Gill v. Canada (Solicitor General), 2004 FC 1492

Date: 20041028

Docket: IMM-479-04

Citation: 2004 FC 1492

Ottawa, Ontario, this 28^th day of October, 2004

Present:           THE HONOURABLE MR. JUSTICE SIMON NOËL                              

BETWEEN:

                                                       MOHINDER SINGH GILL

                                                                                                                                            Applicant

and

THE SOLICITOR GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision of an officer for Citizenship and Immigration Canada (the "officer" and "CIC") dated December 3, 2003, deciding against the risk of return in the Pre-Removal Risk Assessment ("PRRA") under article 112 of the Immigration and Refugee Protection Act ("IRPA") and refusing a Ministerial exemption. The Applicant seeks to have the officer's decision declared invalid and quashed, with the case being referred back for re-determination in accordance with such directions as the Court may judge appropriate. The Applicant further seeks a declaration that the PRRA process with an analysis of risk of return does not respect the Canadian Charter of Rights and Freedoms or Canada's international obligations due to the lack of independence of the decision-maker.

[2]                The Respondent is also asking that the style of cause be amended to replace the Minister of Citizenship and Immigration for the Solicitor General of Canada.

ISSUES

(a)         Does the PRRA system conform with Canada's international and Charter obligations?

(b)         Did the officer make an error in law or in fact when assessing the evidence before her?

[3]                The first issue will not be dealt with since no constitutional questions were served to the Attorney General of Canada and the attorney general of each province as required by s. 57 of the Federal Courts Act, R.S.C. 1985, c. F-7.

CONCLUSION

[4]                For the reasons outlined below, this application for judicial review will be dismissed.

BACKGROUND

[5]                The Applicant, Mohinder Singh Gill (Mr. Gill, or the "Applicant") is a citizen of India, of Sikh religion, and is in his early forties. He is married with three children. His wife and children are presently still living in India. Mr. Gill is from the village of Folara in the province of Jammu and Kashmir, some two kilometres from the Pakistan border, where he owned some land. However, Mr. Gill says he could only work there for a limited time in the fields because of police mistrust, searches and excess since 1980.

[6]                Over a period of just under two years, Mr. Gill claims to have been arrested, detained and tortured by the police on at least two occasions, detained and tortured by border officials on at least one occasion, and subject to police searches and brutality on at least four occasions. His brother was also arrested, detained and tortured by the police on numerous occasions, culminating in his disappearance after a police arrest in late March 1997. For a period of time, Mr. Gill stayed in his uncle's home, which was also raided and searched by the police. His family back in Folara was subject to police harassment. Every time he was jailed, Mr. Gill was only released following the payment of a bribe. The second time he was jailed and then released (after a detention of about two weeks), allegedly for having helped infiltrate Pakistanis through the border (which Mr. Gill denies), Mr. Gill was forced to agree to spy in Pakistan on the activities of the militants.

[7]                Mr. Gill's father feared for Mr. Gill's safety and arranged to have an agent help him leave the country for Canada. On November 21, 1998, the Applicant went to New Delhi where he remained in hiding with an agent until his departure to Canada on December 30, 1998. While in hiding, Mr. Gill learned that his father had been arrested and tortured by the police, allegedly because of Mr. Gill's disappearance. Later, he learned that his father had died on December 29, 1998, and he claims that his father's death was a result of the police torture to which his father had been subjected.

[8]                The Applicant's refugee claim was rejected by the Refugee Protection Division ("RPD") of CIC on October 22, 1999 on the grounds that he was not credible. The RPD also found that the situation in Punjab Province of India had changed to such a degree that, even if Mr. Gill's story were true, it was reasonable to believe he would not be subject to a risk of torture or cruel and unusual punishment were he to return to India. Judicial review of this decision was denied.

[9]                On November 11, 1999, Mr. Gill submitted an application for permanent residency on humanitarian and compassionate grounds (the "H & C application" and "H & C grounds"). Following this application, a PRRA was held and a negative decision rendered on December 3, 2003. The H & C application was also rejected on December 9, 2003, and the Applicant's removal scheduled for January 28, 2004.

