Date: 20081114
Docket: IMM-5481-07
Citation: 2008 FC 1263
Ottawa, Ontario, this 14th
day of November 2008
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
SINGH,
Jarnail
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for the judicial review of a pre-removal risk assessment (“PRRA”)
officer’s decision dated November 29, 2007, refusing the applicant’s request
for an exemption from the requirement to obtain a permanent resident visa from
outside Canada, based on humanitarian and compassionate (“H&C”) grounds,
filed under subsection 25(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “Act”).
* * * * * *
*
[2]
The
applicant, Jarnail Singh, is a citizen of India, from the state of Punjab. He is a
practicing member of the Sikh religion.
[3]
The
applicant arrived in Canada from India on October 3, 2003 and
sought refugee protection on October 6, 2003. A negative determination came
down from the Immigration and Refugee Board on May 18, 2004 based on the
question of the applicant’s identity, not on any consideration of the merits.
Leave for judicial review was refused on September 15, 2004.
[4]
On
January 31, 2005 Mr. Singh applied for permanent residence on humanitarian or
compassionate grounds, pursuant to subsection 25(1) of the Act. In the
affidavit accompanying his application for refugee status, he described three
incidents of arbitrary detention by Indian police:
- August 15, 1985: Following the
assassination of Hindu worshippers by unidentified Sikhs near the Sikh
temple in his village, the applicant (who was present at the temple at the
time of the killing) was falsely accused of providing shelter to the
killers. After four days of detention and torture, he was released and
told to locate his cousin, a suspected militant, within a month. The
applicant later learned that the station house officer had accepted a
heavy bribe from the applicant’s family for his release.
- September 2, 1995: Following the
assassination of a Chief Minister of Punjab, the applicant and his uncle were
detained for three days and tortured by police, who interrogated them
about the applicant’s cousin. Both men were hospitalized thereafter; his
uncle died of his injuries.
- September 15, 2003: The applicant
discovered two revolvers on a portion of land he farmed that belonged to
his cousin. He reported the matter to the police, and again was accused of
complicity with his cousin. He was interrogated and tortured for five
days, then released because of bribes paid to the station house officer.
His photograph and fingerprints were taken, and he was threatened with
death if he did not locate the hidden ammunition, his cousin and his
associates, within the next thirty days. It was after this last episode
that the applicant decided to flee India.
[5]
The
applicant reports that his wife and three children continue to suffer threats
from the police, and have been forced to flee their home. The applicant fears
that, should he return to India, he will be interrogated for his past
activities and regarding his stay in Canada.
[6]
Since
his arrival in Canada, the applicant has held a valid work permit. He
has been continuously employed since September 2004, first as a taxi driver,
and then, since September 2005, as a self-employed truck driver. He is a member
of the Sikh community in Montréal, and does volunteer work at his temple.
* * * * * * *
*
[7]
In
reasons dated November 29, 2007, the PRRA officer who considered Mr. Singh’s
application concluded that he would not face unusual or disproportionate
hardship were he required to apply for permanent residency from India.
[8]
The
issues raised in the present case are the following:
- Did the officer err in failing to
consider evidence within the record that materially supported the
applicant’s claim?
- Did the officer err by applying the
wrong test in his analysis of the applicant’s H&C claim?
* * * * * * * *
1. Did
the officer err in failing to consider evidence within the record that
materially supported the applicant’s claim?
[9]
It
is well-established that the decision of an immigration officer made pursuant
to subsection 25(1) of the Act is reviewable on a standard of reasonableness (see
Baker v. Canada (Minister of
Citizenship and Immigration, [1999] 2 S.C.R. 817, and Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190).
[10]
I
agree with the applicant that the officer was selective in his consideration of
the documentary evidence before him. For instance, the officer relied on
various sources to support his conclusion that general conditions for Sikhs in India have
stabilized since 1995. While acknowledging the fact that Amnesty International
“found that torture and violence in police custody continued to be regularly
reported in Punjab,” he also
accepted that this was due to difficult working conditions faced by police
officers. No mention is made in his reasons of the U.S. State Department’s
observations in its country report that, as late as 2006, “Government forces
continued arbitrary and unlawful deprivation of life of those in their custody.”
According to the U.S. Department of State’s Country Reports on Human Rights
Practices – 2006: India (March 6, 2007), in that year:
. . . Major problems included
extrajudicial killings of persons in custody, disappearances, torture and rape
by police and security forces. The lack of accountability permeated the
government and security forces, creating an atmosphere in which human rights
violations often went unpunished.
[11]
The
report later adds, at page 7, “The law prohibits torture and generally did not
allow for confessions extracted by force to be admissible in court; however,
authorities often used torture during interrogations to extort money and as
summary punishment.”
[12]
On
the question of relocation in India to avoid persecution and unusual and
undeserved or disproportionate hardship, the officer nowhere mentions the
following evidence from the UK Country of Origin Information Report – India,
“Internal Relocation for Sikhs”, at paragraph 19.103, that was before him,
which contradicts his conclusions:
The US Citizenship and Immigration
Services, in a response to a query (updated on 22 September 2003), noted that:
“Observers generally agree that Punjab
police will try to catch a wanted subject no matter where he has relocated in
India. Several say, however, that the list of wanted militants has been
winnowed [whittled] down to ‘high-profile’ individuals. By contrast, other Punjab
experts have said in recent years that any Sikh who has been implicated in
political militancy would be at risk anywhere in India. Beyond this dispute over who is actually
at risk, there is little doubt that Punjab police will pursue a wanted suspect
[…].”
(My emphasis.)
[13]
I
agree with the applicant that Thang v. The Solicitor General of Canada,
[2004] F.C.J. No. 559 (QL), 2004 FC 457 (citing Cepeda-Gutierrez v. Minister
of Citizenship and Immigration, [1998] F.C.J. No. 1425 (QL)) states the
applicable principle in this case: “the more central a document is to the issue
to be decided, the greater the obligation on the decision-maker to deal with it
specifically.” In Cesar v. Minister of Citizenship and Immigration,
[2004] F.C.J. No. 642 (QL), 2004 FC 536, Justice Mosley adds at paragraph 23:
“where there is probative evidence contradictory to the Board’s own findings on
a relevant and important issue to the claim, and this is not mentioned by the
Board, an apprehension is raised that the Board failed to consider it.” See
also Kaur v. Minister of Citizenship and Immigration, [2005] F.C.J. No.
1858 (QL), 2005 FC 1491. I believe that this principle applies equally to PRRA
officers as to other decision-makers.
[14]
There
is some ambiguity in the jurisprudence of this Court as to whether Cepeda-Gutierrez
requires that evidence not addressed by a decision-maker be “specific
and personal to the applicant”, as opposed to merely “general documentary
evidence”
(see, for instance, Nation-Eaton v. Minister of Citizenship and Immigration, [2008] F.C.J. No. 370
(QL), 2008 FC 294, at paragraph 20). Nevertheless, even if one were to
insist on finding reviewable error only where there is a failure to consider
evidence “specific and personal to the applicant,” such error is present here
because nowhere in his reasons does the officer consider the evidence in the
record regarding the link between Mr. Singh’s mistreatment and his alleged
relationship with his cousin; instead, he focuses on the applicant’s religion
as the sole basis for his misfortune.
[15]
Accordingly,
I find that the officer’s failure to specifically address probative evidence
that materially contradicted his own findings constitutes an error rising to a level of
unreasonableness that justifies this Court’s intervention.
2. Did the officer err by
applying the wrong test in his analysis of the applicant’s H&C claim?
[16]
This
second question is one of law and bears on the proper test to apply in an
application under subsection 25(1) of the Act. It therefore attracts review on
a standard of correctness. In Ramirez v. Minister of Citizenship and
Immigration, [2006] F.C.J. No. 1763 (QL), 2006 FC 1404, 304 F.T.R. 136, Justice
de Montigny, at paragraph 42, writes:
[42] It is beyond dispute that the concept of “hardship”
in an H&C application and the “risk” contemplated in a PRRA are not
equivalent and must be assessed according to a different standard. As explained
by Chief Justice Allan Lutfy in Pinter v. Canada (Minister of Citizenship and
Immigration), [2005]
F.C.J. No. 366, 2005 FC 296:
[3] In
an application for humanitarian and compassionate consideration under section
25 of the Immigration and Refugee Protection Act (IRPA), the applicant's
burden is to satisfy the decision-maker that there would be unusual and
undeserved or disproportionate hardship to obtain a permanent resident visa
from outside Canada.
