Date: 20041026
Docket: IMM-1288-04
Citation: 2004 FC 1505
Montréal, Quebec, October 26, 2004
Present: The Honourable Mr. Justice Harrington
BETWEEN:
SUKHJINDER SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Sukhjinder Singh was 16 years old when his refugee claim was heard and rejected. The bases of his alleged well founded fear of persecution were his Sikh religion, imputed political opinion and membership in his family.
[2] He was found not to be a Convention refugee within the meaning of section 96 of the Immigration and Refugee Convention Act, S.C. 2001, c.27. He lacked credibility. A central element of his claim is that the police had arrested his mother and sexually abused her, and afterwards arrested and sexually abused him. A corroborating document in support of those allegations was a medical report. The Board determined that this report should be verified in loco. The Canadian fact finding commission found that the clinic in question did not exist. The claimant was recalled and confronted with this evidence but made no effort to deal with it.
[3] Rather, the emphasis then, and in this judicial review, is on the Board's other finding that Mr. Singh was not a person in need of protection within the meaning of section 97 of the Act, which reads:
|
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. |
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée_: a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant_: (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. (2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. |
[4] Despite the very able arguments advanced on behalf of Mr. Singh, I am not persuaded either that the Board member misconstrued section 97 on a standard of correctness or was patently unreasonable in his findings of fact, or unreasonable in his application of the law to those facts.
[5] Mr. Singh's case is that he left India under a false identity, will be returning without valid travel documents, and perhaps under escort. The Board referred to the human rights information package "drawn from the publicly available sources of the Research Directorate of the Immigration and Refugee Board". The Board concluded that Sikh males in the Punjab are not a category of persons at risk, and that in any event an internal flight alternative was not only a possibility, but was reasonable in the circumstances.
[6] The Board noted that Indian nationals who are returned after their asylum applications have been rejected abroad might be prosecuted if they did not leave with valid documents. In this case, Mr. Singh left with false papers. Thus, there is a possibility he might face prosecution because of his illegal departure. This, however, is a law of general application.
[7] The reasons the Board gave were attacked in that it was submitted that the Board found that Mr. Singh had to demonstrate that he would be personally at risk. However, I take this to be an attack on the style of the reasons rather than on their content. Although the Board said "the claimant must demonstrate he would be personally in danger or at risk", the sentence continues "having regard to his own circumstances or those of similarly situated persons". It is clear that the Board had in mind Sikh males, not just Mr. Singh.
[8] It was further submitted that the Board was selective in its review of documentary evidence. There are parts thereof which might suggest that failed refugees from Canada may be at particular risk because there is some evidence that Sikh militants have relocated in Canada and might train putative refugees to return to India as terrorists. Furthermore, there was some suggestion that "police questioning" would involve torture. The Board should have addressed the issue that police authorities would take the view that Mr. Singh had connections with a terrorist group or a separatist movement and could be connected with activities which might damage India's sovereignty. Thus, it was manifestly wrong for the panel to simply say "there is a possibility for returnees to face prosecution because of illegal departure from India". There is more than a mere possibility when the returnee is a young Sikh male, who is returning from Canada. I cannot agree. There is nothing to rebut the presumption the Board considered and weighed all the evidence (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (FCA)).
[9] It was submitted that this case differs from the decision of the Court of Appeal in Valentin v. Canada (Minister of Employment and Immigration) (FCA), [1991] 3 F.C. 390. That case held that one could not create one's own refugee claim by leaving one's country of origin without authorization.
[10] Valentin was recently considered in the context of section 97 of the Act by Kelen J. in Zandi v. Canada (Minister of Employment and Immigration) 2004 FC 411, [2004] F.C.J. No. 503 (QL). He said at paragraph 10:
To paraphrase the Federal Court of Appeal in Valentin, supra, a defector cannot gain legal status in Canada under IRPA by creating a "need for protection" under section 97 of IRPA by freely, of their own accord and with no reason, making themselves liable to punishment by violating a law of general application in their home country about complying with exit visas, i.e. returning.
I agree.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. There is no question of general importance to be certified.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1288-04
STYLE OF CAUSE: SUKHJINDER SINGH
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 25, 2004
REASONS FOR ORDER
AND ORDER : HARRINGTON J.
DATED: OCTOBER 26, 2004
APPEARANCES:
Jean-François Bertrand FOR APPLICANT
Sylviane Roy FOR RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers FOR APPLICANT
Montréal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec