Docket:
IMM-2224-13
Citation: 2014 FC 11
Ottawa, Ontario, January 7, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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SINGH, IQBAL
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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
I. Overview
[1]
It is well established that the purpose of a Pre-Removal
Risk Assessment [PRRA] application is to assess new risk developments that have
occurred since the rejection of the refugee protection claim. A PRRA
application cannot and must not be used as an appeal or reconsideration of the
decision of the Refugee Protection Division [RPD] of the Immigration and
Refugee Board to reject a claim for refugee protection (Raza v Canada
(Minister of Citizenship and Immigration), 2007 FCA 385 at para 12).
II. Introduction
[2]
The Applicant seeks a judicial review, under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], of a decision rendered on December 7, 2012, by a Senior
Immigration Officer, dismissing the Applicant’s PRRA application.
III. Background
[3]
The Applicant, Mr. Iqbal Singh, is a 58 year old
citizen of India of Sikh origin. He is a resident of the city of Amritsar, Punjab, since November 1996.
[4]
The Applicant states that in April 1996, a Sikh
militant came to his home and ordered his family to feed and shelter him at gun
point.
[5]
After this incident, the Applicant states that
the police, suspecting that he was an accomplice to Sikh militants, began
investigating him. He indicates that he was arrested in June 2000, October 2001
and June 2002 due to his perceived affiliation with the Sikh militancy.
[6]
Mr. Iqbal Singh came to Canada from India on September 3, 2002. He made a refugee claim on October 8, 2012.
[7]
On August 29, 2003, the RPD refused Mr. Iqbal Singh’s
refugee claim, finding that he had not established his identity and that an
internal flight alternative [IFA] was viable outside of Punjab.
[8]
On January 6, 2004, Mr. Iqbal Singh filed and
application for leave and for judicial review of this decision which was
dismissed.
[9]
The Applicant submitted an application for
permanent resident status based on humanitarian and compassionate grounds in
2007, 2008 and 2009. All three applications were refused. An application for
judicial review is presently before this Court with regard to the Applicant’s
third application (IMM-2289-13).
[10]
On February 6, 2012, the Applicant applied for a
PRRA which was denied on December 7, 2012.
[11]
On April 24, 2013, the Applicant filed an
application for leave and for judicial review of the PRRA decision, dated
December 7, 2012, which is the underlying application before this Court.
IV. Decision
under Review
[12]
In her decision, the Officer concluded that the
Applicant’s allegations were essentially the same as those already assessed by
the RPD. She concluded that the Applicant had not provided sufficient new
evidence to rebut the RPD’s conclusion that he had an IFA outside Punjab.
[13]
Moreover, the Officer found that the Applicant
failed to provide any probative evidence of new risk developments which would
render him personally at risk in India.
[14]
The Officer therefore determined that there was
no more than a “mere possibility” that the Applicant would face persecution in India, or that there were substantial grounds to believe that he would face torture or a
risk to life, or of cruel and unusual treatment or punishment.
V. Issue
[15]
Did the Officer err in concluding that the
Applicant would not face a personalized risk if returned to India?
VI. Relevant
Legislative Provisions
[16]
The following legislative provisions of the IRPA
are relevant:
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Convention refugee
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
Person in need of protection
97. (1) A person in need of
protection is a person in Canada whose removal to their country or countries
of nationality or, if they do not have a country of nationality, their
country of former habitual residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
Person in need of protection
(2) A person
in Canada who is a member of a class of persons prescribed by the regulations
as being in need of protection is also a person in need of protection.
…
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;
…
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Définition de « réfugié »
96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de tout pays dont elle a la nationalité et
ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de
chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays
dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette
crainte, ne veut y retourner.
Personne à protéger
97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être
soumise à la torture au sens de l’article premier de la Convention contre la
torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines
cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
[…]
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;
[…]
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VII. Position of the Parties
[17]
The Applicant submits that the Officer erred in
assessing the evidence regarding the Applicant’s circumstances if returned to India. In particular, the Applicant argues that the Officer failed to take into
consideration his changed circumstances; notably, that he has irregular travel
documents and that he would be stopped at the airport by Indian authorities as
passengers are heavily scrutinized upon arrival.
[18]
The Respondent submits that the Officer duly considered
all of the Applicant’s allegations and documentation submitted in support of
his application, and clearly explained her findings in regard to their probative
value; or lack thereof.
[19]
The Respondent asserts that the Applicant failed to
rebut the RPD’s conclusions and could not demonstrate that he would face a
personalized risk if returned to India. As such, the decision was reasonable in
the circumstances.
VIII. Standard of Review
[20]
The standard of review for a PRRA officer’s decision is
that of reasonableness (Terenteva v Canada (Minister of Citizenship and
Immigration), 2012 FC 1431; Shaikh v Canada (Minister of Citizenship and
Immigration), 2012 FC 1318 at para 16).
[21]
If the standard of reasonableness applies, courts may
only intervene if the reasons are not “justified, transparent or intelligible”.
To meet the standard, a decision must fall in the “range of possible,
acceptable outcomes ... defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
IX. Analysis
[22]
It is well established that the purpose of a PRRA
application is to assess new risk developments that have occurred since a
rejection of a refugee protection claim. A PRRA application cannot, and must
not, be used as an appeal or reconsideration of a RPD decision rejecting a refugee
protection claim (Raza, above, at para 12).
[23]
As stated by Justice Judith Snider in Cupid v
Canada (Minister of Citizenship and Immigration), 2007 FC 176:
[4] … Canada has taken steps to ensure that a claimant is provided with a process whereby changed
conditions and circumstances may be assessed. It follows that, if country
conditions or the personal situation of the claimant have not changed since the
date of the RPD decision, a finding of the RPD on the issue of state
protection – as a final, binding decision of a quasi-judicial process – should
continue to apply to the claimant. In other words, a claimant who has been rejected
as a refugee claimant bears the onus of demonstrating that country
conditions or personal circumstances have changed since the RPD decision
such that the claimant, who was held not to be at risk by the RPD, is now at
risk. If the applicant for a PRRA fails to meet that burden, the PRRA
application will (and should) fail. [Emphasis added.]
(Reference
is also made to Kaybaki v Canada (Minister of Citizenship and Immigration),
2004 FC 32; Elezi v Canada (Minister of Citizenship and Immigration),
2007 FC 240, 310 FTR 59).
[24]
Put simply, when considering the evidence in a
PRRA application, an officer must ask whether the information it contains is
significant or significantly different from the information previously
provided (Raza v Canada (Minister of Citizenship and Immigration),
2006 FC 1385, 306 FTR 46 at para 22-23; Elezi, above, at para 29; Doumbouya
v Canada (Minister of Citizenship and Immigration), 2007 FC 1187, 325 FTR
143 at para 38).
[25]
In the present case, the Court finds that the
Applicant did not meet the onus of demonstrating a significant change in
country conditions or his personal circumstances. The Applicant merely repeated
the facts and risks that were previously alleged in his claim for refugee
status and that were at issue before the RPD. While the Applicant did include
some objective evidence in his PRRA application, it was general in nature and
did not demonstrate any new risk developments for him personally.
[26]
The Applicant claims that he filed important
evidence “personal” to him “or that did not apply to everybody in India but may only apply to the few young Sikhs like him”; however, he does not explain in
what way this evidence is personalized in nature. The mere fact that the
documentary evidence may show that the human rights situation confronted by
Sikh militants in India is problematic does not necessarily mean there is a
risk to the Applicant personally (Kaba v Canada (Minister of Citizenship and
Immigration), 2007 FC 647 at para 1). Furthermore, the Court has some
difficulty accepting that this evidence regarding “young Sikhs” in India would apply to the Applicant as he is presently 58 years old.
[27]
The Applicant also argues that his travel
documents present a new risk development as they are irregular and will raise
concern with Indian authorities; however, he does not indicate in what way they
are irregular or how they have changed his personalized risk since the RPD’s
decision. The Court agrees with the Respondent that this argument is highly
speculative and was not required to be considered by the Officer.
[28]
Likewise, the Court finds that the Applicant’s
allegation that he will be stopped by Indian authorities upon his arrival, due
to heavy scrutiny at India’s New Delhi international airport, is also
speculative, and was not required to be considered by the Officer. The
Applicant, himself, admits to the speculative nature of this allegation in
stating that he “concede[s] there is no specific evidence on the kind of
airport New-Delhi is.”
[29]
On the whole, the Court finds that the Officer’s
decision is consistent with the principles developed by the jurisprudence of
this Court as outlined above. The Officer considered all of the new objective
evidence before her, including several news articles and reports submitted by
the Applicant regarding the general country conditions in India, and reasonably found that this evidence did not demonstrate any new risk
developments. The Applicant stated himself in his PRRA submissions that he
does “not believe police will be out to kill [him], or even injure [him]
seriously when they question [him]” (Certified Tribunal Record at p 81).)
The Applicant also indicated to this Court in his related matter in Singh v Canada (Minister of Citizenship and Immigration), 2014 FC 10, that, in the
circumstances, he “faces no personalized risk, has no valid fear”, and “that
his claimed adverse country conditions are the same for everybody in his return
country” (at para 27.
[30]
The Court agrees that there is no more than a
“mere possibility” that the Applicant would face persecution if returned to India, and that there are no substantial grounds to believe that he would face torture or a
risk to life, or of cruel and unusual treatment or punishment.
X. Conclusion
[31]
For all of the above reasons, the Applicants’
application for judicial review is dismissed.
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