Docket: IMM-4991-13
Citation:
2015 FC 265
Ottawa, Ontario, March 3, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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ROHAN SHARAD WANKHEDE
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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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JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
The Refugee Protection Division [RPD] of the
Immigration and Refugee Board of Canada rejected the Applicant’s claim for
protection under sections 96 and 97(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act]. Pursuant to subsection 72(1) of
the Act, the Applicant now seeks judicial review of the RPD’s decision,
requesting that the Court set aside the RPD’s decision and return the matter to
a different panel of the RPD for re‑determination.
[2]
The Applicant is a 30 year-old citizen of India
who first came to Canada with a student visa on September 2, 2006. He returned
to India in November, 2008, allegedly because his father had a heart attack,
but came back to Canada in March, 2009. On February 7, 2012, he applied for
protection, claiming that he feared persecution as a Dalit, a member of a lower
caste in India known as untouchables, and that his life had been threatened by
the Shiv Sena [the SS], a political party with criminal connections that had
been extorting his family.
[3]
The RPD held a hearing to determine the
Applicant’s claim on April 30, 2013. Just before the hearing began, the RPD Member
presented to the Applicant’s counsel a newspaper article he had discovered
about the situation of Dalits in India: Sudha Ramachandran, “Dalit millionaires defy caste system”, Asia Times
(16 February 2012), online: Asia Times
<http://www.atimes.com/atimes/South_Asia/NB16Df02.html>.
II.
Decision under Review
[4]
By reasons dated June 11, 2013, the RPD rejected
the Applicant’s claim.
[5]
The RPD accepted the Applicant’s claims that he
was taunted and bullied for being Dalit, and also that one of his teachers once
stripped him naked when he was a child and exposed him to harassment by the
other children. However, the RPD did not accept that these incidents were a “sustained or systemic denial of core human rights,”
and so was not satisfied that it amounted to persecution (citing Canada (Attorney
General) v Ward, [1993] 2 S.C.R. 689, 103 DLR (4th) 1 [Ward]; and James
C Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) at
108). As for the plight of Dalits generally, the RPD panel member quoted from
the Asia Times article he had discovered as follows:
While liberalization of India’s economy has facilitated the emergence of Dalit millionaires, the significant role of
literacy and political empowerment – the rise of Dalit politics coincided with
liberalization – cannot be ignored.
Thus, the RPD
concluded as follows:
[14] Taking into consideration the
totality of the foregoing, the incidents the claimant said occurred in the past
and what possibly may repeat itself in the future, and Counsel’s post-hearing
submissions, the panel, therefore, determines that the claimant is not a
Convention refugee.
[6]
The RPD also considered the Applicant’s fear of
the SS but found that ordinary criminality had no nexus to a Convention ground
and was solely a subsection 97(1) claim. The RPD then summarized a number of
cases from this Court which have upheld findings that criminal gangs posed only
a generalized risk where the claimant is part of a sub-group that is more at
risk than the entire population (citing, e.g. Chavez Fraire v Canada
(Citizenship and Immigration), 2011 FC 763 at paragraphs 9-10; Baires
Sanchez v Canada (Citizenship and Immigration), 2011 FC 993 at paragraph
23).
[7]
The RPD determined that the Applicant was
targeted because of his family’s perceived wealth, and that it was “reasonably conceivable that those perceived to be wealthy,
as the claimant and his family, face a general risk of being victimised for
robbery and extortion.” Citing Prophète v Canada (Citizenship and
Immigration), 2008 FC 331, 70 Imm LR (3d) 128, aff’d 2009 FCA 31, 387 NR
149 [Prophète], the RPD consequently decided that:
[T]he risk the claimant alleges he faces
from the SS goons is a generalized risk, rather than a personalized or
particularized one, and that such risk is excluded from Canada’s protection by
paragraph 97(1)(b)(ii). That provision does not extend protection to those
facing a risk that is faced generally by others in the country.
[8]
The RPD therefore decided that the Applicant was
neither a Convention refugee under section 96 of the Act nor a person in
need of protection under subsection 97(1) of the Act.
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[9]
The Applicant asserts that the RPD’s decision
should be set aside for essentially three reasons: (1) the RPD member was
biased; (2) the RPD ignored pertinent evidence; and (3) subsection 97(1) was
not identified as an issue and was not properly analyzed.
[10]
With respect to bias, the Applicant points out that
he does not need to show any actual bias, but merely needs to show that there exists
a “reasonable apprehension” of bias (citing Committee
for Justice & Liberty v Canada (National Energy Board), [1978] 1 SCR
369 [Committee for Justice and Liberty]; Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 45-46, 174 DLR
(4th) 193 [Baker]; Spence v Prince Albert (City) Police Commissioners,
[1987] SJ No 5 (QL) at 7-8, 53 Sask R 35, 25 Admin LR 90 (CA)).
[11]
In this case, the Applicant believes that the
RPD member was conceivably biased because he did his own research and gave to
the Applicant a copy of an article from the Asia Times at the start of
the hearing. According to the Applicant, that makes this case analogous to Sivaguru
v Canada (Minister of Citizenship and Immigration), [1992] 2 FCR 374 at
paragraph 14, 139 NR 220 (CA) [Sivaguru]. Although the bias was not
immediately evident at the hearing itself, the Applicant says that it became
apparent from the decision that the RPD member selectively relied on the Asia
Times article to the exclusion of all the other evidence that had been
submitted about the situation of Dalits.
[12]
For essentially the same reason, the Applicant
urges the Court to infer that the other evidence was ignored. The Applicant
says that this evidence shows that Dalits are suffering a sustained and
systemic denial of core human rights. As this claim was central to the
application, the Applicant argues that the RPD was obliged to address the
evidence supporting it specifically; a “blanket
statement” that the RPD referred to the “totality
of the foregoing” is not sufficient (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL) at
paragraphs 14 and 17, 157 FTR 35 (TD) [Cepeda-Guterrez]). Indeed, the
Applicant says that this case is like the recent decision in Gopalarasa v Canada (Minister of Citizenship and Immigration), 2014 FC 1138 at paragraphs 37-39, since the
failure to have regard to the contradictory evidence about the plight of “untouchables”
in India shows only “half the picture.”
[13]
As for the RPD’s analysis under section 97 of
the Act, the Applicant says this was not properly identified as an issue.
It was not mentioned in either the screening form or by the RPD member at the
start of the hearing. Therefore, the Applicant complains that he was not given
an opportunity to address this matter.
[14]
In any event, the Applicant says that any
analysis under section 97 of the Act is not just about the SS and was
not just because he was perceived to be wealthy. The Applicant says he was
targeted by the SS partly because he is a Dalit. At best, the Applicant says
that the RPD conducted a perfunctory analysis under section 97 of the Act,
and ignored the treatment of Dalits in India.
B.
The Respondent’s Arguments
[15]
The Respondent says the RPD had proper regard to
the Supreme Court of Canada’s decision in Ward. In particular, the
Respondent states that there is clearly an analysis of the persecution
allegedly faced by the Applicant. The Respondent says that not every Dalit is a
refugee, and that the Court needs to look to the facts of the matter as they
were before the RPD. In addition, the Respondent says there is nothing in the
documentary evidence which contradicts the RPD’s findings.
[16]
As to bias, the Respondent says that this case
does not fall within the scope of Baker, as there is no indication that
the RPD member had closed his mind. Also, the Respondent says this is not a
situation as in Sivaguru, where the tribunal was out to set a trap. In
any event, the Respondent says that this allegation cannot be sustained because
the Applicant did not raise it at the earliest opportunity. Instead, the
Applicant’s counsel was given five minutes to review the Asia Times
article and then asked the Applicant questions about it. This article,
according to the Respondent, should not be overstated and it is not used to
sweep away all the other documentary evidence but, rather, completes the
picture such that the principle from Cepeda-Guterrez does not apply.
[17]
The Respondent also states that the RPD
reasonably assessed the section 97 claim with respect to the SS and that it was
reasonable for the RPD to conclude that the Applicant faced only a generalized
risk notwithstanding the extortion and criminal acts.
[18]
Furthermore, the Respondent states that there is
no need for a separate analysis under section 97 of the Act with respect
to the Applicant’s alleged risk as a Dalit, since that can be co-mingled with
the analysis under section 96. In any event, the Respondent says that any error
would be immaterial, since nothing supports a section 97 claim on this
ground (citing Athansius v Canada (Minister of Citizenship and Immigration),
2004 FC 745 at paragraph 13).
IV.
Issues and Analysis
A.
Standard of Review
[19]
The Applicant’s arguments about bias and lack of
warning that there was an issue about personalized risk are questions of
procedural fairness, for which the standard of review is correctness (Mission
Institution v Khela, 2014 SCC 24, at paragraph 79, [2014] 1 S.C.R. 502).
[20]
The Applicant merges his bias argument with one
that the RPD overlooked evidence contrary to Cepeda-Gutierrez. However,
deciding whether the RPD overlooked evidence is typically considered on the
reasonableness standard (Vargas Bustos v Canada (Citizenship and
Immigration), 2014 FC 114 at paragraphs 29 and 34-39, 24 Imm LR (4th) 81).
The issue as to whether the Applicant faced only a generalized risk is a
question of mixed fact and law which also attracts review on the reasonableness
standard (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 53, [2008] 1
SCR 190 [Dunsmuir]; Correa v Canada (Citizenship and Immigration),
2014 FC 252 at paragraph 19, 23 Imm LR (4th) 193).
[21]
Accordingly, the Court should not intervene if
the RPD’s decision is intelligible, transparent, and justifiable and falls
within the range of possible, acceptable outcomes that are defensible in
respect of the facts and the law. It is not up to this Court to reweigh the
evidence that was before the RPD, and it is not the function of this Court upon
judicial review to substitute its own view of a preferable outcome: Dunsmuir
at paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12 at paragraphs 59, 61, [2009] 1 S.C.R. 339.
B.
Was there a reasonable apprehension of bias on
the part of the RPD panel member?
[22]
In Committee for Justice and Liberty at
394, Mr. Justice de Grandpré stated the general test to determine whether a
reasonable apprehension of bias arises as follows:
…the apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is "what would an informed
person, viewing the matter realistically and practically—and having thought the
matter through—conclude. Would he think that it is more likely than not that …
[the decision-maker], whether consciously or unconsciously, would not decide
fairly."
[23]
Furthermore, it is well established that the
grounds for the apprehension of bias must be substantial (see: Committee for
Justice and Liberty at 394-395). As Mr. Justice Cory stated in R v S(RD),
[1997] 3 S.C.R. 484 at paragraph 112, 151 DLR (4th) 193, a real likelihood or
probability of bias must be demonstrated and a mere suspicion is not sufficient
(also see: Bell Canada v Canadian Telephone Employees Association, 2003
SCC 36 at paragraphs 17-18, 50, [2003] 1 S.C.R. 884).
[24]
In Arthur v Canada (Attorney General),
2001 FCA 223 at paragraph 8, 283 NR 346, the Federal Court of Appeal commented
on what is required to establish bias:
An allegation of bias, especially actual and
not simply apprehended bias, against a tribunal is a serious allegation. It
challenges the integrity of the tribunal and of its members who participated in
the impugned decision. It cannot be done lightly. It cannot rest on mere
suspicion, pure conjecture, insinuations or mere impressions of an applicant or
his counsel. It must be supported by material evidence demonstrating conduct
that derogates from the standard. It is often useful, and even necessary, in
doing so, to resort to evidence extrinsic to the case. That is why such
evidence is admissible in derogation of the principle that an application for
judicial review must bear on the matter as it came before the court or
tribunal.
[25]
In this case, I do not think (to use the words
of Mr. Justice de Grandpré) an informed person, viewing the RPD’s decision and
reasons realistically and practically - and having thought the matter through -
would conclude that the panel member, consciously or unconsciously, did not
decide the Applicant’s request for protection fairly. There is no evidence on
the record before the Court to suggest that the RPD prejudged the application.
Moreover, the transcript of the hearing clearly shows that the Applicant was
afforded an opportunity to question and respond to the contents of the Asia
Times article.
[26]
As well, the reasons for the RPD’s decision
neither corroborate nor substantiate the Applicant’s arguments as to bias on
the part of the panel member. As such, there is no excuse for failing to allege
bias at the hearing, which amounts to an implied waiver of the right to raise
the issue of bias at this stage of the matter: Fletcher v Canada (Minister
of Citizenship and Immigration), 2008 FC 909, at paragraphs 10, 17, 74 Imm
LR (3d) 78; Maritime Broadcasting System Limited v Canadian Media Guild,
2014 FCA 59 at para 67, 373 DLR (4th) 167.
[27]
Even if the Court accepts that the evidence
offered by the Applicant in his affidavit filed as part of the application
record is admissible, the matters deposed to by the Applicant in such affidavit
do not demonstrate a real likelihood or probability of bias on the part of the
panel member but, at best, suggest a mere suspicion or insinuation.
C.
Was the RPD’s decision reasonable?
[28]
The Applicant argues that the RPD’s analysis of
his risk as contemplated by subparagraph 97(1)(b)(ii) of the Act
was overly simplistic, if not perfunctory, and unreasonable because there was
no individualized inquiry or assessment of such risk.
[29]
The RPD took at face value the fact that the
Applicant feared the SS since they had targeted him and his father for
extortion and had harassed and threatened him. Although the Applicant had
testified that he had been subjected to death threats from the SS, the RPD’s
reasons make no mention of these specific types of threats. In this regard, the
Applicant testified as follows:
The reason I left there [India] was like the
Shiv Sena was trying to extract more money from my family…when these gangsters,
they knew that I had come back from Canada, they started calling me and they
were issuing me death threats. They were telling me I have to pay for the
protection money. And the protection money is, means that if I don’t give them
the money they would, they would kill me…
[30]
The RPD also found that, as the Applicant and
his family were “perceived to be wealthy or at least of
good financial means, the claimant and his family would be part of a subgroup
of the general population that could be victimised by criminals, criminal
groups or would be criminals.” As such, the RPD concluded that the
Applicant’s risk was not personalized or particularized but, rather,
generalized.
[31]
In arriving at this conclusion, the RPD relied
upon several cases in this Court where wealthy persons in Latin America who had
been targeted and faced risk because of their perceived wealth had been found
to face only a generalized and not a personalized risk. The RPD also relied
upon Prophète, a case involving a man from Haiti, in further support of
its conclusion that the Applicant’s risk was merely a generalized one since his
perceived wealth made him part of a larger subgroup.
[32]
However, in this case the RPD failed to follow
the guidance offered by Prophète since it did not conduct a proper,
individualized inquiry as to the Applicant’s risk. In Prophète, the
Court of Appeal stated as follows:
[6] Unlike section 96 of the Act,
section 97 is meant to afford protection to an individual whose claim “is not
predicated on the individual demonstrating that he or she is [at risk] … for
any of the enumerated grounds of section 96” (Li v. Canada (Minister of Citizenship and Immigration), 2005 FCA 1, [2005] 3 F.C.R. 239 at
paragraph 33).
[7] The examination of a claim under
subsection 97(1) of the Act necessitates an individualized inquiry, which is to
be conducted on the basis of the evidence adduced by a claimant “in the context
of a present or prospective risk” for him (Sanchez v. Canada
(Minister of Citizenship and Immigration), 2007 FCA 99 at paragraph 15)
(emphasis in the original)…
[33]
The RPD here did not reasonably assess or
appreciate the Applicant’s individualized risk. On the one hand, it finds that
the Applicant has a personal fear or risk at the hands of the SS, but, on the
other, it concludes that this personal risk is negated simply because he is
part of a larger subgroup of wealthy individuals who, as such, are assumedly more
vulnerable to extortion and other crimes. In this regard, Madam Justice
Gleason’s determination in Portillo v Canada (Citizenship and Immigration),
2012 FC 678 at paragraph 36, [2014] 1 FCR 295 [Portillo], is apt: “if an individual is subject to a personal risk to his
life or risks cruel and unusual treatment or punishment, then that risk is no
longer general. If the Board’s reasoning is correct, it is unlikely that there
would ever be a situation in which this section would provide protection for
crime-related risks” (emphasis in original).
[34]
Furthermore, nowhere does the RPD make any
findings about the nature or the degree of risk from criminality that persons
of perceived wealth face in India. It instead based its conclusion that
the Applicant’s risk was generalized on the fact that wealthy victims of crime
in other countries faced only a generalized risk. As the RPD never
assessed the nature or degree of the risk faced by the Applicant or compared it
to any evidence of the risks faced by other individuals or groups in India,
the decision must be set aside (Portillo at para 41).
V.
Conclusion
[35]
In the result, the RPD’s decision in this case
is not intelligible and cannot be justified and, accordingly, is not within the
range of possible, acceptable outcomes that are defensible in respect of the
facts and the law.
[36]
The application for judicial review is therefore
allowed and the matter is returned to the RPD for re-determination by a
different panel member. Neither party suggested a question for certification;
so, no such question is certified.
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