Date: 20051207
Docket: IMM-9549-04
Citation: 2005 FC 1662
Ottawa, Ontario, December 7, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
LACHMAN SUKHU and JANETTE NAGAMAH SUKHU
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] The applicants, Lachman Sukhu and his wife Janette Nagamah Sukhu, are citizens of Guyana who bring this application for judicial review from the decision of the Pre-Removal Risk Assessment ("PRRA") Officer ("Officer") who found that there was insufficient objective evidence upon which to conclude that if returned to Guyana the applicants would be subjected to persecution, or a danger of torture, or be at risk of a threat to life or cruel and unusual treatment or punishment.
PRELIMINARY MATTERS
[2] First, since commencing this application for judicial review, Mr. Sukhu and his wife have been removed to Guyana. Notwithstanding, on the facts of this case I am satisfied that this application is not moot as contemplated by my colleague Mr. Justice Gibson in Nalliah v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 956. There, at paragraph 15, Mr. Justice Gibson wrote:
[...] I conclude that any judicial review application directed against a negative PRRA decision is moot where the Applicant for judicial review has been removed from, or has voluntarily left Canada following a finding by a judge of this Court that the Applicant is not entitled to a stay of removal by reason that he or she has failed to meet the "irreparable harm" element of the tripartite test for a stay of removal.
[3] In the present case, the Court did not conclude that the applicants were not entitled to a stay of removal by reason of failing to meet the "irreparable harm" element of the test for a stay of removal. Rather, the Court declined to consider the motion for a stay on its merits.
[4] Second, counsel for the applicants filed an affidavit sworn by Mr. Sukhu in which he detailed the treatment that he and his wife have endured since their return to Guyana. This was filed for the purpose of showing that the Officer's decision was wrong and unreasonable. I am unable to consider this evidence because it was not before the Officer and is not otherwise admissible as establishing some defect in jurisdiction or an issue of procedural fairness.
[5] Finally, at the commencement of oral argument counsel for the applicants advised that in view of the Court's prior jurisprudence in cases such as Say v. Canada (Solicitor General), [2005] F.C.J. No. 931, the argument based on institutional bias would not be pursued.
THE ISSUES
[6] Mr. and Mrs. Sukhu assert that the Officer erred by ignoring relevant evidence and by implementing a selective approach towards the evidence before her.
THE STANDARD OF REVIEW
[7] In Kandiah v. Canada(Solicitor General), 2005 FC 1057 I wrote at paragraph 6 that:
As to the appropriate standard of review to be applied to a decision of a PRRA officer, in Kim v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 540, Mr. Justice Mosley, after conducting a pragmatic and functional analysis, concluded "the appropriate standard of review for questions of fact should generally be patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter, and for questions of law, correctness". Mr. Justice Mosley also endorsed the finding of Mr. Justice Martineau in Figurado v. Canada (Solicitor General), [2005] F.C.J. No. 458, that the appropriate standard of review for the decision of a PRRA officer is reasonableness simpliciter when the decision is considered "globally and as a whole". This jurisprudence was followed by Madam Justice Layden-Stevenson in Nadarajah v. Canada (Solicitor General), [2005] F.C.J. No. 895 at paragraph 13. For the reasons given by my colleagues, I accept this to be an accurate statement of the applicable standard of review.
[8] I believe this remains the appropriate standard of review.
DID THE OFFICER IGNORE RELEVANT EVIDENCE OR REVIEW THE EVIDENCE IN A SELECTIVE FASHION?
[9] Mr. and Mrs. Sukhu raise three specific concerns.
[10] First, with their PRRA application Mr. and Mrs. Sukhu submitted five affidavits in which the deponents swore to the threats Mr. Sukhu received before leaving Guyana. Those threats were said to stem largely from Mr. Sukhu's actions as a police officer who had arrested dangerous criminals. Also, the deponents recommended that the applicants stay in Canada. The Officer dealt with these affidavits in the following manner:
Counsel further asserts that the applicant is still at risk of being targeted by criminals he dealt with when he was a police officer and because of racial tensions in Guyana. He has submitted affidavits from the applicants' daughter, son, a friend, the wife's sister and a business associate of the male applicant. These affidavits speak of the increase in criminal activities in Guyana and recommend that the applicants remain in Canada. I give these documents no weight as they are not from unbiased sources without interest in the outcome of the applicants' claims and they are of limited probative value. [underlining added]
[11] I accept that the Officer could, and should, have dealt with these affidavits in a more thorough manner because generally it is friends and relatives who are well positioned to speak of what they have observed happen to people they know. However, the following difficulties are apparent with the affidavits:
- The daughter's evidence is factually inaccurate. She swears that her father was a serving police officer when he left Guyana in 1997. However, the Refugee Board had noted when finding the applicants not to be Convention refugees that Mr. Sukhu had worked as a policeman from 1978 to 1985. That fact was not disputed by the applicants in their PRRA application.
