OTTAWA, ONTARIO, FEBRUARY 28, 2007
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
PARVINDER KAUR ANAND, PARMIT SINGH ANAND AND MANMEET SINGH ANAND
Applicants
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Parvinder Kaur Anand and her two sons have applied for judicial review of a PRRA officer’s decision rejecting their PRRA application, dated March 20, 2005. Ms. Anand’s main argument is that the officer erred by failing to consider a specific section in a piece of documentary evidence. As I do not find the officer made any such error, this application must be dismissed.
FACTS
[2] Ms. Anand was born August 5, 1967, in India. Her claim is based on a series of events culminating in the death of her husband, Mr. Amarjit Singh Anand. Mr. Anand was a businessman and also a member of Akali Dal Amritsar, a Sikh political party. According to Ms. Anand, her husband was repeatedly detained, abused, and eventually murdered by Indian police, who accused him of being involved with Sikh militants. He died in March, 2000, allegedly from injuries he sustained in police custody.
[3] After her husband’s death, Ms. Anand claims her nephew came to live with her. He persuaded her to file a complaint against the police with the Khalra Action Committee, an assistance group for victims of police brutality. They went to the Committee’s offices together in May 2000. The Committee sent investigators to speak with people in Ms. Anand’s area on May 19, 2000, and told Ms. Anand to come back to its offices the following week.
[4] However, that night, Ms. Anand says police raided her house, and detained her and her nephew. She says they raped and beat her, and accused her of conspiring against police. Her nephew left town three days after the pair was released.
[5] The Khalra Action Committee eventually contacted Ms. Anand, asking why she had not returned to their offices as promised. She told them she would drop by shortly, but instead left to visit her brother, who arranged to have her stay with a friend. On June 3, 2000, police raided her brother’s house, but Ms. Anand was not there. She left India several months later.
[6] Ms. Anand arrived in Montreal on October 8, 2000 with her two sons Manmeet and Parmeet Singh Anand. They immediately claimed refugee status. The Immigration and Refugee Board’s Convention Refugee Determination Division (the Board) rejected their claim in a decision dated November 19, 2001, mainly because of credibility. The Board concluded that police never tortured or sexually assaulted Ms. Anand, because she declared she had never been detained or abused when she was at the Port of Entry. The family applied for judicial review of the Board’s decision, but that application was dismissed.
[7] Ms. Anand then applied for a risk assessment under the old Post-Determination Refugee Claimants in Canada Class, the predecessor of the PRRA application. The Minister had not decided her application when the Immigration and Refugee Protection Act (the IRPA) came into effect in June, 2002, so her application was converted into a PRRA on July 13, 2005.
THE IMPUGNED DECISION
[8] The PRRA officer started out by referring to Ms. Anand’s history before the Board and this Court. He noted that while previous decision were not binding, they were “pertinent” because the risks Ms. Anand alleged were based on the same set of underlying facts. He acknowledged that her main weakness before the Board was credibility.
[9] Thereafter, the officer dissected documentary evidence to explain why it did not support Ms. Anand’s allegations of risk. First, he looked at letters relating to Ms. Anand’s brother, Joginderpal Singh, and his successful asylum claim in the United States. The officer noted this evidence was generally unrelated to Ms. Anand’s story, and actually contradicted her account of when and where her husband died.
[10] The officer treated a letter to Mrs. Balwant Kaur Chadha from the U.K.’s Home Office the same way. He concluded that none of these documents corroborated Ms. Anand’s story, because they made no reference to the risks she described in her PRRA application.
[11] The officer disregarded certain documents, because they were only relevant to Ms. Anand’s H & C application. Finally, he analyzed general documentary evidence, including a report from the Danish Immigration Service called “Report on the Fact-Finding Mission to Punjab” (the Danish Report). He concluded, based on the evidence, that police in India only target known, high-profile militants. First, he wrote, Ms. Anand’s deceased husband would not have been considered “high profile”, as the term was defined in the documentary evidence. Second, even if he had been a high-profile militant, the evidence indicated police did not target their family members.
[12] With respect to Mr. Anand’s political affiliations with Akali Dal, the officer again turned to the documentary evidence. A 2005 report from the U.K. Home Office said members of Akali Dal are not at risk. In fact, the Shiromani Akali Dal (SAD) is now a recognized and legal political party in India. In any case, the applicants themselves are not even members of SAD, so the officer wrote they would face even less risk.
