Date: 20050128
Docket: IMM-87-05
Citation: 2005 FC 145
BETWEEN:
KRISHAN PAL SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
De MONTIGNY J.
[1] Krishan Pal Singh (the applicant) seeks a stay of the execution of his removal order pending final determination of his application for leave and judicial review of the November 30, 2004 decision made by Pre-Removal Risk Assessment Officer Bernier (the PRRA officer) holding:
Suite à l'analyse de la preuve entière, j'estime que le demandeur n'a pas démontré qu'il est ciblé en Inde. Les éléments présentés sont insuffisants pour affirmer qu'il est un sujet d'intérêt, une personne recherchée par les autorités indiennes, qui court des risques personnels de retour. Malgré certaines tensions au pays, la preuve objective indique que les conditions actuelles sont plutôt stables au Pendjab. De plus, il existe une protection de l'État et un refuge à l'intérieur du pays. Le demandeur ne correspond pas au profil d'une personne à risque. Il peut retourner en Inde.
[2] The applicant is a 43 year old Sikh citizen of India, who alleged a well-founded fear of persecution for reasons of imputed political opinion and membership in a particular social group. He alleges a fear of persecution by the police authorities, who believe that he was transporting explosives and ammunitions, thus helping Sikh militant groups.
[3] The applicant arrived in Canada on March 14, 1999 and claimed refugee status on March 17. His claim was denied on October 2, 2000 by the Refugee Protection Division of the Immigration and Refugee Board, on the basis that his story was not credible. The applicant did not file an application for leave and judicial review of that decision.
[4] On October 18, 2000, the applicant made an application under the Post-Determination Refugee Claimants Class (PDRCC) program under the former Immigration Act. On April 5, 2003, the applicant was advised that his claim under PDRCC did not exist anymore and that his PDRCC application would then be treated as a Pre-removal Risk Assessment application (PRRA)
[5] On May 14 and June 10, 2004, the applicant made submissions in support of his PRRA application, alleging essentially the same risks as those advanced to the IRB. He added that he feared to return to India as a refused asylum seeker.
[6] On November 30, 2004, the applicant's application for PRRA was denied, for the reasons given above.
[7] Counsel for the applicant, in his written and oral submissions, spent considerable time describing the persecution faced by Sikhs in Punjab and the police impunity for torture and other forms of violence. He points out that the decision of the PRRA officer focussed on the general danger for some hypothetical average Sikh, and overlooks the fact that he has already been tortured and is suspected of being a militant.
[8] Counsel for the applicant also submitted that the PRRA officer erred in concluding that the applicant would have an Internal Flight Alternative (IFA), and in rejecting corroborative evidence without having any reasons to do so.
[9] For the applicant to be granted a stay of his removal, the tri-partite test established by the Federal Court of Appeal in Toth must be satisfied. That is to say, he needs to demonstrate: 1) a serious issue to be tried, (2) that he will suffer irreparable harm if the deportation order is executed, and (3) that the balance of convenience favours him instead of the Minister.
[10] It is now well established that the purpose of the pre-removal risk assessment process is to assess new risk developments arising after the refugee hearing, not to conduct a second refugee determination hearing. The decision of the PRRA officer must be accorded deference from this Court, since it involves findings of fact, both as to the personal situation of the applicant and as to the human rights record of the country where he is to be removed.
[11] In the present case, counsel for the applicant relied on the same objective documentation submitted to the PRRA officer to argue that Sikhs are still targeted by the police and that suspected militants are still at risk in Punjab. In answering this argument, it suffices to say that the PRRA officer turned her mind to the various reports filed by the applicant and did acknowledge that despite improvements since the end of the 1990s, there are still human rights abuses committed against high profile Sikhs pursuing or suspected of separatist activities.
[12] The PRRA officer came to the conclusion that the applicant was not personally at risk because she was of the view that no demonstration had been made that he was politically active or that he had been involved with militant Sikhs. As she stated:
Le demandeur n'a pas réussi à établir qu'il est relié aux militants Sikhs de quelque manière que ce soit. Il a indiqué dans ses observations écrites qu'il n'a jamais été politiquement actif dans son pays ou qu'il a été impliqué avec les militants Sikhs. Il n'a également pas démontré que les membres de sa famille ont été ou sont impliqués dans la politique ou avec les militants, ce qui aurait pu faire de lui une personne susceptible d'être soupçonnée d'avoir des liens avec les militants. Avec les éléments don't je dispose, il m'apparaît peu probable que les autorités indiennes le suspectent d'entretenir des liens avec les militants Sikhs. Je ne peux donc affirmer qu'il est personnellement visé par les risques allégués.
[13] In light of the evidence that was before her (including new documentary evidence and letters tending to confirm the applicant's story), the PRRA officer was certainly entitled to come to these conclusions (as did the Refugee Board before), and this Court should certainly not substitute its own judgment and reweigh the evidence in the absence of a patently unreasonable finding. The same can be said of her assessment with respect to the possibility of an internal flight alternative.
[14] Turning now to the irreparable harm requirement, the applicant has failed to demonstrate that he is really at risk if he should be removed to India. As held by this Court in a number of cases, when the applicant's account has been found not to be credible both by the Refugee Division and a PRRA officer, this same account cannot serve as a basis for an argument supporting irreparable harm in a stay application: Akyol v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1182; Saibu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 151; Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751; Ahmed v. Canada (Minister of Citizenship and Immigration), [2001] 1 F.C. 483 (T.D.).
[15] In the circumstances, the balance of convenience favours the respondent.
[16] Accordingly, this application will be dismissed. No question is certified.
(s) "Yves de Montigny"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-87-05
STYLE OF CAUSE: KRISHPAN PAL SINGH v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 24, 2005
REASONS FOR ORDER: de Montigny J.
DATED: January 28, 2005
APPEARANCES:
Mr. Stewart Istvanffy FOR THE APPLICANT
Ms. Suzon Létourneau FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Stewart Istvanffy
Montreal, Quebec FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT