Date: 20040602
Docket: IMM-8368-03
Citation: 2004 FC 802
Vancouver, British Columbia, Wednesday, the 2nd day of June, 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
KALMAJIT SINGH MALHI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Pursuant to paragraph 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), the applicant seeks judicial review of the decision made on September 15, 2003, by Ms. Julie Bernier, a Pre-Removal Risk Assessment Officer (the "PRRA Officer"), wherein it was found that the applicant was not a person who faced a risk of persecution, torture, risk to life or cruel and unusual treatment or punishment if he returned to his country of nationality or habitual residence.
[2] The applicant, Kalmajit Singh Malhi, is a citizen of India and alleges persecution.
[3] On September 15, 1999, the Immigration and Refugee Board rejected his claim for lack of credibility. Following this, on October 1, 1999, the applicant submitted an application for consideration under the Post-Determination Refugee Claimants in Canada (PDRCC) class. Then, on June 28, 2002, the Immigration and Refugee Protection Act came into effect, at which point the applicant's PDRCC application was transferred into an application for Pre-Removal Risk Assessment (PRRA) which was rejected on September 15, 2003.
[4] In part, the PRRA Officer's decision provided as follows:
This analysis was conducted as part of the common considerations, which are essential to applications for protection and need to be met in order for the assessment to be conducted as per the terms set out in sections 96 and 97 of the IRPA. This could eventually result in the recognition of the right of protection or of protected person status in Canada. Analysis factors that need to be taken into account in the common considerations include the nature of the risk, state protection and internal flight alternative. In this case, there is insufficient evidence to conclude that the risk of return faced by the applicant is personal and objectively identifiable. Even if it were personal and objectively identifiable, which is not the case here, the documentary evidence shows that state protection is available and that there is an internal flight alternative. The applicant's fear of returning to his country is therefore unfounded for the reasons below.
(...)
[5] In sum, the PRRA Officer noted in her evaluation that her analysis of the case was based on the same facts as those submitted before the Immigration and Refugee Board (IRB), which were found not to have been credible. Further, the IRB concluded that the applicant's allegations did not conform to the current political situation in India, as it appeared from various reliable sources of documentary evidence. This conclusion was shared by the PRRA Officer who considered recent documentary evidence. Clearly, the PRRA Officer did not base her decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard to the material before her. Overall, the decision is not patently unreasonable.
[6] The applicant submits that the PRRA Officer did not take into account Dr. Yee's report with respect to the scars on the applicant's body. This argument cannot succeed. Considering that Dr. Yee's report had already been dealt with the by the IRB, the PRRA Officer noted in her decision that no satisfactory explanations were provided by the applicant to explain the inconsistencies noted in his story. It is well-established that it is within the purview of the PRRA Officer, as a decision-maker, to determine the credibility to be given to the applicant's testimony as well as to the evidence produced in support of the claim (Singh v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1329 at para. 3 (T.D.) (QL)).
[7] As for the new evidence filed on May 29, 2003, an affidavit from the Sarpanch of Nano Malhian village, where the Sarpanch confirms the facts alleged by the applicant. The PRRA Officer finds that, although very informative, this evidence does not in and of itself suffice to reverse the outcome of the applicant's claim in light of both the documentary evidence on file and the explanations provided by the applicant. The PRRA Officer gave little probative value to this new evidence. Considering that the assessment of the evidence is within the purview of the PRRA officer who has the discretion to rely on the evidence that she deems appropriate, the intervention of this Court is not justified [Ferroequus Railway Co. v. Canadian National Railway Co. (2003), 313 N.R. 363 (C.A.)]. The IRB had already examined various reliable sources of documentary evidence and determined that the applicant's allegations did not conform to the current political situation in India. These findings were shared by the PRRA Officer, who considered recent documentary evidence such as the "Country Report on Human Rights Practices - 2002; published by the U.S. Department of State, March 31, 2003; Freedom House, Freedom in the World Country Report; India, 2002, Amnesty International Country Report 2002; Human Rights Watch, Publications, Report by Country, 2003" and found that there was in fact, torture and mistreatment in Punjab and elsewhere in India both at the time of arrest and during detention, but was not applicable to the situation of the applicant as he was not a high profile militant. Although, the PRRA Officer found that the documentary evidence shows a risk of torture and mistreatment for individuals who are arrested and detained, the PRRA Officer found that this was unrelated to the applicant's personal situation, because he has failed to demonstrate that he is being sought or that he personally runs the risk of being arrested. I find that the PRRA's officer did consider the documentary evidence and that it support its conclusion. Although, there may be documentary evidence that presents a somewhat differing position, it is not enough in my opinion to warrant the setting aside of the impugned decision.
[8] The onus is clearly on the applicant to establish that he requires protection (Rule 161 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227). That being said, notwithstanding the fact that the applicant was found not to face a risk of persecution, the PRRA officer also found that, in any case, the latter had an internal flight alternative (IFA). It is well-established that the presence of an IFA is sufficient to prevent the IRB or PRRA Officer, as the case may be, from granting refugee status or the status of a person in need of protection. In Thirunavukkarasu v. Canada (Minister of Employment and Immigration) (1993), 109 D.L.R. (4th) 682 (C.A.), the Federal Court of Appeal determined that the onus is on the applicant to demonstrate that a well-founded fear of persecution exists throughout the country. The PRRA Officer, based on documentary evidence, concluded that Sikhs who have been victims of police abuse and violations can now obtain protection. Considering that the PRRA Officer found the applicant not credible and consequently that he was not a high profile militant, and considering that he has failed to show that an IFA outside Punjab did not exist, the conclusions reached by the PRRA Officer does not justify the intervention of this Court.
[9] Further, the applicant contends that he should have been offered the opportunity to be heard orally. I find that this argument is unfounded. A hearing is held only in exceptional cases, notably where the Minister is of the opinion that one is required in light of the prescribed factors set out in section 167 of the Immigration and Refugee Protection Regulations (subsection 113(b) of the Act). In the present case, the applicant did not establish that he met the requirements under section 167 of the Immigration and Refugee Protection Regulations. Consequently, I find that the applicant was not prevented from exercising his right to be heard, since he had the opportunity to make written representations to the PRRA Officer.
[10] As for the applicant's claim that the delay for processing his application resulted in a deprivation of rights that amounts to lack of fairness, I find that there are insufficient evidence before the Court to come to such a conclusion. In order for a delay to be unreasonable, as to constitute a breach of the duty of fairness, the delay must be unacceptable to the point of being so oppressive as to taint the proceedings (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at para. 121 (S.C.C.). In the present case, the applicant presented no evidence regarding "normal" processing time in similar cases, against which the time taken in his case could be judged inordinate. Further, no time frame is established in the Act within which applications under the PRRA program must be processed. In addition, the applicant has not established that any prejudice resulted form the overall processing time of his application.
[11] In conclusion, I find that the intervention of the Court is not justified. This case does not raise a question of general importance and no such question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the Pre-Removal Risk Assessment Officer, Julier Bernier, dated September 15, 2003, be dismissed.
(Sgd.) " Luc J. Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8368-03
STYLE OF CAUSE: KALMAJIT SINGH MALHI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUÉBEC
DATE OF HEARING: MAY 17, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: JUNE 2, 2004
APPEARANCES:
JACK ROSENFELD FOR THE APPLICANT
ANDREA SHAHIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
JACK ROSENFELD FOR THE APPLICANT
MONTREAL, QUÉBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA