Date:
20130501
Docket:
IMM-6263-12
Citation:
2013 FC 454
Ottawa, Ontario,
May 1, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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MANGA SINGH SOHANPAL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of J. Gaumont (the
“Officer”), Senior Immigration Official of Citizenship and Immigration Canada
(CIC), refusing Mr. Manga Singh Sohanpal’s (the “Applicant”) application for a
pre-removal risk assessment (PRRA) pursuant to section 112 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA or the “Act”).
[2]
In
addition to seeking reconsideration of his PRRA application, the Applicant
requests the following declarations: that there is a favourable presumption in
PRRAs for torture victims, who should be accepted in the absence of any
countervailing factors because of our abhorrence of torture as a serious crime
in international law; that the situation in India and in the Punjab today is
one where there is a serious risk of torture for those who have been previously
targeted by the police, including political activists and human rights workers;
and that removal of these categories of persons would violate the Canadian
Charter of Rights and Freedoms (the “Charter”).
[3]
There
will be no need to consider the declaratory relief sought by the Applicant.
Sections 18, 18.1 and 28 of the Federal Courts Act, RSC 1985, c F-7,
empower this Court to issue declaratory relief in relation to judicial review
proceedings; however, the scope of such declaratory relief in relation to
judicial review is not unlimited. Pursuant to paragraph 18(1)(a), the Court
may grant declaratory relief against any federal board, commission or other
tribunal, but paragraph 18.1(3)(b) limits this power to declaring invalid or
unlawful a decision, order, act or proceeding of a federal board, commission or
other tribunal. The above declarations sought by the Applicant clearly go beyond
the declaratory powers of this Court in relation to judicial review. As a
result, I shall only address the Applicant’s request regarding the quashing and
potential reconsideration of the Officer’s decision.
[4]
For
the reasons set out below, I find that this application for judicial review
should be dismissed.
Facts
[5]
The
Applicant, a citizen of India born December 29, 1970, arrived in Canada on September 15, 2002, and was refused refugee status by the Immigration and Refugee
Board (IRB or the “Board”), Refugee Protection Division (RPD) on October 7,
2004. The Applicant has a wife and three children residing in India. An application for leave to apply for judicial review from the refusal of his
initial refugee claim was refused on January 27, 2005. The Applicant’s PRRA
request was submitted January 19, 2012, and rejected on April 26, 2012.
[6]
The
RPD refused the Applicant’s claims, finding him to be generally lacking in
credibility. The RPD also concluded that internal flight alternatives (IFAs)
would be available to the Applicant throughout India as his claims that the
police were pursuing him everywhere in India were not credible. Objectively,
the RPD concluded that Sikh males in Punjab are not a category to be considered
at risk per se, and it did not give any credibility to various medical
reports submitted by the Applicant or to allegations of his imputed political
opinion. The RPD considered the documentary evidence on the treatment of
returned asylum seekers due to illegal departure from India and concluded that any fear held by the Applicant in this regard is a fear of
possible prosecution and not persecution, as there was no evidence of
systematic mistreatment or torture of returnees. Finally, the RPD concluded
that any risk under section 97 was not personalized.
[7]
The
Applicant is a Sikh believer who claims to have been a victim of harassment and
abuse by the Indian police because of his alleged involvement and association
with Sikh militants.
[8]
The
Applicant’s problems with the Indian police began in January 2002. At the time,
his cousin and one of his employees were associated with militant activity and,
as a result, the police suspected the Applicant in connection with the December
2001 attack on Parliament. The Applicant was arbitrarily detained, despite
having no knowledge of his associates’ militant involvement and the police
having no evidence of any wrongdoing on his part.
[9]
The
Applicant alleges that the police beat him and threatened his life in an
attempt to gain information. He was released only once they had taken his
picture and fingerprints and on the payment of a bribe, following the
intervention of certain high-ranking people.
[10]
The
Applicant was told to report to the police station in March, April and June
2002, and was arrested again in July 2002 on the allegation that he had contact
with the militants. The Applicant claims to have been beaten but was released
after paying a bribe and agreeing to work for the police.
[11]
The
Applicant argues in his submissions before this Court that the police raided
his house in August of 2002, beating his wife and detaining his father.
Elsewhere the Applicant claims that he and his family moved cities to escape
attention, but the police apparently tracked him down and he was forced to flee
to Canada. He alleges that the police continue to question his family
regarding his whereabouts and that his parents have both passed away due to
depression and stress suffered as a result of the police’s constant harassment
and assaults.
[12]
The
Applicant claims to have left India under an alias with false travel documents
and fears that he will be sentenced to prison upon return as this is against
the law in India. In addition, the Applicant’s representative asserts that, in
order to obtain a travel document, the Applicant was forced to complete a form
addressed to the Indian High Commission in Ottawa, in which he was asked to
indicate whether he had filed a refugee protection claim in Canada and, if so, on what grounds.
Decision under
review
[13]
The
Officer rejected the Applicant’s PRRA application, determining that he would
not be at risk of persecution, torture, risk to life or risk of cruel and
unusual treatment or punishment if returned to India.
[14]
The
Officer acknowledged the Applicant’s version of the facts and summarized the
exhibits filed in support of his PRRA application. The Applicant had submitted
four affidavits from his wife and acquaintances in India, but the Officer found
that the affidavits relayed substantially the same allegations that were made
to the RPD and noted that the Applicant could not explain why he was unable to
present this evidence at the time of his RPD hearing in 2004. Finding that the
affidavits did not shed light on facts already deemed not to be credible by the
RPD, the Officer did not assign any evidentiary value to them. The Officer
noted that the wife merely reasserted facts found not to be credible by the RPD
and that the remaining affiants said that they were “aware” of the facts
alleged, but did not state that they were direct witnesses of any of the
reported incidents.
[15]
The
Officer concluded that the Applicant had failed to discharge his burden of
proving that he was at risk under sections 96 or 97 of the Act. His claims that
he was still pursued by the Indian authorities were previously rejected by the
RPD and the PRRA is not an appeal process or opportunity for review of a
decision of the RPD but is focused instead on “new information”.
[16]
With
respect to the form requested for the Indian High Commission in Ottawa, the Officer noted that a copy of the form was provided in evidence, but found that
it could not constitute probative evidence that the Indian authorities are
aware that the Applicant claimed refugee protection as it was not filled out.
The Officer concluded that even if the Indian government was aware of the
Applicant’s status, the documentary evidence showed that failed and deported
refugee claimants are generally not at risk upon return to India. The Officer found that while the Applicant might be questioned upon return, there
was no evidence that failed and deported claimants returned with valid travel
documentation would be persecuted upon return.
[17]
The
Officer next considered the Applicant’s allegations that he would be arrested
and imprisoned for two years for having left India using a false passport. The
Officer confirmed that the alleged sanction exists and that it may be
accompanied or replaced by a fine. The Applicant, however, had provided no
evidence regarding the enforcement of such sanctions and the Officer was unable
to find anything to that effect in the documentary evidence; therefore, the
Officer concluded that the Applicant failed to discharge the burden of showing
he was at risk under sections 96 and 97 of the Act.
[18]
Finally,
the Officer considered the Applicant’s submissions regarding the treatment of
Sikhs in India, particularly with respect to the corruption and impunity of the
authorities. Noting that the Applicant has not demonstrated that he is an
active militant who might be of interest to the authorities, and that there are
protections in place for religious minorities including Sikhs, the Officer
cited evidence from 2007 and 2010 suggesting that the situation in the Punjab
has been relatively calm for several years and the political situation has
regularized. The Officer recognized that the situation is not perfect in India, but found that the Applicant was not at risk within the meaning of sections 96 and
97 of the Act given his profile and the country conditions on the whole.
[19]
The
Officer concluded that there is no more than a mere possibility that the
Applicant will be persecuted by reason of an enumerated Convention ground and
that there are no serious reasons to believe that he would be subject to
torture or otherwise at risk pursuant to section 97 of the Act.
Issues
[20]
The
only issue to be decided on this application for judicial review is whether the
PRRA Officer’s decision is reasonable.
Analysis
[21]
The
Applicant objects to the Officer’s assessment of the affidavits, medical
reports, human rights reports and “other strong corroborating evidence” he
claims to have submitted. He argues that the evidence was rejected solely on
the basis that the Board found his allegations not to be credible. He argues
that the PRRA Officer cannot reject evidence simply because it is self-serving
or hearsay evidence, as this would go against the instructions regarding
admissibility before the Board and a PRRA Officer’s jurisdiction cannot be more
restrictive than that of the Board.
[22]
The
Applicant also argues that the Officer’s rejection of the additional evidence
submitted with respect to the persecution inflicted by the police was arbitrary
and capricious, and that the evidence corroborates his story and demonstrates
that he is still under an imminent threat of torture if deported to India. The Applicant takes issue with the Officer’s statement that none of the three
officials from the Applicant’s village who submitted affidavits claimed to be
witnesses to the acts of violence and torture attested to. He argues that
requiring him to produce evidence from eye witnesses imposes an impossible
standard as only the perpetrators were present during the alleged events. He
submits that the affiants witnessed him fleeing to a different region of India
because of the violence he experienced, as well as many other events, and that
the Officer’s failure to give any weight to the affidavits signalled a lack of
good faith.
[23]
The
Applicant’s submissions demonstrate a certain level of confusion regarding the
requirements of paragraph 113(a) of the Act and the contents of the record
before the PRRA Officer. In addition, both the relief sought by counsel for
the Applicant and his submissions suggest that he has failed to appreciate the
link that must be created between the Applicant’s personal situation and the
general country conditions in India. Despite the Applicant’s adamant
submissions regarding the quality and sufficiency of the evidence provided, he
has failed to establish that the Officer committed a reviewable error as required
under subsection 18.1(4) of the Federal Courts Act and relies primarily
on additional submissions regarding the country conditions in the Punjab and in
India generally.
[24]
It
is well established that a PRRA application is not an appeal or reconsideration
of the IRB’s decision: Raza v Canada (Minister of Citizenship and
Immigration), 2007 FCA 385 at para 12. Writing for the Court, Justice
Sharlow then expounded (at para 13) on the questions that must be asked to
determine whether “new evidence” ought to be considered by a PRRA officer:
1. Credibility: Is the
evidence credible, considering its source and the circumstances in which it
came into existence? If not, the evidence need not be considered.
2. Relevance: Is the
evidence relevant to the PRRA application, in the sense that it is capable of
proving or disproving a fact that is relevant to the claim for protection? If
not, the evidence need not be considered.
3. Newness: Is the
evidence new in the sense that it is capable of:
(a)proving the current
state of affairs in the county of removal or an event that occurred or a
circumstance that arose after the hearing in the RPD, or
(b)proving a fact that
was unknown to the refugee claimant at the time of the RPD hearing, or
(c)contradicting a
finding of fact by the RPD (including a credibility finding)?
If not, the evidence need not be considered.
4. Materiality: Is the
evidence material, in the sense that the refugee claim probably would have
succeeded if the evidence had been made available to the RPD? If not, the
evidence need not be considered.
5. Express statutory
conditions:
(a) If the evidence is
capable of proving only an event that occurred or circumstances that arose
prior to the RPD hearing, then has the applicant established either that the evidence
was not reasonably available to him or her for presentation at the RPD hearing,
or that he or she could not reasonably have been expected in the circumstances
to have presented the evidence at the RPD hearing? If not, the evidence need
not be considered.
(b)If the evidence is
capable of proving an event that occurred or circumstances that arose after the
RPD hearing, then the evidence must be considered (unless it is rejected
because it is not credible, not relevant, not new or not material).
[25]
In
deciding that he could not assign any evidentiary value to the four affidavits
in the case at hand, the Officer noted that the affidavits “do not shed new
light on facts already deemed not to be credible by the RPD” (Decision, page
6). He noted at page 5 of his decision that the Applicant could not explain
why he was unable to present this evidence at the time of his RPD hearing in
2004 and that the RPD rejected the Applicant’s refugee protection claim on the
very basis of the facts presented in the affidavits, being of the opinion that
the Applicant was not credible.
[26]
While
one might contest the Officer’s finding under part 3(c) of paragraph 13 of the
Court of Appeal’s decision in Raza, above, by arguing that the
affidavits could be considered new to the extent that they “[contradict] a
finding of fact by the RPD (including a credibility finding)”, each of the
other factors arguably go against consideration of the affidavits and suggest
that they should not be admissible under paragraph 113(a) of the Act. Although
the Officer has not directly commented on the credibility of the affidavits, he
notes that none of the three officials were witnesses to the reported
incidents. I do not agree that this should be interpreted as imposing a burden
on the Applicant to provide eye witness accounts of the alleged incidents of
torture, but merely as commenting indirectly on their relevance. The Officer
found that the affidavits merely comment on facts already considered by the RPD
and, as such, are not material. Finally, the Applicant has not established
that the express statutory conditions, as set out by the Court of Appeal in Raza,
have been met.
[27]
The
Officer considered the content of each affidavit, but could also reasonably
have noted that three of the four affidavits are essentially sworn copies of
the same affidavit and the wife’s contains only minor changes to reflect her
alleged personal experiences of persecution. The findings above do not mean
that it was not open to the Officer to consider additional evidence if it was
consistent with the requirements of paragraph 113(a) of the Act, but the
Applicant has not established that this is the case here.
[28]
While
the Applicant mentions at several points in his submissions the importance to
the PRRA decision of certain medical reports, copies of which are included at
pages 26 to 28 of the Applicant’s Record, a careful review of the Certified
Tribunal Record suggests that this information was not before the PRRA
Officer. Nor is it included in the section entitled “PRRA submissions”
starting at page 30 of the Applicant’s Record. As asserted by the Respondent,
it is clear that an applicant cannot rely on evidence that was not presented to
the administrative tribunal in the course of judicial review, and it cannot be
an error for the Officer to fail to mention evidence that was not before him.
In addition, the medical certificate and prescriptions in question date from
2002 and 2003, and the Applicant has not explained why this evidence was not
available to him for presentation at the RPD or why he could not reasonably
have been expected to have presented it at the RPD hearing. The same is true
of the pictures of the abuse against his family, to which he refers at
paragraph 26 of his reply.
[29]
For
all of the above reasons, I find that the Applicant has failed to establish
that the Officer’s consideration of any additional evidence submitted was
unreasonable. The Applicant was deemed not to be credible by the RPD; indeed,
the RPD noted that it was not even clear he was in Punjab at the time of the
alleged events. The “new evidence” submitted by the Applicant, in the form of
affidavits and documentary evidence, does not materially undermine the
credibility findings of the RPD and should have been filed before the
assessment of his refugee claim. In those circumstances, it was clearly
insufficient for the Applicant to refer to general country documentation
showing that the situation in his home country is not perfect. An applicant
must establish that a link exists between his or her own personal predicament
and the general situation in his or her country of origin. In the present
case, no such link was established.
[30]
In
his written submissions, the Applicant argued that the Officer erred in
deciding that there was no risk of return for a failed refugee claimant. Yet,
counsel did not reiterate that argument orally. In any event, the Applicant
has failed to convince me that the Officer’s consideration of his risk as a
failed refugee claimant, even having left India using false travel documents,
was unreasonable.
[31]
The
Applicant alleges that he had to fill out a form addressed to the Indian High
Commission in Ottawa wherein he was to indicate whether he had submitted a
refugee claim in Canada. The Officer refused to consider that form, which the
Applicant filed with his submissions as part of his PRRA application, because
it had not been completed and could not therefore establish that Indian
authorities were aware of his refugee claim.
[32]
If
the facts alleged were true, the practice of requiring a failed refugee
claimant to declare his status to a potentially abusive government in order to
gain travel documents could raise serious issues. In such a case, I would not
necessarily agree with the Officer that a blank form could not constitute
probative evidence of risk if credibly supported by affidavit evidence of an
applicant and objective evidence of risk. This issue, however, is not
determinative of the reasonableness of the Officer’s decision in the case at
hand since, despite finding that the Applicant had not provided probative
evidence that the Indian authorities are aware that he claimed refugee
protection, the Officer then went on to consider the claims as if they were.
[33]
The
Officer accepted that leaving the country with a false passport is an offence
punishable by prison and/or a fine, but could find no evidence before the Court
that the Applicant will be returned to India without travel documents. While
the Officer might also have considered the conditions of imprisonment were the
Applicant to be imprisoned, his failure to do so cannot be considered a
determinative error in the case at hand, as the Officer was not satisfied that
there was a serious risk of imprisonment. In addition, the Applicant has not
pointed to any specific pieces of evidence that would render the Officer’s
findings unreasonable.
[34]
Finally,
the Applicant relied heavily in his written submissions on certain provisions
of the Convention Against Torture and the Charter. In the Applicant’s
PRRA submissions, however, counsel for the Applicant does not focus on the same
sections of the instruments relied on in his arguments before this Court. The
PRRA submissions instead include references to various articles of the
Universal Declaration of Human Rights, with a brief mention of the
international norms encompassed by the United Nations Convention Against
Torture and to articles 2, 7, 9 and 12 of the Charter.
[35]
The
Applicant has not convinced me that the Officer’s decision violates any of the
cited national or international principles or provisions, as the Applicant
failed to convince the PRRA Officer that he was at risk of torture or at risk
under sections 96 or 97 of the Act. I accept the Respondent’s submissions that
the PRRA inquiry and decision-making process is focused on personalized risk
and that the Applicant has failed to provide objective evidence that he faces a
personalized risk in India. While the evidence relied upon by the Applicant
speaks of generalized risks in India or risks faced by certain groups of
people, the Applicant has failed to establish that he personally faces any such
risk under sections 96 or 97 of the Act, or that the Officer’s conclusion in
this regard was unreasonable.
[36]
For
all of the foregoing reasons, this application for judicial review is
dismissed. No question for certification was proposed, and none will be
certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No question is certified.
"Yves de
Montigny"
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