Docket: IMM-3595-23
Citation: 2024 FC 1946
Toronto, Ontario, December 2, 2024
PRESENT: Madam Justice Go
BETWEEN: |
JASWINDER SINGH |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Mr. Jaswinder Singh [Applicant] seeks a judicial review of a decision by a Senior Immigration Officer [Officer] refusing his Pre-Removal Risk Assessment [PRRA] application [Decision].
[2] The Applicant is a Sikh and citizen of India. The Applicant made a claim for refugee protection in 2016. However, the Refugee Protection Division [RPD] refused the Applicant’s refugee claim and the Refugee Appeal Decision dismissed the Applicant’s appeal of the RPD decision.
[3] The Applicant submitted a PRRA application in May 2022, raising a new risk based on his alleged fear of persecution due to his support for an independent Khalistan. The Applicant also alleged fear of persecution by the Indian police, including the Indian intelligence police, because of his involvement in activities in Canada relating to the unofficial Khalistan Referendum 2020 organized by the Sikhs for Justice [SFJ] to establish an independent Sikh state in India.
[4] The Officer refused the Applicant’s PRRA application on the ground that “[i]t has been determined that [the Applicant] would not be subject to a danger of torture, or face a risk to [his] life or a risk of cruel and unusual treatment or punishment if returned to [his] country of nationality or habitual residence.”
[5] For the reasons set out below, I grant the application as I find the Decision unreasonable.
II. Analysis
[6] The only issue before me is whether the Decision was reasonable. As this issue concerns the merits of the Decision, the presumptive reasonableness standard will apply per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
[7] The Applicant raises several arguments to argue that the Decision was unreasonable. I will address only those arguments that I find determinative of the judicial review application.
[8] Along with the allegation of new risk in his PRRA application, the Applicant submitted new evidence including the following:
The Applicant’s registration with the SFJ on May 12, 2022, including his Voter Registration Card, and an email confirming the registration;
An affidavit from his mother dated June 1, 2022 stating that two officers of the Central Intelligence of India and one local police officer came to her house on May 16, 2022 advising her that they had information about the Applicant’s anti-India activities and that he would be taken to prison when he was found;
The Applicant’s participation in the “Martyrs religious procession,”
as shown in flyers and photos depicting him standing beside a float “to create awareness and support for the creation of Khalistan;”
and
Country conditions evidence with respect to the human rights conditions in India in general and India’s treatment of pro-Khalistan supporters specifically, including references to the Immigration and Refugee Board’s National Documentation Package [NDP] and a Response to Information Request.
[9] In rejecting the Applicant’s PRRA application, I find the Officer made two reviewable errors. First, the Officer’s treatment of the objective documentary evidence regarding country conditions was unreasonable. Second, the Officer conducted an unreasonable assessment of the affidavit of the Applicant’s mother. I pause here to note that these two findings were inter‑connected, as the Officer’s finding in one fed into their finding in the other.
[10] After accepting that the Applicant was present at a religious procession with the SFJ in June 2022, but finding that his active participation in the procession was not demonstrated, the Officer noted the Applicant registered to become a voter in the referendum one day after he was invited to submit a PRRA application. The Officer noted that the Applicant has not explained why he would register to become a voter and attend the procession in June 2022 when he knew he could possibly be removed to India. The Officer went on to review news articles and country conditions reports and stated:
Upon review of these articles and reports, I note that they do not contain information about the specific circumstances of the applicant. Specifically, I find that the applicant is not named in any of the documents, and they do not enumerate the risks as identified by the applicant that he would face upon returning to India. While these submissions may demonstrate adverse country conditions for Khalistan referendum supporters, the evidence provided does not demonstrate that the applicant is known to Indian officials or that he is likely to face adverse treatment. It is a well-recognized principle that it is insufficient simply to refer to country conditions in general without linking such conditions to the personalized situation of an applicant. The fact that the documentary evidence shows that the human rights situation in a country is problematic does not necessarily mean there is risk to a given individual.
[Emphasis added]
[11] In making these findings, I agree with the Applicant that the Officer unreasonably disregarded the materiality and relevance of country conditions evidence because it did not specifically mention the Applicant.
[12] In support of the Applicant’s PRRA application, the Applicant’s former counsel referenced numerous articles and reports, including those cited in the NDP that refer to the adverse treatment faced by Khalistan supporters, both those in India and those who live abroad. Counsel referenced reports noting Sikhs who advocate for an independent Khalistan may be subject to harassment and arrest, including being charged and detained. Counsel also quoted from a Response to Information Request that states “Sikhs who support an independent state of Khalistan can in many cases face severe persecution not just in Punjab but in other states.”
In addition, counsel noted that Sikhs outside of India have been spied upon and that the National Investigation Agency in India has come to Canada to investigate pro-Khalistan groups like the SFJ.
[13] In dismissing the country conditions evidence on the basis that the Applicant was not named in these articles, I find the Officer erred. While I accept that it is insufficient simply to refer to country conditions in general without linking such conditions to the personalized situation of an applicant, I find the Officer unreasonably required the Applicant to be named in the articles in order to establish a link to the country conditions.
[14] In this regard, I reject the Respondent’s submission that none of the individuals named in the reports are “similarly situated to the Applicant,”
and that “[n]ot a single Sikh is shown in the articles as having been arrested for simply registering online while living in Canada.”
The Officer did not cite these reasons in the Decision. I also reject the Respondent’s additional submission at the hearing that just because the Officer did not mention similarly situated individuals does not mean the Officer was not considering this issue.
[15] Contrary to the Respondent’s argument, the Decision indicates that the Officer rejected the objective evidence because the Applicant was not named in the articles and that the Officer found the Applicant did not demonstrate that he is known to Indian officials.
[16] With respect to the latter finding, namely that the Applicant did not demonstrate that he is known to Indian officials, the Officer reached this conclusion by rejecting the affidavit of the Applicant’s mother describing the visit from two intelligence officers and one local police officer advising her that they had information about the Applicant’s anti-India activities.
[17] The Officer observed that the Applicant’s mother did not indicate in her affidavit how she knew the police officers were in fact intelligence officers, nor that they identified themselves as such. The Officer also remarked that the Applicant’s mother did not explain how she came to her conclusion that “many people who support Khalistan still in Jail.”
Furthermore, the Officer stated that the Applicant’s mother “is not an objective source with no interest in the outcome of this PRRA application.”
[18] In making these findings, I find the Officer erred in three ways. First, the Officer’s reasons lack intelligibility and transparency. The Decision noted “that the submissions are vague and lacking in detail with regard to the visit to the applicant’s mothers’ home by [the intelligence officers and a police officer],”
and that there was “little to no evidence to connect the visit to the mother’s home to a forward looking risk for the applicant if he returns to India.”
In making this finding, I agree with the Applicant that the Officer appears to have accepted that there was a visit to the mother’s home by the officers yet did not explain what weight, if any, the Officer assigned to the affidavit.
[19] Second, the Officer erred by rejecting the affidavit for what it did not say, as opposed to what it did say, contrary to the jurisprudence: Sitnikova v Canada (Citizenship and Immigration), 2016 FC 464 at paras 22-24.
[20] Third, the Applicant submits, and I agree, that it was unreasonable for the Officer to dismiss evidence from family members on the basis that they are not an objective source: Shilongo v Canada (Citizenship and Immigration), 2015 FC 86 [Shilongo]. This is so especially in a situation where the allegation would not have been made to someone who is uninterested in the applicant’s life: Shilongo at para 29.
[21] The Respondent cites Ikeji v Canada (Citizenship and Immigration), 2016 FC 1422 [Ikeji] to argue that the case law allows decision-makers to discount sworn evidence of family members when there are other problems with it. I find Ikeji does not assist the Respondent.
[22] In fact, the Court in Ikeji confirmed, at para 49, that it was not open to the officer to dismiss the affidavits solely because the affiants have a vested interest in the outcome of the application, citing Cruz Ugalde v Canada (Public Safety and Emergency Preparedness), 2011 FC 458 at paras 23-28; Haq v Canada (Citizenship and Immigration), 2015 FC 380 at para 11; Tabatadze v Canada (Citizenship and Immigration), 2016 FC 24 at paras 4-6). However, in Ikeji, the Court found the officer’s finding to assign the affidavits minimum weight was reasonable because the affidavits were general in nature and lacking detail about when the deponents became aware of the applicant's sexual orientation, even though one of the affiants had known the applicant for over 15 years.
[23] Here, the Officer did not analyze what the Applicant’s mother said, but only what she did not say, and the Officer offered no reason for questioning her objectivity other than noting her relationship to the Applicant.
[24] At the hearing, the Respondent made an additional argument that it was not unreasonable to scrutinize the affidavit more closely because it was in the form of an affidavit, as opposed to an unsworn letter. I reject this argument as the Respondent failed to cite any case law in support of their proposition that officers may scrutinize affidavits more closely simply because they are sworn.
[25] In conclusion, the Officer’s unreasonable rejection of the affidavit of the Applicant’s mother allowed the Officer to find that the Applicant has not demonstrated he is known to Indian officials. That finding in turn led to the Officer’s unreasonable finding that the Applicant has failed to link the country conditions evidence to his particular circumstances. These findings render the Decision as a whole unreasonable.
[26] The application for judicial review is granted.
[27] There is no question for certification.
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