Docket: IMM-15445-23
Citation: 2024 FC 2047
Ottawa, Ontario, December 18, 2024
PRESENT: Mr. Justice Pentney
BETWEEN: |
LOVISH VINAYAK
|
Applicant |
and |
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS |
Respondent |
JUDGMENT AND REASONS
[1] The Applicant, Lovish Vinayak, seeks judicial review of the decision of an Officer of the Canada Border Services Agency denying his request for an administrative deferral of his removal.
[2] The Applicant came to Canada from India on a student visa in 2016. He paused his studies and returned to India after his father encountered some health issues. In December 2018, the Applicant returned to Canada, and he graduated from Sheridan College in December 2019. The Applicant then made several attempts to obtain a work permit or other authorization to remain in Canada, but these were all denied. An exclusion order was issued against the Applicant in November 2022, after he overstayed his temporary resident visa.
[3] The Applicant submitted a Pre-Removal Risk Assessment [PRRA] application, alleging that he faced a risk in India relating to a family dispute over land. In his PRRA narrative, the Applicant stated that “(f)or years, I and my sister have been witnessing the family dispute between my parents and our close relatives. The relatives we have a dispute with are male dominants (sic) and have sent various threats to my family.”
On June 2, 2023, the Applicant’s PRRA was refused. The Officer noted that most of the documents the Applicant submitted with his application did not pertain to any risk that he might face. On the allegation of risk, the Officer found that the Applicant’s evidence did not substantiate his claim. The key finding is stated as follows:
The applicant has submitted a personal narrative as evidence of the risk he would face upon returning to India, however the risk is not clearly defined. The applicant stales that his risk is the result of an ongoing family dispute between his parents and members of his extended family, however these family members are never identified or described, except that they are “male dominants.” There is also no information about the subject of the dispute, who is having the dispute, why the applicant faces harm as a result of the dispute, etc. He only slates that these members of his extended family have sent threats to his immediate family members, that his life is at risk, and that he could he harmed “anytime and anywhere,”
[4] Based on the lack of evidence of risk, the Officer denied the Applicant’s PRRA application. The Applicant says that on June 5, 2023, six days after he received the negative PRRA decision, he was assaulted by thugs who said they knew his address in India and had gangs there ready to attack him. The Applicant says he reported this assault to the Halton police service and the matter is currently being investigated.
[5] On July 7, 2023, the Applicant submitted an application for permanent residence from within Canada on humanitarian and compassionate grounds (“H&C”
), which is currently being processed. On November 8, 2023, CBSA provided a Direction to Report to the Applicant, indicating his removal was scheduled for December 13, 2023. The Applicant submitted a request to defer his removal, and when that was refused he applied to this Court for an Order staying his removal pending the determination of his application for judicial review of the deferral decision. The stay was granted on December 12, 2023. The application for judicial review of the deferral decision is the matter under consideration here.
[6] The determinative issue in this case is whether the Officer’s assessment of the Applicant’s claim of risk was reasonable, in accordance with the framework set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, and recently confirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21.
[7] The Applicant submits that the Officer’s assessment of risk was not reasonable because they failed to engage with the key question of whether the assault he suffered in Canada constituted a “material change”
in the risk of harm he faced in India: Ragupathy v Canada (Public Safety and Emergency Preparedness), 2006 FC 1370 [Ragupathy] at paras 36-39. The Applicant argues that a crucial fact was ignored, namely that the assault happened after the PRRA decision was issued, and therefore the PRRA Officer could not have considered it.
[8] The Applicant points to the Officer’s statement that “[the Applicant] had the opportunity to have his risk allegations assessed, before competent decision makers and that they have had a full and due process with respect to their risk allegations.”
This is unreasonable, according to the Applicant, because it ignores the fact that he was assaulted after the PRRA assessment was done, by assailants who threatened to have him attacked if he returns to India. According to the Applicant, the Officer’s reasons rely too heavily on the PRRA risk assessment and fail to meaningfully engage with the new evidence he put forward about the June 5, 2023 attack.
[9] I am not persuaded. The Officer clearly engaged with the evidence put forward by the Applicant, and assessed it against the background of the previous risk assessment done by the PRRA Officer.
[10] The Applicant zeroes in on some comments made by the Officer, but reasonableness review requires a consideration of the decision as a whole, in light of the record. The core of the Officer’s reasons regarding the attack are set out as follows:
I acknowledge Lovish Vinayak was assaulted on 5 June 2023 in Canada (occurrence number 2023-177582) reported to Halton Regional Police Service and an investigation is currently underway. Lovish Vinayak states that attacks are linked to his relatives in India. I find insufficient evidence to substantiate this claim and insufficient evidence has been provided in the deferral request to establish that [the Applicant] would be in danger if he returned to India.
[11] There can be no doubt that a deferral officer is required to engage in a meaningful way with new evidence about a risk an applicant may face on returning to their home country. This is confirmed in Ragupathy, as well as in Abdulrahman v Canada (Public Safety and Emergency Preparedness), 2018 FC 842 and many other decisions. The question of whether the officer’s engagement was meaningful depends in part on the nature of the evidence that was put before them.
[12] In this case, it is important to focus on the evidence that was (and was not) submitted by the Applicant. A large part of the Applicant’s initial submission in his deferral request focused on his personal situation and his upcoming marriage. He mentioned the same risk he had put forward in his PRRA application, stating that there was a “long term family dispute in regards to property”
and that the relatives involved in the dispute “are male dominants (sic) and have sent various life threats to me and my family.”
The Applicant then mentioned the attack in Canada, identifying one of the assailants and stating that “(t)hey told me that they will kill me and my family as they have their gang who can harm me and my family.”
He expressed his belief that the recent attack was connected to the ongoing family dispute in India, and stated that his family was receiving “continuous threats of killing.”
[13] Based on this evidence, the Officer found that the Applicant had submitted insufficient evidence to substantiate his claim that the June 2023 attack was linked to the ongoing family dispute in India and that he faced a risk on his return. In making this assessment, the Officer correctly stated that in considering the deferral request, an office does not have the delegated authority to conduct risk assessments (in contrast to officers considering a PRRA request, for example). Instead, the Officer was “tasked with assessing whether compelling evidence has been presented to justify the delay of removal for the assessment of allegations of new risk or new evidence of risk.”
In this case, the Applicant’s new evidence was that he was assaulted by thugs who threatened to kill him and his family, and that this was connected to the ongoing family dispute over land in India. The Officer found this allegation “parallels the same risk that was previously assessed in the refused PRRA decision.”
The Applicant says this was mistaken, because the attack was not considered by the PRRA Officer.
[14] I do not agree with the Applicant’s interpretation of the Officer’s statement. The new risk alleged by the Applicant was that he faced attacks and/or death at the hands of unknown thugs in India, because of the ongoing family dispute over land. The risk he put forward in the PRRA was entirely focused on the ongoing family dispute. In this respect, the Officer reasonably found that the risks are “parallel”
. It bears repeating that the Officer specifically referred to the June 5, 2023 attack so this point was not ignored.
[15] In regard to the sufficiency of evidence finding, I do not agree with the Applicant’s claim that this was a disguised credibility finding. At every step of the way, the Applicant’s allegations of risk have been found to be insufficient because of the lack of detail or corroboration he has provided. The Applicant says the root of his problem is a long-standing dispute over land among his family members. He has provided no details regarding which family members are disputing what ownership or interest in which parcel or parcels of land. The Applicant stated that his family have faced repeated and ongoing threats, but provided no evidence about when the alleged threats occurred or what specifically was said. He says that this is a long-standing issue and that both he and his sister have been witness to it. However, the affidavit from the Applicant’s sister did not mention anything about threats relating to a land dispute in India. There is no other evidence about it from any of the family members in India.
[16] Similarly, the Applicant says he reported the assault to the police, and refers to an incident number, but he has provided no other details about it. The only evidence on this point is an email confirmation from the Halton police service confirming that the Applicant had filed a report. He did not provide any details regarding what he had reported to the police, or any written documentation. In a submission tied to this deferral request the Applicant mentioned a witness statement, but it is not in the record. He provided some pictures that he says are from a CCTV camera that recorded the assault, but there is no indication when or where the pictures were taken, nor any explanation for what they are purported to show.
[17] As noted above, I am required to assess the reasonableness of the Officer’s decision in light of the evidence in the record. I am not persuaded that the Officer was required to say more about the Applicant’s allegations relating to the more recent assault given the lack of detail about the incident and the lack of corroboration of the overall narrative about the family dispute. Based on the evidence provided, the Officer’s finding that the Applicant had failed to provide sufficient evidence to substantiate his claim of risk is reasonable.
[18] For the reasons set out above, I am not persuaded that the Officer’s refusal to defer the Applicant’s removal was unreasonable. The application for judicial review is therefore dismissed.
[19] There is no question of general importance for certification.
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