Date: 20040113
Docket: IMM-3920-03
Citation: 2004 FC39
MONTRÉAL, QUEBEC, THIS 13TH DAY OF JANUARY, 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
SUKHWINDER SINGH SIDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Pursuant to paragraph 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), the applicant seeks judicial review of the decision rendered on April 10, 2003 by Marylène Charbonneau, Pre-Removal Risk Assessment Officer (the PRRA Officer), wherein the applicant's application for a Pre-Removal Risk Assessment was dismissed because he was not deemed to be a person who faced a risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if he were to return to India.
BACKGROUND
[2] The applicant, Sukhwinder Singh Sidhu, is a citizen of India. He claimed and was denied refugee status in Canada on December 4, 2001. His claim was based on a fear of an objectively identifiable risk of torture and detention by reason of his imputed political opinions and membership in a particular social group. The applicant claimed that police were seeking to detain and torture him because he was wrongly suspected of transporting and harbouring militants. Furthermore, he argued that militants held him responsible for the arrest of their colleagues and also, had threatened his life.
[3] The Immigration and Refugee Board (IRB) rejected the applicant's claim on the basis of a lack of credibility, on December 4, 2001. On December 28, 2001, the applicant submitted an application for consideration under the Post-Determination Refugee Claimants in Canada class (the PDRCC). The application was converted to an application for Pre-Removal Risk Assessment (PRRA) when the Act came into effect, and was dismissed on April 10, 2003. On May 28, 2003, the applicant filed an application for a stay of his removal order, which was dismissed by Justice Gauthier on June 2, 2003.
[4] The PRRA Officer stated that her analysis of the case at bar had been based on the same facts as those submitted before the IRB, which were found not to have been credible, as well as new evidence such as a letter from the applicant's wife, medical information on the health situation of his father and an affidavit from the applicant himself. The PRRA Officer made many observations similar to those contained in the IRB decision. The applicant was unable to explain certain inconsistencies in his claim, especially his point of entry statement in which he stated that he had come to Canada in search of better employment. The PRRA Officer also noted documentary evidence that stated that radical Sikh militancy had all but ended since 1997 and that police did not pursue individual Sikhs living outside of the Punjab without concrete proof of criminal activity. As well, because the applicant was released after being arrested, documentary evidence suggested that this meant he was not considered a militant by police. The PRRA Officer concluded that the applicant did not fit the profile of a militant and that there was no documentary evidence to support the applicant's claim to having experienced problems at the time that he alleged that they had occurred. Furthermore, documentary evidence showed that those formerly arrested for militant activities were now leading normal lives. Finally, the PRRA Officer found that there was an internal flight alternative, and evidence also indicated that Indian citizens who were failed refugee claimants from other countries did not encounter problems with authorities provided that they had proper documentation upon their return. As such, the PRRA Officer determined that the applicant would not suffer a risk of persecution if returned to India.
STANDARD OF REVIEW
[5] On the one hand, the applicant submits that the standard of review to be applied to a PRRA Officer's determination is one of reasonabless simpliciter (Shahi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826 at para. 13 (T.D.) (QL). On the other hand, the respondent submits that the standard of review is one of patent reasonableness. The respondent submits that the case law establishing this principle in the context of PDRCC applications applies mutadis mutandis to PRRA decisions (Maximerko v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 183 at para. 9 (T.D.) (QL); Sokhan v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 958 at para. 14 (T.D.) (QL)).
[6] In Baker v. Canada (Minister of Employment and Immigration), [1999] 2 S.C.R. 817 at paragraph 62, L'Heureux-Dubé J. stated as follows:
I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather [page858] than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[7] In light of the above, I am inclined to conclude that, in applying the pragmatic and functional approach, the applicable standard of review should be reasonabless simpliciter (Shahi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826 at para. 13 (T.D.) (QL); Zolotareva v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1586 at para. 25 (T.D.) (QL)).
[8] In assessing the applicable standard of review, we must also take into account section 18.1(4) of the Federal Court Act, R.S.C. 1985, c. F-7 which sets out the specific grounds that an applicant must establish in order to succeed on an application for judicial review. It prescribes as follows:
| (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
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4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments don't il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
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[9] In choosing to enumerate six distinct grounds of review, Parliament has deliberately opted for a rather formalistic approach to judicial review (Umba c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2004 CF 25). For example, paragraph 18.1(4)(d) establishes that an erroneous finding of fact made by a tribunal is only a reviewable error where it is made in a "perverse or capricious manner or without regard to the material before the tribunal". In Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 108 at para. 14 (C.A.) (QL), Décary J.A. stated as follows:
In so far as these are findings of fact they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal Court Act, and is defined in other jurisdictions by the phrase "patently unreasonable".
[10] In light of the above, I accept that there may still be room for debate as to whether or not the herein decision should be reviewed on a reasonabless simpliciter or a patent unreasonableness standard.
[11] However, it is not necessary that I formally decide which standard of review should generally apply in cases involving an assessment of risk. Based upon either standard, I have concluded that the impugned decision is not reviewable. Clearly, the PRRA Officer did not base her decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard to the material before her. Moreover, the conclusion reached by the PRRA Officer is supported by the evidence and can stand up to a probing examination.
ANALYSIS
[12] Firstly, the applicant submits that the PRRA Officer did not give proper regard to the documentary evidence. There were various reports submitted for the Officer's consideration that portrayed the situation as very dismal, such as the Amnesty International report entitled: India: Break the Cycle of Impunity and Torture in Punjab (January 20, 2003). This report details the blatant disregard for the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46, UNGAOR, Supp. No. 51, UN Doc. A/39/51 (1984) 197 (Convention Against Torture), as does the European Court of Human Rights case of Chahal v. United Kingdom, (1997) 23 E.H.R.R. 413, where the Court concluded there was a serious risk of torture for someone targeted in the same manner that the current applicant had been targeted. As the European Court concluded there was still a serious risk of torture for Mr. Chahal today in India, the same reasoning should apply to the case at hand.
[13] The applicant cites the Federal Court decision of Shahi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826 (T.D.) (QL), as evidence of this Court's approval of the applicability of the Chahal decision to the current situation in India. There, Madam Justice Tremblay-Lamer stated at para. 22-23:
Clearly, a "probing" examination of the relevant H & C considerations submitted as evidence supports the finding that the applicant could reasonably expect unusual, undeserved or disproportionate hardship if he had to leave Canada due to the Punjabi police's incorrect suspicion of his involvement with Sikh militants.
Further, contrary to the immigration officer's findings, I consider that the Chahal v. United Kingdom [See Note 14 below] decision does indeed support the finding that a person targeted like the applicant is in danger if he were to return to India. Although the European Court of Human Rights, notes a reduction of terrorist-related deaths in the region of Punjab, as well as progress in improving the culture of police abuse and corruption, it is important to point out that the Chahal judgment concludes that the lack of concrete evidence of any fundamental reform of the Punjab police in recent years reflects an assumption that police corruption remains a persisting problem in Punjab.
[14] At the hearing before this Court, applicant's counsel also relied on several passages extracted from the Danish Immigration Service Report, which indicated that torture and other inhuman treatment are still going on in Punjab (or in India in general), and suggested that the Board had misunderstood or otherwise failed to take account of this highly relevant documentary evidence.
[15] Despite the able efforts made by applicant's counsel to demonstrate that the officer's conclusion is unreasonable, the documentary evidence is not unequivocal. Questions of weight and credibility to be given to the evidence in risk assessments are entirely within the discretion of the PRRA Officer and, normally, the Court should not substitute its analysis for that of the Officer([1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Ferroequus Railway Co. v. Canadian National Railway Co., [2003] F.C.J. No. 1773 at para. 14 (F.C.A.) (QL); Khan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 974 at para. 4 (T.D.) (QL)).
[16] The PRRA Officer's decision was not based on speculation, but on documentary evidence to which she makes specific reference throughout her decision. Furthermore, both cases referred to by the applicant are inconclusive in this matter. Chahal, supra, on which the applicant heavily relies, was rendered in 1996. In itself, this case does not serve to establish the existence of risk at the time of the PRRA Officer's decision in 2003. The same applies for the 1998 decision of Shahi, supra. Moreover, this is not a case where the total lack of analysis of the documentary evidence amounts to an error of law or offends the duty to act fairly as was the case in Rajathurai v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 296 (T.D.) (QL). Clearly the reasoning of the Officer is understandable and rational.
[17] The IRB had already examined various reliable sources of documentary evidence and determined that the applicant's allegations did not conform to the current political situation in India. These findings were shared by the PRRA Officer, who considered recent documentary evidence such as the Immigration and Naturalization Directorate 2002 edition and the Danish Immigration Service Report on the prevailing situation. The documentary evidence indicated that radical Sikh militancy had all but ended in 1997 and that police did not pursue individual Sikhs living outside of the Punjab without concrete proof of criminal activity. Furthermore, evidence from the United Nations High Commissioner for Refugees indicated that Indian citizens who are failed refugee claimants from other countries do not encounter problems on their return provided that they have proper documentation. It is sufficient to find here that there is documentary evidence supporting the Officer's conclusion. Although there may exist documentary evidence that presents a somewhat differing position, I am not ready here to accept that the failure to mention specifically such evidence alters the Officer's general conclusion that the applicant would not face a personalized risk of persecution.
[18] The PRRA Officer also noted in her evaluation that her analysis of the case at bar was based in part on the same facts as those submitted before the IRB, which were found not to have been credible. The IRB made this finding based upon the applicant's lack of credibility and the implausibility of his story. His credibility was further called into question by his point of entry statement in which he stated that he was coming to Canada to seek employment and failed to demonstrate a credible subjective fear of persecution in India.
[19] Clearly, the Officer was entitled to consider the fact that the applicant was not involved in political or militant activities; that he did not have the profile of a militant; that he had never been formally charged by the police for any criminal act; that he stated that he had no problems with the authorities in the Punjab in the early 90's during the years when the militants were active; and that he stated that he had been released by the authorities following his arrest. The PRRA Officer's finding that the applicant would not face a personalized risk of persecution should he return to India was reasonable in the circumstances.
[20] Secondly, the applicant submits that the PRRA Officer acted arbitrarily and capriciously when she did not give proper regard to the medical evidence on file from health care professionals that the applicant was tortured (Exhibit P-6 & P-12). The evidence confirms that he suffered from soft-tissue injuries, bruises, linear imprints and stiffness of joints from August 2, 2000 to August 9, 2000. As no clear reasons were given for rejecting such evidence, the applicant submits that his right to procedural fairness has been violated. Medical evidence must not be set aside without explanation: Vijayarajah v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 295 (F.C.T.D.). Applicant's counsel asserts that he is a victim of very severe torture and there is strong medical evidence confirming this point.
[21] I must also dismiss this second submission. At page 4 of her decision, the PRRA Officer clearly outlines the documents submitted to her by the applicant, including the medical report. Hence, the fact that such medical evidence was not considered in detail does not render the PRRA Officer's decision capricious or arbitrary: Kaur v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 190 at para. 20 (F.C.T.D.) (QL) . Furthermore, in itself, the medical report does not constitute proof of the fact that the applicant was tortured. It does not corroborate his story, which was not found to be credible.
[22] In conclusion, so long as the impugned decision is reasonable, it must stand. Questions of weight and credibility to be given to evidence are determinations to be made by the PRRA Officer. In this case, the PRRA Officer provided clear reasons for her negative risk assessment.
[23] As such, a reading of the decision as a whole leads to a conclusion that the decision is not capricious or arbitrary and also that the PRRA Officer's reasoning can stand up to a "probing" examination. Therefore, the present application must fail.
CERTIFICATION OF A QUESTION
[24] The applicant proposed the following question for certification:
Is there a situation in India that would qualify under Article 3(2) of the Convention Against Torture where there are massive, systematic and flagrant abuses of human rights?
[25] Article 3 of the Convention Against Torture stipulates the following:
(1) No State Party shall expel, return ("refouler") of extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
(2) For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
[26] Paragraph 97(1)(a) of the Act refers specifically to the notion of torture contained in Article 1 of the Convention and therefore integrates the principles contained in Article 3 of the Convention. Consequently, the answer to this question is contained in the law itself and does not require certification.
[27] Moreover, the risk of torture is essentially one of fact to be examined on a case by case basis. In the present case, the PRRA Officer assessed the relevant evidence and determined that the applicant would not face a risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment in India.
[28] The Federal Court of Appeal noted in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), that a proposed question should be certified only when it deals with issues of broad significance of general application which transcend the immediate interests of the parties. Clearly, this is not such a case here.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision rendered by Pre-Removal Risk Assessment Officer Marylène Charbonneau on April 10, 2003, be dismissed. No question of general importance will be certified.
« Luc Martineau »
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3920-03
STYLE OF CAUSE: SUKHWINDER SINGH SIDHU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL
DATE OF HEARING: JANUARY 6, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: JANUARY 13, 2004
APPEARANCES:
MR. STEWART ISTVANFFY FOR THE APPLICANT
MS. ANDREA SHAHIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. STEWART ISTVANFFY FOR THE APPLICANT
MONTREAL, QUEBEC
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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