 2005.
[9] The PRAA officer's analysis focuses on the potential of police abuse in the context of the pursuit of militants or insurgents.
[10] The PRAA officer concluded that occasional acts of violence still occur, not exclusively in the Punjab, but also to the rest of India as well. She found that in the Punjab, the patterns of disappearances prevalent in the early 1990s have ended and the majority of armed opposition groups are inactive today because there is no terrorism and the situation has improved. She acknowledged the National Security Act allowed police to detain persons considered as security risks anywhere in the country but concluded the evidence did not demonstrate the applicant would fit the profile of a person who would pose a security risk.
[11] The PRAA officer contrasted the situation today in the Punjab with the situation in Jammu and Kashmirwhere separatist guerrillas operated. She was of the view the situation was improving in that area of the country. She also concluded that while the applicant travelled to different areas in his trucking business, he had not demonstrated that he would be personally at risk in the area of Jammu and Kashmir.
[12] The PRAA officer referred to the United Kingdom Country Report on India of April 2005, citing a UNHCR report that Indian nationals who return after their asylum claims had been rejected did not have any problems if they returned with valid travel documents and had left India with valid travel documents which was the case of the applicant who left India legally with a passport valid to 2012. She also alluded to public documentation which mentioned that if the Indian authorities became aware that the person returning had been refused asylum, they would likely detain the person for questioning and then release them, unless suspicion was aroused by his behaviour or the person was wanted by the Indian Security Services which was not the case for the applicant.
[13] On another point, that of an internal flight alternative, the PRAA officer was of the view the objective evidence consulted mentioned that there were no checks on a newcomer to any part of India arriving from elsewhere in India but that evidence acknowledged that a high profile person would be traced anywhere in India. She was of the view the evidence submitted did not demonstrate that the applicant was a high-profile person. An internal flight alternative existed for the applicant.
[14] The PRAA officer concluded by stating "having considered recent public documentation, the applicant's immigration file, his submissions, the documentary evidence produced and the present situation in India, I find that state protection exists, there is a possibility of Internal Flight Alternative and there is insufficient evidence to establish that the applicant is personally at risk if he returns to India".
[15] I am of the view this stay application must be dismissed for the following reasons.
[16] First, counsel for the applicant (who had only been recently retained) erred in his approach to the stay application. Essentially, his approach was that he could argue the issue de novo before me as if there had been no tribunal decision rejecting his refugee claim and no PRAA officer's determination. I say this because he filed several affidavits from his family, his neighbours and the Sarpanch and others. These affidavits are all dated January 2006 and therefore were neither before the tribunal nor before the PRAA officer when their respective decisions were made. In addition, he submitted two new country reports which were not before the PRAA officer in an effort to show that the evidence relied upon by the PRAA officer was stale. The new country reports were the spring 2002 issue of the Harvard Human Rights Journal and a recent ENSAAF Report published in October of 2005, concerning the police in Punjab entitled "Fabricating Terrorism Through Illegal Detention and Torture".
[17] It is trite law that this new evidence, not before the decision-maker, is inadmissible before the Court on a stay application and on the judicial review from the PRAA officer's determination.
[18] Because counsel for the applicant argued forcefully the material disclosed in his motion record clearly established the applicant was at risk of torture if a stay was not granted, I carefully examined his material to determine whether that material demonstrated the PRAA officer's analysis of the documentary evidence before her was faulty.
[19] My conclusion is that the applicant's material does not impugn the validity of the PRAA officer's findings:
(a) The Harvard study is of limited relevance since it deals with the situation in the 1980s and 1990s and focussed on judicial impunity for disappearances during that period;
(b) The ENSAAF Report is very recent and indicates an escalation of human rights violations committed in the context of national security, i.e. militancy-related activities following two bomb blasts in New Delhi in May of 2005. The concerns this report expresses have no application to the applicant given the finding of the tribunal his story of arrest and torture on account of his truck driver was fabricated;
(c) I would give little weight to the affidavits from his family, friends and neighbours who reside in the applicant's village. The affidavits are in the same form and worded the same in most cases.
[20] Finally, I reviewed the applicant's motion material which was before the PRAA officer and, in particular, the Fact-finding Mission to determine whether this material contradicts the PRAA officer's findings. In my view, they do not.
[21] The applicant's material (applicant's record pages 39 to 56) is largely corroborative of the PRAA officer's findings on the situation in the Punjab today and the limited amount of arrests related to militancy. Moreover, I find no fault in the PRAA officer's assessment of the newspaper articles which were before her and her finding on internal flight alternative. On this last point, see paragraph 8.7.1 at applicant's record page 53.
[22] Based on this analysis, I conclude the applicant has not demonstrated the existence of a serious issue to be tried, has not established irreparable harm and, in my view, the balance of convenience favours the Minister.
ORDER
For reasons cited above, this stay application is dismissed.
"François Lemieux"
J U D G E
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