[4] In
a pre-removal risk assessment under sections 97, 112 and 113 of the IRPA,
protection may be afforded to a person who, upon removal from Canada to their country of nationality, would be subject to a risk
to their life or to a risk of cruel and unusual treatment.
[5] In
my view, it was an error in law for the immigration officer to have concluded
that she was not required to deal with risk factors in her assessment of the
humanitarian and compassionate application. She should not have closed her mind
to risk factors even though a valid negative pre-removal risk assessment may
have been made. There may well be risk considerations which are relevant to
an application for permanent residence from within Canada which fall well below the higher
threshold of risk to life or cruel and unusual punishment. [Emphasis added]
[17]
This
Court has in several cases emphasized the importance of assessing an H&C
claim through the lens of “hardship”, as distinct from that of “risk” applied
in relation to a PRRA (see Uddin v. Minister of Citizenship and Immigration,
[2003] F.C.J. No. 460 (QL), 2003 FCT 316; Serda v. Minister of
Citizenship and Immigration, [2006] F.C.J. No. 425 (QL), 2006 FC 356, and Sha’er
v. Minister of Citizenship and Immigration, [2007] F.C.J. No. 297 (QL),
2007 FC 231).
[18]
In
this case, the officer concludes his analysis of risk factors by stating:
Based
on the available documentation, the applicant could re-establish himself
elsewhere in India thereby avoiding unusual and
undeserved or disproportionate hardship. As a result, I am inclined to
assign only limited weight to this factor for granting an exemption on
humanitarian and compassionate grounds.
(My emphasis.)
[19]
However,
it is not enough to merely employ the language found in Citizenship and
Immigration Canada’s operational manual regarding hardship (“IP 5 -
Immigration Applications in Canada Made on Humanitarian or Compassionate
Grounds”); the analysis must reflect that this was the test actually applied (see
Latifi v. Minister of Citizenship and Immigration, [2006] F.C.J. No.
1739 (QL), 2006 FC 1389, at paragraphs 28 to 36). Here, the officer summarizes
his findings regarding risk as follows:
Individually,
the pieces of evidence submitted by the applicant do not conclusively establish
that he was the victim of torture at the hands of Indian authorities. However, taken
as a whole, these submissions do provide limited support for the applicant’s
allegations about serious mistreatment by the police. Nevertheless, the
following documentation points towards an improved situation in India, particularly for Sikhs, which indicates that the applicant
could relocate to avoid persecution.
(My
emphasis.)
[20]
This
passage shows that the focus of the officer’s analysis was the personalized
risk of torture or persecution that the applicant faced in India at the hands of the
police. The ensuing passages turn to the prospect of further persecution or
torture based on his religion, emphasizing the relative improvement in
conditions for Sikhs in India, and consequently the
unlikelihood that the applicant would face further mistreatment. There is no
consideration given to the hardship that would be faced by the applicant or his
family in view of other factors, such as his family’s continued harassment in India by the police, and the
applicant’s fearfulness due to his apparent notoriety with the police based on
his association with his cousin.
[21]
I
therefore find that the officer erred in law by applying the incorrect test to
the H&C analysis in his determination of hardship.
* * * * * * * *
[22]
For
all the above reasons, the application for judicial review is allowed, the PRRA
officer’s decision dated November 29, 2007 is set aside and the matter is sent
back to a different PRRA officer for reconsideration in accordance with the above
reasons.
JUDGMENT
The application for judicial review is allowed.
The decision of a pre-removal risk assessment (“PRRA”) officer dated November
29, 2007, refusing the applicant’s request for an exemption from the
requirement to obtain a permanent resident visa from outside Canada, is set aside and the matter
is sent back to a different PRRA officer for reconsideration.
“Yvon Pinard”
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