- Thus, as the Officer noted, Mr. Sukhu had not been with the police force for some 19 years at the time the application was considered. The applicants had remained in Guyana for 12 years after Mr. Sukhu left the police force, and had lived in Canada for three years before making a claim for refugee protection. That conduct is inconsistent with living in Guyana and suffering the threats, attacks and abuses described in the affidavits.
[12] In the result, I do not consider that the Officer's failure to deal more fully with the affidavits constituted a material error. On their face they were inconsistent with the actions of Mr. and Mrs. Sukhu remaining in Guyana for 12 years before leaving for Canada.
[13] Second, the applicants submit that the Officer erred in her treatment of newspaper articles submitted with their application. The Officer dealt with the articles as follows:
Also submitted are some seventeen newspaper articles which relate incidents of criminal activity and acts of violence in Guyana. The source for all but two of these articles is not provided. Two are photocopies which are not very clear and all but two of them are undated. I give little weight to these articles as they are unverifiable, they do not mention the applicants specifically and refer, in general terms, to acts of random violence. However, I do note their value in terms of assessing country conditions.
[14] The Officer was correct to state that it is preferable for newspaper articles to reflect their dates and provenance. I have, however, reviewed the articles at issue. They relate generally to country conditions and do not address the risk faced specifically by the applicants or by former police officers. The Officer noted the value of the articles in assessing country conditions. I find that the weight the Officer gave to the articles was not patently unreasonable.
[15] Finally, the applicants correctly observe that when the Officer set out a significant portion of the 2003 United States Department of State report in respect of Guyana she omitted the following paragraph, without indicating through the use of an ellipsis its omission:
Poor training, poor equipment, and poor leadership severely limited the effectiveness of the GPF. Public confidence and cooperation with the police was extremely low. The police appeared completely incapable of effectively addressing an unprecedented violent crime wave, which included multiple deliberate murders of police officers. In addition, there were reports of corruption in the police and a lack of police accountability. Even when police officers faced charges, most of the cases were heard by lower magistrate courts, where other specially trained police officers served as the prosecutors (see Section 1.e.). Human rights monitors questioned officers' commitment to prosecute their own colleagues. [underlining added]
[16] The omission of one paragraph from a lengthy iteration of paragraphs without indicating the omission is poor practice and potentially misleading. However, the Officer later went on to set out the following passage from a publication of the Research Directorate of the Immigration and Refugee Board:
There were concerns about police bias based mostly on political affiliation or ethnicity before 1992, but the situation as regards equality of rights and freedoms has constantly improved since then, and the police are now perceived to be neutral on questions of ethnicity and political affiliation. However, there is a serious problem with violent crime, which has been steadily increasing in both numbers and violence. In Guyana, a country of some 750,000 inhabitants, about two violent home invasions take place every week, and most of the victims are Indo-Guyanese victims. The increase in violent crime is attributed mostly to illegal drugs and persons seeking to finance their consumption. The disproportionate victimization of Indo-Guyanese is attributed to their proportionally greater affluence, since they are a major component of the business and trading 'class', and many are relatively prosperous farmers.
Violent crime takes place in both rural and urban areas. Women generally avoid walking at night in many parts of the city and rural areas due to an increase in violent hold-ups. Many people have been killed, particularly when resisting.
The police response to violent crimes has been inadequate; rather than an ethnic or political motivation for this incapacity to cope, it is widely perceived that the police force does not have the necessary manpower, training and salaries to ensure an effective action against the increasing crime. [underlining added]
[17] This essentially captures the essence of the deleted paragraph as it touches on the inability of the police to address effectively the increase in violent crime. I therefore find no material error on the part of the Officer.
[18] On the whole, having subjected the Officer's global decision to a somewhat probing examination, I cannot find it to be unreasonable. The application will, therefore, be dismissed.
[19] No question for certification was posed by counsel and I agree that no question arises on this record.
ORDER
[20] THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
"Eleanor R. Dawson"
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