[10]            On January 26, 2004, a stay of execution of a removal order against the Applicant was granted by the Honourable Madam Justice Tremblay-Lamer pending resolution of this judicial review.

DECISION IN REVIEW

[11]            Much of the evidence submitted by the Applicant in support of his PRRA was given very little weight by the officer. There were two medical reports attesting that Mr. Gill suffered from post-traumatic stress disorder ("PTSD"); however, he first merely suggested a possibility of PTSD, and the second was based upon what the officer felt to be a very rudimentary examination of Mr. Gill. In addition, the officer noted the fact that despite these reports, Mr. Gill did not seem to be undergoing any sort of follow-ups (medication, etc.) to treat his alleged PTSD. As well, the officer felt a contradiction lay in the fact that in his H & C application, he had claimed that he had never suffered any mental illness, despite the existence of two medical reports claiming the contrary. In the officer's view, this contradiction was an indication of a lack of credibility.

[12]            Documents that the Applicant submitted attesting to medical care in India following his detentions by the police were found by the officer to not fully substantiate the Applicant's allegations of torture since nothing indicated that Mr. Gill's injuries were linked to torture from the police rather than obtained by some other means (e.g., a farming accident). Similarly, nothing on Mr. Gill's father's death certificate indicated the cause of death and so it too was accorded little weight toward supporting Mr. Gill's allegations of police persecution. Other documents submitted by Mr. Gill in support of his application, such as the documents from the Punjab Human Rights Organization, the letter from Mr. Gill's local Member of Assembly in India, and the affidavit from a village sarpanch, were found to be of little weight since they did not provide independent corroboration of Mr. Gill's version of events.

[13]            In light of the evidence submitted by Mr. Gill, combined with the documentary evidence on the state of human rights in India, the officer found it to be "improbable" that Mr. Gill would be targeted as a militant by the Indian authorities. The officer found Mr. Gill's evidence that he was only released from police custody following payment of bribes to fly in the face of documentary evidence that militants in police custody were not released even when offered a bribe. The officer also found other aspects of Mr. Gill's explanations unlikely: police persecution against him seemed contrary to his other statement (at the IRB hearing) that police evacuate inhabitants of villages when they expect confrontations; there is no basis for Mr. Gill having had to cross the border regularly and so his story of being detained and tortured at the border is unlikely; due to the nature of that region of India, the police would have known Mr. Gill and known how unlikely it was he could be a supporter of the militants; etc.

[14]            The officer found that the documentary evidence clearly indicated that being a Sikh no longer constituted a valid fear of persecution and that, since Mr. Gill was not a high profile militant suspect (if indeed he was a militant at all), he would not be at risk in India today. Finally, the officer said that Mr. Gill had not shown that his family was targeted, other than by the evidence of his own family members, and that having left his family in Falora where they would be at risk of police harassment and brutality was further proof that he did not truly fear such persecution.

SUBMISSIONS

The Applicant

[15]            The Applicant claims that his life and personal security are at great risk in India because the police wrongfully suspect him of being a terrorist or a sympathiser of militant Kashmiris. In her assessment of his PRRA claim, the officer (so the Applicant claims) did not properly take into account the submitted evidence and thus made flagrant errors regarding the situation in India, specifically concerning its respect for human rights. The Applicant also claims that the officer's decision does not take into account article 3 of the Convention against torture.

[16]            The Applicant states the officer erred in three specific ways:

(a)         by evaluating the evidence in a patently unreasonable manner;

(b)         by giving little or no weight to the evidence submitted; and,

(c)         by denying protection to the Applicant despite concluding he was a victim of extortion and police brutality.

[17]            First, the Applicant claims that the officer misinterpreted the evidence available so as to constitute patently unreasonable conclusions. One of the documents available, for example, outlined how many arrests and detentions are unlawful and arbitrary, since they are never acknowledged by the police and therefore not subject to judicial scrutiny. While these detentions used to target Sikhs, now they are more often held in connection with criminal investigations and, according to the Applicant, are often misused in order to raise money (assumedly from bribe payments to obtain release). The Applicant claims that in interpreting this documentary evidence, the officer examined the situation of Sikhs in general rather than Mr. Gill's particular situation.

[18]            The Applicant submits that the Court should bear in mind the principles laid out by Madam Justice Tremblay-Lamer in the case of Shahi v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1826 at para. 23, and her interpretation therein of a decision of the European Court of Human Rights:

Further, contrary to the immigration officer's findings, I consider that the Chahal v. United Kingdom 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.

[19]            The Applicant submits that in light of evidence submitted to the officer that the situation in India, and specifically in Punjab, has not truly changed with regard to corruption and arbitrary detentions and torture of innocent persons, the officer committed a reviewable error when she determined that the Applicant's fear of persecution was inconsistent with the objective documentary evidence. The Applicant submits that the officer further erred when she determined there existed an internal flight alternative (IFA) to the Applicant in India.

[20]            Second, the Applicant is of the opinion that the officer did not give proper regard to the evidence submitted, and that she erred in giving little probative value to much of the evidence submitted by the Applicant, such as his medical reports, in support of his application. In the Applicant's view, this is a violation of Mr. Gill's right to a fair hearing, and the medical evidence must be accepted unless the tribunal has valid reasons for setting it aside. In support of this position, the Applicant quotes at length from some cases in which the Court says the RPD must consider any evidence not emanating from the claimant's testimony that links the claimant to the persecution, and that the tribunal should take into account effects that a traumatic experience may have had on the claimant. In addition, medical evidence which corroborates a claimant's story should not be rejected without good reasons.

[21]            Finally, the Applicant claims that since the officer determined, on page 10 of her decision, that Mr. Gill, like many other Sikhs in Punjab, would have been a victim of extortion and police brutality, she could not then go on to reject Mr. Gill's claim. The Applicant submits that in the PRRA evaluation, it is not required that the risk be connected to a Convention ground, whereas in her decision, the officer seems to suggest exactly this.

The Respondent

[22]            First, the Respondent submits that the officer in the PRRA relied upon many sources of documentary evidence when reaching her decision, including many of the documents submitted by the Applicant, and that her conclusion that the Applicant would not face a personal risk if returned to India was reasonable since the documentary evidence on the state of Punjab is not unequivocal. It is also within the expertise of the officer, as primary fact-finder, to weigh the evidence in assessing the risk for the Applicant should he be forced to return, and this Court should not lightly intervene to substitute its analysis for that of the officer. Also, in the Respondent's view, article 3 of the Convention against torture has been respected since the Applicant has had a full judicial hearing regarding his refugee claim and subsequent PRRA .

[23]            Second, the Respondent claims that all the documentary evidence submitted to the officer was properly assessed by her, and that numerous reasons were given as to why this evidence was not being accorded much probative value. With regards to the medical reports, the officer underlines that in the first report, PTSD is mentioned but no positive diagnostic given, while the second report seems to lack authority due to the nature of its creation. Therefore, the Respondent claims, it was open to the officer to accord these documents, along with other documents submitted by the Applicant, low probative value.

[24]            Finally, the Respondent explains that the Applicant's contention that the officer acknowledged Mr. Gill was a victim of extortion and police brutality is a misunderstanding or misquote of the officer's reasons. The Respondent claims that the officer only said this in order to evaluate if the Applicant was justified in fearing persecution and that since the Applicant was also found to not be a high profile militant (if he was a militant at all), the risks were low.

ANALYSIS

The Standard of Review

[25]            The Applicant argues that since the alleged errors the officer made are errors of law, the standard of review should be correctness or, at the very least, since a decision of a PRRA officer is at stake, reasonableness simpliciter. The Applicant states that this decision is not one that turns on credibility, as the Respondent suggests, but on the plausibility of many of the Applicant's submissions.

[26]            However, it would seem more accurate to characterize the officer's decision as one based on credibility, and the problems the Applicant has outlined as being related to the weight the officer gave to some of the evidence. Therefore, the standard to be applied will be whether the decision is reasonable.

Did the officer make an error in law or in fact when assessing the evidence before her?

[27]            According to the Applicant, there are three ways in which the officer erred in the actual decision:

(a)         by evaluating the evidence in a patently unreasonable manner;

(b)         by giving little or no weight to the evidence submitted; and,

(c)         by denying protection to the Applicant despite concluding he was a victim of extortion and police brutality.

[28]            The first two complaints above are really interrelated. However, on a preliminary review of the record, it does not seem that the officer evaluated the evidence in an unreasonable manner. The conclusions she reached in regards to each of the pieces of evidence were reasonably open to her to make. In light of the documentary evidence available to her, she concluded there was no credible reason to believe Mr. Gill's story of persecution at the hands of the police on the grounds he was a militant or supporter of the militants, and that, even if he had been persecuted at one point by the police, there was no credible reason to believe, in light of recent developments over the past few years in India and in Punjab Province, that this persecution would continue. This was especially the case if Mr. Gill was to avail himself of an internal flight alternative in India.

[29]            The medical reports do not purport to conclusively establish that Mr. Gill was a victim of torture; they merely state that such torture was consistent with his scars and with his apparent condition of PTSD. It was therefore open to the officer to reject such evidence, or to give it little weight. The same can be said for the other evidence to which the officer accorded little weight.

[30]            As for the third ground upon which the Applicant claims the officer erred, unfortunately it is not clear from the decision whether the officer actually did acknowledge that Mr. Gill had been a victim of extortion and police brutality. The Applicant cites the third paragraph on page 10 of the officer's decision, the beginning of which reads :

According to the objective documentation consulted, the application would have been a victim, like many other Sikhs in Punjab, of extortion and police brutality.

[31]            The Respondent, in response, argues that the support for the Applicant's allegation is not cited in its exact context, and in turn cites from page 8 of the officer's decision:

The fact that the Applicant was released after being arrested without being charged for terrorism and that he was released after paying a bribe is indicated in the objective documentation consulted as being a way for local police to spruce-up their low income. The simple fact that the Applicant was released every time underlines the fact that the police did not suspect the Applicant of being a militant, of being a terrorist.

[32]            The Respondent claims that this paragraph was meant to be illustrative of how, even if he was arrested and detained on a few occasions, Mr. Gill was never suspected of being a terrorist or militant and thus had nothing to fear in terms of persecution upon his return to India. I agree with the Respondent. A decision has to be read as a whole and, having done that, the explanation given by the Respondent makes sense.

[33]            The Applicant was found to be not credible before both the RPD and the PRRA officer. There is no reason for the Court to intervene. The decision speaks for itself and it is overall a reasonable decision.

[34]            Counsel for both parties were asked to propose questions for certification. Counsel for the Applicant wanted time to consider the drafting of such a question. The Court refused this request since there was ample time to consider such a question prior to the hearing. Counsel for the Respondent submitted that this file did not present any element to justify a consideration of a certified question. I agree. This file concerns itself solely with the credibility of the Applicant.

                                               ORDER

THIS COURT ORDERS THAT:

-           The judicial review is dismissed and no question will be certified.

-           The style of cause be amended to replace the Respondent the Minister of Citizenship and Immigration with the Solicitor General of Canada.

                "Simon Noël"                 

         Judge

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-479-04

STYLE OF CAUSE:

MOHINDER SINGH GILL

                                                                                            Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                        Respondent

PLACE OF HEARING:                                 Montréal, Quebec

DATE OF HEARING:                                   October 20, 2004

REASONS FOR ORDER :                          The Honourable Mr. Justice Simon Noël

DATED:                     October 28^th, 2004

APPEARANCES:

Mr. Stewart Istvanffy                                         FOR APPLICANT

Ms. Diane Lemery                                             FOR RESPONDENT

SOLICITORS OF RECORD:

Stewart Istvanffy                                                FOR APPLICANT

Montréal, Quebec

Morris Rosenberg                                              FOR RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec