Date: 20230418
Docket: IMM-3456-22
Citation: 2023 FC 539
Ottawa, Ontario, April 18, 2023
PRESENT: The Honourable Madam Justice Aylen
BETWEEN: |
GULSHAN JAIN
RAYENA JAIN
SHIVOM JAIN
SNEHAL JAIN
NEETU JAIN
SOFIA JAIN
SHIVIN JAIN
NITIN JAIN
SUNITA JAIN
SUDHIR JAIN
|
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision of the Refugee Appeal Division [RAD] dated March 29, 2022, wherein the RAD upheld the decision of the Refugee Protection Division [RPD] finding that: (a) in the case of Gulshan Jain, Neetu Jain, Nitin Jain, Sofia Jain and Sudhir Jain [the Excluded Applicants], the Applicants are excluded from refugee protection pursuant to Article 1F(b) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can TS No 6 [Refugee Convention] and section 98 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for there being serious reasons for considering that they have committed a serious non-political crime in India; and (b) in relation to the balance of the Applicants, they are neither Convention refugees nor persons in need of protection pursuant to sections 96 and 97 of the IRPA.
[2] The Applicants argue that the RAD: (a) erred in excluding the Excluded Applicants from refugee protection under Article 1F(b) of the Refugee Convention; (b) erred in its consideration of whether the RPD failed to apply Chairperson's Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues [Guideline 3] and Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution [Guideline 4]; (c) failed to provide a forward-looking risk assessment; and (d) erred in its analysis of the Applicants’ sur place claim.
[3] For the reasons that follow, I find that the Applicants have not demonstrated that the decision of the RAD was unreasonable and accordingly, this application for judicial review shall be dismissed.
I. Background
[4] The ten Applicants are all citizens of India. The Applicants joined their claims as members of the same family. The Principal Applicant is Gulshan Jain, the owner-operator of a relatively large and long-standing rice business, which includes a mill and multiple brands of rice grain. The Associate Applicants are the Principal Applicant's wife, Sunita Jain; their adult sons, Nitin Jain and Sudhir Jain; and the sons' wives, Neetu Jain (Nitin's wife) and Sofia Jain (Sudhir's wife). Each of the sons have two children: Nitin and Neetu's children are Snehal Jain and Shivin Jain; and Sudhir and Sofia's children are Shivom Jain and Rayena Jain [collectively, the Minor Applicants].
[5] The Applicants identify as Jains – members of a religious minority group in India. In their Basis of Claim [BOC] narrative, the Applicants state that they fear corruption and prejudice due to their membership as Jains.
[6] The Applicants assert that the adult Applicants ran a successful rice facility and began exporting their own rice to avoid paying bribes. In his BOC narrative, Nitin alleges that, due to the company's success, government representatives became jealous.
[7] On April 6, 2018, Gulshan, Nitin, Neetu, Sudhir, and Sofia were subject to a First Information Report [FIR], which alleged the misappropriation of millions of dollars' worth of government-owned rice paddies. The Applicants allege that these are false criminal charges, due to discrimination and criminal conspiracy. The government also seized their assets. The Applicants allege that the charges were a product of political revenge because the Applicants refused to support the local political party in the 2014 election, and that political leaders were involved in drug trafficking and attempted to solicit their assistance.
[8] The female Applicants also claimed a fear of persecution due to gender-based violence. In October of 2017, a group of masked men approached and assaulted Snehal, Sofia and Neetu in broad daylight when shopping in the market. The men began assaulting and dragging them, but the three female Applicants managed to escape. The Applicants lodged a police complaint but assert that the police took no action.
[9] On March 8, 2018, a driver was taking two of the Minor Applicants (Shivom and Shivin) home from school when an unknown vehicle chased and hit the Applicants' vehicle. Again, the Applicants assert that the police took no action. The Principal Applicant alleges that the latter incident traumatized his wife and triggered a bout of depression.
[10] The Applicants arrived in Canada in March and April of 2018, after which time they learned of the charges laid against them in India.
[11] Since coming to Canada, the Applicants have participated in public protests against the Hindu nationalist government in India. The Applicants assert that their employees back in India advised them that the police and authorities have all become aware of these activities.
[12] The Applicants made a claim for protection in September of 2018. The Minister of Public Safety and Emergency Preparedness intervened in the Applicants’ refugee claim regarding an exclusion issue under Article 1F(b) of the Refugee Convention.
[13] The RPD heard the Applicants' claim on July 7 and 16, 2021. In its decision dated August 16, 2021, the RPD found that the Excluded Applicants should be excluded from refugee protection under Article 1F(b) of the Refugee Convention. The RPD then considered the remaining included Applicants' four grounds advanced in support of their refugee claim: (a) political targeting by corrupt politicians; (b) a gender-based claim; (c) a sur place claim since the Applicants engaged in political protest in Canada; and (d) a claim based on religious minority status. Based on the evidence before it, the RPD determined that the included Applicants were neither Convention refugees nor persons in need of protection and rejected their refugee claim.
[14] The Applicants appealed the RPD's decision to the RAD and raised the following issues on appeal: (i) is the RPD’s decision reasonable? (ii) was the RPD’s assessment of the seriousness of the offence flawed, specifically with respect to its treatment of the factors relevant to the assessment? (iii) did the RPD err in having failed to apply Guidelines 3 and 4? (iv) did the RPD err by failing to provide a forward-looking assessment of risk that accounted for the grounds on which persecution was feared? (v) did the RPD err in its assessment of the evidence related to the sur place claim? and (vi) did the RPD err in failing to consider the Applicants’ claims under section 97 of the IRPA?
[15] The RAD rendered its decision on March 29, 2022, affirming the RPD's decision. In relation to the Article 1(F) exclusion, the RAD found serious reasons to consider that the Excluded Applicants have committed a serious non-political crime. The RAD held that the charges in India are comparable to fraud charges in the Canadian criminal justice system. The RAD also found a number of aggravating factors – the most obvious one being that the alleged fraud concerns a large sum of money (approximately equivalent to $5,000,000 CAD). The RAD held that the Applicants had failed to establish that the charges were politically motivated, orchestrated by drug traffickers, or linked to their minority religious faith.
[16] Turning to whether the RPD failed to apply Guidelines 3 and 4, the RAD accepted the Applicants’ argument that the RPD had erred by failing to reference and cite both Guidelines but found that the RPD undertook the hearing in a manner consistent with the Guidelines.
[17] The RAD considered whether the RPD erred in finding a forward-looking assessment of risk. The RAD found the Applicants' argument on this point confusing and that the Applicants did not indicate how and where the RPD erred on this point. The RAD then considered each of the non-exclusion claims in turn, finding the Applicants had not established persecution owing to their religion or gender-related persecution.
[18] The RAD then considered whether the RPD erred in its assessment of the sur place claim for the five included Applicants based on their alleged political protests in Canada and found that the Applicants had failed to establish a sur place claim.
[19] Finally, the RAD addressed whether the RPD's alleged failure to consider the Applicants' claim under section 97 of the IRPA made the decision unreasonable. The RAD found that the RPD was not required to undertake a section 97 assessment for the Excluded Applicants and that the RPD had properly considered the section 97 claims of the included Applicants.
II. Issue and Standard of Review
[20] The Applicants assert that the following issues are raised on this application:
Did the RAD err in finding that the Excluded Applicants were excluded from refugee protection under Article 1(F)(b)?
Did the RAD err in its consideration of whether the RPD failed to apply Guideline 3 and Guideline 4?
Did the RAD fail to provide a forward-looking assessment of risk that accounted for the grounds on which persecution was feared?
Did the RAD err in its assessment of the evidence regarding the sur place refugee claim?
Did the RAD’s failure to consider the Applicants’ claim under section 97 of the IRPA render the decision unreasonable?
[21] While I will consider each of these issues in turn, the sole issue before the Court is whether the RAD’s decision was reasonable.
[22] When reviewing for reasonableness, the Court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker [see Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 15, 85]. The Court will intervene only if it is satisfied there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency [see Adenjij-Adele v Canada (Minister of Citizenship and Immigration), 2020 FC 418 at para 11].
III. Analysis
A. The RAD did not err in finding that the Excluded Applicants were excluded from refugee protection under Article 1(F)(b)
[23] Subsection 107(1) of the IRPA requires the RPD to accept a claim for refugee protection “if it determines that the claimant is a Convention refugee or person in need of protection”
. Otherwise, the claim shall be rejected. A Convention refugee is defined at section 96 of the IRPA and a person in need of protection is defined at section 97 of the IRPA.
[24] However, the IRPA explicitly identifies certain classes of persons who are excluded from these definitions. Section 98 of the IRPA states that a person referred to in Article 1E or Article 1F of the Refugee Convention is not a Convention refugee or a person in need of protection. With this provision, Parliament incorporated the exclusion clauses of the Refugee Convention and, at the refugee status determination stage, specifically extended the exclusion clauses to a “person in need of protection”
as defined in section 97 of the IRPA. The relevant exclusion clause in the case at bar is Article 1F(b) of the Refugee Convention, which reads as follows:
1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
…
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;…
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1F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser :
…
b) Qu’elles ont commis un crime grave de droit commun en dehors du pays d’accueil avant d’y être admises comme réfugiés…
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[25] The Federal Court of Appeal has confirmed that, for an Article 1F(b) exclusion to apply, the Minister merely has to show, on a burden less than the civil standard of balance of probabilities, that there are serious reasons to consider that the applicant committed the alleged acts. In Zrig v Canada (Minister of Citizenship and Immigration), 2003 FCA 178 at para 56, Nadon JA confirms the following principle:
[56] The Minister does not have to prove the respondent's guilt. He merely has to show - and the burden of proof resting on him is "less than the balance of probabilities"…that there are serious reasons for considering that the respondent is guilty.
[Emphasis added.]
[26] For Article 1F(b) to apply, an applicant need not have been convicted of the criminal offence at issue. As stated in Zrig, supra at para 129:
It follows that under Article 1F(b) it is possible to exclude both the perpetrators of serious non-political crimes seeking to use the Convention to elude local justice and the perpetrators of serious non-political crimes that a state feels should not be allowed to enter its territory, whether or not they are fleeing local justice, whether or not they have been prosecuted for their crimes, whether or not they have been convicted of those crimes and whether or not they have served the sentences imposed on them in respect of those crimes.
[27] Normally, the RPD does not inquire into the guilt or innocence of an applicant charged abroad. Rather, the existence of a valid warrant issued by a foreign country would, in the absence of allegations that the charges are fabricated, satisfy the “serious reasons for considering”
requirement. However, when, as in this case, the Applicants allege that the charges are fabricated, the RPD has to determine whether to accept the fabrication allegation by determining whether the Applicants are credible. If they are credible, then the mere existence of a warrant may not be enough [see Moreno v Canada (Minister of Employment and Immigration), [1994] 1 FC 298 (FCA); Qazi v Canada (Minister of Citizenship and Immigration), 2005 FC 1204 at paras 18-19].
[28] As to what constitutes a “serious”
crime, the Supreme Court of Canada in Febles v Canada (Citizenship and Immigration), 2014 SCC 68, instructs at para 62:
[62] The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17150 (FCA), [2000] 4 F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious. I agree. However, this generalization should not be understood as a rigid presumption that is impossible to rebut. Where a provision of the Canadian Criminal Code, R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded Article 1F(b) is designed to exclude only those whose crimes are serious. The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (Goodwin-Gill, at p. 179). These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection. However, as indicated, the presumption may be rebutted in a particular case. While consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximum sentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner.
[Emphasis added.]
[29] The Federal Court of Appeal’s decision of Jayasekara v Canada (Minister of Citizenship and Immigration), 2008 FCA 404 at para 44, identifies factors to evaluate whether a crime is “serious”
for the purposes of Article 1F(b):
[44] I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: see S v. Refugee Status Appeals Authority, (N.Z. C.A.), supra; S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157 (Royal Courts of Justice, England); Miguel-Miguel v. Gonzales, no. 05-15900, (U.S. Ct of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors.
[Emphasis added]
[30] Therefore, as recently summarized by Justice Strickland in Okolo v Canada (Minister of Citizenship and Immigration), 2021 FC 1100 at para 27, a non-political crime is presumptively serious where a maximum sentence of ten years or more could have been imposed had the act been committed in Canada. However, this presumption is rebuttable. When assessing the seriousness of an offence, the RPD must consider the elements of the offence, the mode of prosecution, the penalty prescribed, the facts of the offence and the mitigating and aggravating circumstances underlying the conviction.
[31] The Applicants have made lengthy and often times unclear submissions regarding alleged errors made by the RAD in its Article 1F(b) determination, which I will address below.
[32] As to the applicable legal principles, the Applicants assert that the RAD failed to take a principled approach to determine what constitutes a “serious crime”
and advocate for a new legal test that would restrict serious crimes to “only the gravest crimes”
and that exclusion would only result “where recognition of refugee status would conflict with the purpose underlying Article 1F(b)”
. I reject this assertion. The RAD was obligated to apply the legal principles enunciated by the Supreme Court of Canada, the Federal Court of Appeal and this Court in making its determination under Article 1F(b), which it did. It was not open to the RAD to adopt the new test as proposed by the Applicants.
[33] I find that the RAD’s determination that the Excluded Applicants are excluded pursuant to Article 1F(b) of the Refugee Convention was reasonable in light of the evidence before it and that the RAD’s reasons exhibit the requisite degree of justification, intelligibility and transparency.
[34] Given the FIR and that the Indian Courts and the police are still pursuing the charges, the RAD reasonably determined that there are “serious reasons to believe”
that a serious non-political crime was committed. While the Applicants asserted numerous broad conspiracies in support of their assertion that the charges were fabricated, I find that it was reasonably open to the RAD to find that the fabrication assertion was not supported by credible and trustworthy evidence. In that regard, I find that the Applicants have not pointed the Court to any specific evidence that was overlooked by the RAD or to any objective evidence considered by the RAD that would reasonably support their various conspiracies.
[35] The RAD then properly turned to consider the seriousness of the crimes. The charges against the Excluded Applicants include criminal conspiracy, breach of trust and cheating and dishonesty inducing delivery of property under the Indian Penal Code in relation to property valued at approximately $5,000,000 CDN. These charges were reasonably found to be the equivalent of fraud under the Canadian Criminal Code, which is an indictable offence carrying a maximum prison sentence of 14 years in prison. This meets the presumptive standard for a serious non-political crime. The RAD then considered whether the presumption was rebutted by the Applicants, by considering the various Jayasekara factors. Some factors were found to be neutral considerations (i.e. the mode of persecution and penalty prescribed as the Excluded Applicants fled India and have not yet stood trial) and others aggravating factors, which findings were reasonably open to the RAD to make.
[36] The Applicants assert that the RAD erred in finding that the mode of prosecution and penalty prescribed were neutral considerations as the Excluded Applicants came to Canada for a vacation and are not fugitives from justice. I reject this assertion as the conclusion made by the RAD was reasonably available to it based on the evidence. The Applicants are improperly asking the Court to re-weigh the evidence to reach a different conclusion, which the Court will not do.
[37] The Applicants assert that the RAD improperly rejected the Applicants’ evidence that they are innocent, that the charges are fabricated based on various motivations as outlined in their evidence and that in relation to the female Excluded Applicants, they have valid defences to raise to the charges. The Applicants assert that these are relevant contextual factors that should have been considered by the RAD. However, I find that the RAD did consider all of these factors but found that the various allegations made by the Excluded Applicants were not established with credible and trustworthy evidence. While the Applicants assert that they have been unable to defend themselves against these charges and demonstrate their innocence, the evidence before the RAD was that the Excluded Applicants are represented by counsel in India for the purpose of the criminal proceedings and it remains open to them to return to India to stand trial, which they have thus far refused to do.
[38] Accordingly, I am not satisfied that the Applicants have demonstrated any reviewable error in relation to the RAD’s Article 1F(b) exclusion finding.
B. The RAD did not err in its consideration of whether the RPD failed to apply Guideline 3 and Guideline 4
[39] The Applicants argue that the RAD erred by finding that the RPD had erred in not citing and referring to Guidelines 3 and 4 but then concluding that the RPD undertook the hearing in a manner that respected the Guidelines. The Applicants assert that “substance must prevail over form”
and that the RPD did not, in fact, apply the Guidelines in conducting the hearing, which stymied the presentation of the refugee claim and caused the RPD to ignore crucial evidence.
[40] I find that the Applicants’ arguments are without any merit. First, I note that the Applicants have provided nothing more than bald assertions that the RPD ignored any evidence from the female and minor Applicants or stymied the presentation of the claim, without providing any specific references to either the transcript of the RPD hearing or the reasons for decision. Second, I agree with the Applicants that substance must prevail over form and I find that the RAD did consider whether, substantively, the RPD engaged with the Guidelines (despite not mentioning them in their reasons for decision) and in particular, how the RPD conducted the hearing. The RAD found that the RPD’s conduct was both “professional and respectful”
, that “neither the [Applicants] nor their Counsel objected to any of the questions from either the RPD or the minister concerning any evidence given”
and that no request for any accommodations was made by counsel for the Applicants. I see no error in the manner in which the RAD conducted its assessment of the RPD’s application of the Guidelines.
C. The RAD did not fail to provide a forward-looking assessment of risk that accounted for the grounds on which persecution was feared and did not err in its assessment of the evidence regarding the sur place refugee claim
[41] The arguments advanced by the Applicants in relation to these two issues overlap and are both related to the RAD’s consideration of the Applicants’ sur place claim. As a result, I am addressing them together.
[42] As stated by Justice McHaffie in Chen v Canada (Citizenship and Immigration), 2020 FC 907 at para 7:
A refugee sur place is a person who was not a refugee when they left their country, but who becomes a refugee at a later date: Thanabalasingam at para 6, quoting the United Nations Handbook on Procedures and Criteria for Determining Refugee Status at paras 94–96. A person may become a refugee sur place owing to a change in circumstances in their home country, or as a result of their own actions. As with other claims for refugee protection, the assessment of a sur place claim is prospective, assessing whether the claimant has a “well-founded fear of persecution” or is a person in need of protection from a future harm: Pour-Shariati v Canada (Minister of Employment and Immigration), 1994 CanLII 3542 (FC), [1995] 1 FC 767 at para 17; Henry v Canada (Citizenship and Immigration), 2013 FC 1084 at para 47; Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], ss 96, 97.
[43] The Applicants assert that the RAD erred in concluding that the Applicants had not established a sur place claim given the evidence that they had placed before the RPD and the RAD and the likelihood that such evidence would come to the attention of the Indian government.
[44] I reject this assertion. I see no error in the RAD’s assessment of the sur place claim and find that, what the Applicants are actually asking the Court to do, is to reweigh the evidence that was before the RAD and reach a different conclusion on the merits of their sur place claim, which is not the role of the Court on judicial review.
[45] In support of their sur place claim, the Applicants relied on a series of photographs that were before the RPD and a number of additional photographs submitted as new evidence before the RAD. The RAD concluded that the photographs were taken in May, June and September of 2021 and depict persons of varying number (from three to nine) standing in a field or in front of the provincial legislative assembly in Edmonton holding signs that refer to the Applicants’ support of the farmers’ protests in India, minority religious rights and that the Indian prime minister is a “murderer”
of Indian democracy. The RAD determined that the Applicants had not provided any explanation as to whether any media in Canada or India had become aware of the activities depicted in the photographs, what the context of the events was, who attended the events (apart from the Applicants) and what the Applicants were seeking to achieve by taking the photographs. The RAD found that there was no evidence that any persons other than the Applicants were aware of the photographic sessions and no evidence that the Applicants undertook any other activities in Canada to demonstrate their dissatisfaction with Indian authorities. As a result, the RAD concluded that the Applicants had not demonstrated, on a balance of probabilities, that their activities in Canada raise their profile so as to put them at risk even if the Indian government becomes aware of the photographs, and there was no objective evidence that the comments the Applicants made on the signs would subject them to persecution or any negative action by the government should they return to India. I find that all of these determinations were reasonably open to the RAD to make based on the evidence before them.
D. The RAD’s consideration of the section 97 claim was reasonable
[46] The Applicants assert that the RPD and the RAD failed to properly assess the Applicants’ section 97 claim, noting that there is no analysis of the relevant legal principles and their application to the gender-related section 97 claim advanced by the female Applicants.
[47] This Court has considered the application of section 97 and has clarified how the section 97 analysis, which differentiates between personalized and generalized risk, should be conducted. First, the RPD must correctly characterize the nature of the risk faced by the claimant. This requires the RPD to consider whether there is an ongoing future risk and if so, whether the risk is one of cruel or unusual treatment or punishment. Most importantly, the RPD must determine what precisely the risk is. Once this is done, the RPD must next compare the risk faced by the claimant to that faced by a significant group in the country to determine whether the risks are of the same nature and degree [see Oretega Arenas v Canada (Minister of Citizenship and Immigration), 2013 FC 344 at para 9].
[48] However, the Federal Court of Appeal has recognized that a negative credibility finding is sufficient to dispose of a claim under both sections 96 and 97, unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the section 97 claim [see Canada (Citizenship and Immigration) v Sellan, 2008 FCA 381 at para 3].
[49] In this case, the RAD reasonably held that there was no obligation on the RPD to consider the section 97 claim of the Excluded Applicants. In relation to the included Applicants, the RAD determined that their gender-based claim had been acknowledged and determined by the RPD, which finding was reasonable. In that regard, I note that, while not expressly stated to be a section 97 analysis, the RPD conducted a section 97 analysis as described in Oretega Arenas at paragraphs 101-103 of its decision.
IV. Conclusion
[50] I am satisfied that the RAD’s decision was reasonable. It was based on an internally coherent and rational chain of analysis and was justified in relation to the relevant facts and legal constraints. Accordingly, the application for judicial review shall be dismissed.
[51] Neither party raised a question for certification and I agree that none arises.
JUDGMENT in IMM-3456-22
THIS COURT’S JUDGMENT is that:
The application for judicial review is dismissed.
There is no question for certification.
“Mandy Aylen”
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