Date: 20081126
Docket: IMM-1005-08
Citation: 2008 FC 1320
Ottawa, Ontario, November 26,
2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
BALVINDER KAUR, MANINDER KAUR
and SARABJIT SINGH
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the negative
decision of a Pre-Removal Risk Assessment (PRRA) Officer (Officer) dated
January 23, 2008 and communicated to the Applicants on February 20, 2008
(Decision).
BACKGROUND
[2]
Balvinder
Kaur (Principal Applicant) was born in Punjab, India to a Sikh
family. She was married on March 1, 1970 and has five daughters and one son.
[3]
After
the murder of Prime Minister Indira Gandhi in 1984 by her Sikh body guards, the
Sikh community in India was aggressively targeted by Hindus. The Principal
Applicant alleges that her house in New Delhi was attacked several
times by Hindu militants in the 1990s.
[4]
At
the first attack, the Principal Applicant alleges she was beaten by fists and
sticks, that her house was destroyed and her valuables taken. She was also threatened
that, if she informed police, it would happen again. However, the Principal Applicant
says she did attend a police station in New Delhi, but the police
officer refused to write a report.
[5]
During
the second alleged attack on the home of the Principal Applicant, she says that
she and her children were beaten very badly. This provoked a move to a
different area of New Delhi.
[6]
Two
years later, the Principal Applicant says that four Sikh terrorists entered her
home illegally, with guns, and asked to be served dinner. They left in the
early morning but they appeared several days later and demanded 20,000 rupees,
saying they would kidnap the Principal Applicant’s children if they were not
paid the next time they came.
[7]
The
Principal Applicant says that she and her husband were asked to attend the
police station to answer questions about the Sikh terrorists. She says they
were detained, beaten and questioned about whether they had any connections
with the terrorists. Relatives of the Principal Applicant bribed officials to
let her and her husband go. She says they were advised by their families to
leave the country for good.
[8]
From
late 1995 until October 1996, the Principal Applicant, her husband and all of
their unmarried children sold their property and applied for the necessary
visas to move to the USA. The Principal Applicant arrived on
October 1, 1996 in the USA with her oldest daughter and her son. Her husband
arrived with their two younger daughters on October 3, 1996. The Applicants
applied for asylum in the USA in 1997 and were rejected in 2000. They
appealed the decision, but in October 2003, the appeal was rejected and the
Applicants were required to leave the USA.
[9]
The
Applicants arrived in Canada and sought status as Convention refugees or
persons in need of protection. Refugee protection was denied and leave to
appeal to the Federal Court was denied on June 16, 2006.
DECISION UNDER REVIEW
[10]
The
Officer received a PRRA application dated August 14, 2006 with submissions
dated August 29, 2006. No oral hearing was held.
[11]
The
Officer noted that the Applicants had made a previous claim for Convention
refugee status in Canada and had been denied by the Immigration and
Refugee Board (Board) on March 6, 2006. The Board cited the following reasons
for its decision:
1.
The
violence perpetrated by Hindu extremists between 1984 and 1993 are acts of
random violence. I find that, as a result, with the changed conditions
respecting Sikhs in India, the claimant’s fear to return to India on this basis
is not well founded;
2.
The
home invasion by Sikh militants, narrated by the Principal claimant, on a
balance of probabilities did not occur. I make this finding because this type
of activity was isolated to the Punjab and by 1993 did not occur very often, if
at all, in the capital, Delhi, some 200 kilometres from Punjab state. Even
though I find, on balance, that the invasion did not occur, I find that there
is no reasonable chance that the same militants would be interested in
kidnapping or killing the claimants in 2006, ten years after the claimants left
Delhi for America;
3.
There
is always a possibility in India that the claimants would be kidnapped,
killed or their home invaded. However, I find that this possibility is no
greater for these claimants than anyone else in India, which is
not a personal danger;
4.
I
find it more likely than not that the police have no interest in the claimants.
The police would be much more interested in finding and prosecuting militant[s]
than innocent storekeepers or homemakers. Certainly there is no reasonable chance
that the police are interested in the claimants today.
[12]
The
Officer relied upon section 113(a) of the Act and section 161(2) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations), stating at
page 3 of the Notes to File as follows:
The applicants are restating materially
the same circumstances which they articulated before the Immigration and
Refugee Board. They have not rebutted the significant findings of the Board.
They have provided documentation in support of the present applications. This
consists of the U.S. Department of State report on India for 2005, partial
internet news articles on police brutality, an article (undated) concerning atrocities
perpetrated against the Sikhs and the medical report of Dr. Meier of Mount Sinai Hospital in Toronto. Some of the documents
presented predate the Board’s decision and were available or were considered by
the Board. The remaining material is generalized in nature and does not address
the particular circumstances of the applicants or rebut the findings of the
Board. I do not find that any of this material is evidence of new risk
developments which are personal to the applicants and which have arisen since
the date of the Board’s decision. The undated article mentioned above appears
to refer to historical incidents, not recent events. Its contents are not borne
out of the most recent research on county conditions. I have, however,
considered all of this material in the context of my assessment of country
conditions.
[13]
The
Officer goes on to rely upon the decision of Justice Kelen in Kaybaki v. Canada (Solicitor
General of Canada) 2004 FC 32, which states at para. 11 that “The
PRRA application cannot be allowed to become a second refugee hearing. The PRRA
process is to assess new risk developments between the hearing and the removal
date.”
[14]
The
Officer concludes that the Applicants have not presented sufficient objective
evidence of any change of conditions in India since the
Board’s decision or of any new risk developments.
ISSUE
[15]
The
Applicants have raised the following issue for review:
1. The
Respondent erred in law in failing to provide reasons in compliance with Baker.
STATUTORY PROVISIONS
[16]
The
following provisions of the Act are applicable in these proceedings:
|
Application for protection
112. (1) A person in
Canada, other than a person referred to in subsection 115(1), may, in
accordance with the regulations, apply to the Minister for protection if they
are subject to a removal order that is in force or are named in a certificate
described in subsection 77(1).
Consideration of application
113. Consideration of an
application for protection shall be as follows:
(a) 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;
(b) a hearing may be held if the Minister, on the basis of
prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in subsection
112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection 112(3),
consideration shall be on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on
grounds of serious criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other applicant, whether the application should
be refused because of the nature and severity of acts committed by the
applicant or because of the danger that the applicant constitutes to the
security of Canada.
|
Demande de
protection
112. (1) La
personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1)
peut, conformément aux règlements, demander la protection au ministre si elle
est visée par une mesure de renvoi ayant pris effet ou nommée au certificat
visé au paragraphe 77(1).
Examen de la demande
113. Il est disposé de la demande comme il suit :
a) le demandeur d’asile débouté ne peut présenter que des
éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas
normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable,
dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment
du rejet;
b) une audience peut être tenue si le ministre l’estime
requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au paragraphe 112(3),
sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au paragraphe 112(3), sur
la base des éléments mentionnés à l’article 97 et, d’autre part :
(i) soit du fait que le demandeur interdit de territoire
pour grande criminalité constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur, du fait
que la demande devrait être rejetée en raison de la nature et de la gravité
de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada.
|
[17]
The
following provisions of the Regulations are also applicable in these
proceedings:
|
New
evidence
(2) A person who makes written submissions must identify the evidence
presented that meets the requirements of paragraph 113(a) of the Act
and indicate how that evidence relates to them.
|
Nouveaux éléments de
preuve
(2) Il désigne, dans ses observations écrites, les
éléments de preuve qui satisfont aux exigences prévues à l’alinéa 113a)
de la Loi et indique dans quelle mesure ils s’appliquent dans son cas.
|
STANDARD OF REVIEW
[18]
In
Cupid v. Canada (Minister of Citizenship and Immigration) 2007 FC 176,
this Court held as follows:
6. The first argument of the
Applicant is that the PRRA Officer erred by failing to provide adequate reasons
for her decision. Since this is an allegation that the PRRA Officer failed to
comply with the rules of procedural fairness, the question for judicial review
is not the subject of a standard of review. Either the PRRA Officer provided
adequate reasons or she did not.
ARGUMENTS
The
Applicants
[19]
The
Applicants rely on Perez v. Canada (Minister of
Citizenship and Immigration) 2006 FC 1380, for what that case says
about the purpose of a PRRA:
12. It is well-established that a PRRA
is not intended to be an appeal of a decision of the RPD (Kaybaki v. Canada
(Solicitor General of Canada), 2004 F.C. 32 at para.11; Yousef
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1101
at para. 21 (F.C.); Klais v. Canada (Minister of Citizenship and
Immigration), [2004]
F.C.J. No. 949 at para. 14 (F.C.)). The decision of the RPD is to be considered
as final with respect to the issue of protection under s.96 or s. 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), subject only to
the possibility that new evidence demonstrates that the applicant would be
exposed to a new, different or additional risk that could not have been
contemplated at the time of the RPD decision. Thus, the PRRA Officer is under
no obligation to assess the alleged risks now identified by the Applicant. I
will not turn to the facts of this PRRA application.
[20]
The
Applicants acknowledge that Perez narrowly defines the scope of
examination for PRRA officers. However, the Applicants say that the Decision,
particularly in relation to the Officer’s review of current county conditions,
is devoid of analysis. The Applicants point to the fact that there were just under
100 pages of information on country conditions, yet nothing specific was outlined
by the Officer about that information.
[21]
The Applicants go on to submit that a final
examination of risk should be reviewed prior to removing an applicant: Say
v. Canada (Solicitor
General), 46 Imm. L.R. (3d) 255 (F.C.). The
Applicants propose that the only way to ensure a risk assessment is carried out,
as contemplated by Parliament, is through meaningful reasons that clearly
demonstrate that all of the evidence before the tribunal was considered: Baker
v. Canada
(Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817 (Baker). The Applicants rely upon Raudales v. Canada (Minister
of Citizenship and Immigration) 2003 FCT 385, which cites Canada
(Director of Investigation and Research, Competition Act) v. Southam Inc.,
[1997] 1 S.C.R. 748, for the proposition that an unreasonable decision is one
that is not supported by any reasons that can stand up to a “somewhat probing
examination.”
[22]
The Applicants submit that there is a need for
meaningful reasons on PRRA decisions: Dervishi v. Canada (Minister of
Citizenship and Immigration) 2006 FC 354.
[23]
The
Applicants conclude that the reasons in the present case do not disclose a
meaningful examination of the evidence that was before the Officer. They say
they are not much more than a boilerplate which could be used for hundreds of
similar cases. They consist principally of a series of conclusions.
[24]
The
Applicants suggest that the Respondent’s assertion that “it was not for the
Officer to ‘meaningfully examine’ the evidence (that had already been done by
the RPD)” and that it was up to the Applicants to demonstrate that the RPD’s
decision should no longer apply, is an admission that the Officer did not
“meaningfully examine” the evidence. The Applicants submit that the
Respondent’s contention that an examination is not necessary because of the
evidentiary burden on the Applicants does not alleviate the necessity for the
decision-maker to examine the evidence adduced, and to render reasons which
reflect such an examination.
The
Respondent
[25]
The
Respondent relies upon section 113(a) of the Act and 161(2) of the Regulations.
Section 113(a) says that, at a PRRA hearing, applicants may only present new
evidence that arose after the rejection of their refugee claim, or evidence
which was not reasonably available or that an applicant “could not reasonably
have been expected to have presented” to the Board.
[26]
The
Respondent says that the PRRA process is not an appeal of the Board’s
determination. It is only an opportunity for a deportable individual to adduce
that they are now at risk due to new, updated evidence for an assessment of new
risk developments since the date of the refugee hearing: Raza v. Canada (Minister
of Citizenship and Immigration) 2007 FCA 385; Hausleitner v. Canada (Minister
of Citizenship and Immigration) 2005 FC 641; H.K. v. Canada (Minister of
Citizenship and Immigration) 2004 FC 1612 and Kaybaki v. Canada (Minister
of Citizenship and Immigration) 2004 FC 32.
[27]
The
Respondent notes that, as was pointed out in Raza, s. 113(a) of the Act
was enacted to prevent “abusive re-litigation.” The process assumes that a
negative Board decision must be respected by a protection officer, unless there
is new evidence of facts that might have affected the outcome. Only “material”
evidence needs to be considered by a protection officer and that evidence is
only “material” if the refugee claim “probably” would have succeeded if the
evidence had been before the Board. Any alleged new evidence must be rejected
if it does not prove that the relevant facts on the date of the protection
decision are materially different from the facts found by the Board.
[28]
The
Respondent concludes that the Officer’s findings are reasonable and that the
Applicants have failed to demonstrate any errors. The Applicants simply
disagree with the outcome, which is not a proper basis for an application to
this Court. The onus was on the Applicants to demonstrate that the RPD decision
no longer applied. The Applicants’ s. 96 claim was rejected by the RPD and
there was no basis for disturbing that in the Respondent’s mind, particularly
in light of the Applicants’ delay in claiming, and the plausibility of their
account. In relation to the s. 97 claim, the Applicants failed to demonstrate
they were more likely than not to suffer any risk.
ANALYSIS
[29]
The
Applicants’ assertion that the Decision is devoid of analysis “in particular in
relation to the review of current country conditions” is not born out by a
reading of the Decision.
[30]
The
Officer refers to the documentation submitted by the Applicants and explains
that “some of the documents presented predate the Board’s decision and were
available or were considered by the Board. The remaining material is
generalized and does not consider the particular circumstances of the applicants
or rebut the findings of the Board.”
[31]
The
Officer goes on to explain as follows:
I do not find that any of this material
is evidence of new risk developments which are personal to the applicants and
which have arisen since the date of the Board’s decision. The undated article
mentioned above appears to refer to historical incidents, not recent events.
Its contents are not borne out in the most recent research on country
conditions. I have, however, considered all of this material in the context of
my assessment of country conditions.
[32]
The
Applicants’ complaint is that there is no analysis of the stated risks against
the current country conditions. In other words, even if the stated risk remains
the same, a change in country conditions might warrant a finding of danger to
the Applicants if returned. The Applicants say that the Officer does not
adequately address this issue.
[33]
The
Officer’s analysis, and the extent of the reasons have to be viewed against the
background of the Board’s findings, including the findings that the Applicants
faced no greater risk than anyone else in India, that the invasion by the Sikh
militants did not occur, and that the police had no interest in the Applicants.
[34]
The
Officer’s conclusion that there was no evidence of new risk developments
personally affecting the Applicants was entirely reasonable on the basis of the
submissions and the evidence before him. The fact that he may have used
language that appears in other cases does not mean there was no meaningful
analysis. PRRA officers hear many cases and there is a limit to the number of
linguistic variations they can employ to describe their findings.
[35]
The
Officer also clearly says that he reviewed all of the evidence as well as the
current country conditions. In the context of this case, I do not think it was
necessary for the Officer to explain anything further. It must be clear to the
Applicants that, looking at India today, the Officer has found that any
risks they raise are still no greater than those faced by anyone else in India.
[36]
The
Applicants have made no submission that suggests that the Officer was
unreasonable in his findings and conclusions on the evidence presented by the
Applicants and in light of current country conditions. In my view, the reasons
in this case were also adequate and in compliance with Baker. There is
no reason to interfere with this Decision.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
Application is dismissed.
2. There is no
question for certification.
“James
Russell”
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