[13] Regarding their claim that police would target them for making failed asylum claims in Canada, the officer wrote that Ms. Anand had provided no evidence at all to support this allegation. According to the Danish Report, claimants would only be arrested if they either left or returned to India without valid travel documents. In such cases, they could be charged under India’s Passport Act, and face a maximum of two years in jail or a fine of 5,000 rupees. On its own, said the report, claiming refugee status in another country would not be construed as an offence unless the person had connections with a terrorist group or a separatist movement, and could be connected with activities that might damage India’s sovereignty, integrity or security.
[14] Based on the above, the officer concluded the applicants did not face more than a mere possibility of the risks alleged in their PRRA application.
ANALYSIS
[15] From the outset, I note the applicants have not challenged the officer’s findings that Ms. Anand was never detained or abused, and that she is not wanted by Punjabi police. Accordingly, these findings must be deemed to be true and admitted.
[16] The applicants’ main argument is that the PRRA officer erred by ignoring documentary evidence contradicting his conclusions. They challenge his conclusion that they did not support their claim with any documentary evidence, by highlighting a specific passage in the Danish Report – section 9.4.
[17] To fully understand the applicants’ argument, it is necessary to reproduce that section in full, as it is found at pages 117-118 of the Certified Record:
9.4 Controls on arrival
UNHCR observed that, judging by their general information on Indians who returned after having their asylum applications abroad rejected returnees did not have problems if they returned with valid travel documents and if their departure had also taken place with valid travel documents. Those who had not complied with Indian laws on leaving and arriving in India might be prosecuted. According to the Passport Act the maximum punishment was two years’ imprisonment or a fine of a maximum of 5 000 rupees (approx. DKK 800).
According to the UNHCR, refused Indian asylum seekers who returned to India with temporary travel documents could enter without any problems as such, but if they arrived after their passport had expired then they would be questioned about the reasons for this. These arrivals were questioned briefly and could then leave the airport. If the fact that the person returning had applied for asylum/refugee status abroad had not come to the knowledge of the Indian immigration authorities then he would not attract any particular attention other than prosecution for breaking the passport law.
The UNHCR also remarked that in cases where the Indian authorities became aware that the person returning had been refused asylum, it was likely that the immigration authorities would detain the person in question briefly for questioning and then release him, unless he aroused their suspicion by his behaviour or was being sought by the Indian security services. Those in the latter group would be thoroughly questioned and if they were wanted, would be handed over to the security force in question. According to information available to the UNHCR, such questioning in international airports had not led to the use of violence. However, it could not be said with certainty what might eventually happen to those arrivals who were wanted by other security forces and were handed over to them. Strictly speaking they should appear before a judge within 24 hours. However, legal rights were not always observed, e.g. torture took place, as did other human rights abuses such as a lack of medical treatment during detention, etc.
However, it would not be seen as an offence to have sought asylum in another country unless the person in question had connections with a terrorist group or a separatist movement and could be connected with activities which might damage India’s sovereignty, integrity or security, or activities which might have a harmful effect on India’s relations with other countries.
For Indian asylum seekers who were already wanted by the Indian authorities for earlier offences such as alleged involvement in a terrorist group, arrival in India would certainly lead to prosecution wherever the Indian citizen landed or went afterwards. According to UNHCR the Indian system is effective in tracing people who run from justice, even though it is not fully computerised. Thus it would depend entirely on the luck of the Indian national in question if he was able to avoid the administrative authorities on arrival and live in hiding elsewhere in India. According to UNHCR earlier cases of bribery at airports are not relevant in this context, as the authorities have launched a massive campaign against corrupt officials, particularly in the international airports.
A foreign diplomatic mission added that returnees might risk being detained with a view to getting money from them.
Another foreign diplomatic mission said that more attention was paid to returnees if they were being escorted by the authorities. The mission did not have any information about the extent to which returnees had problems on arrival and was not involved in returns.
Ravi Nair, Director of the South Asia Human Rights Documentation Centre, said that the situation varied from case to case. If the person was on the police list of wanted people, then he would be in difficulties and be subject to not particularly good treatment. If he was not wanted, he would probably be obliged to pay a bribe. If he did not pay a bribe, the possibility could not be excluded that he might suffer rough treatment from the police. People could also risk detention for at least 48 hours while it was established whether they were wanted by the police.
The human rights lawyer Ranjan Lakhanpal said that returnees would be questioned at the airport and tortured as all returnees would be regarded as suspect. Lakhanpal said that he knew of a case involving a person who had been returned from the USA two years previously. He had been released after two months. Baljit Kaur (Movement Against State Repression) also said that returnees would be regarded as suspects, detained and tortured. Another member of MASR, Inderjit Singh Jaijee, added that those who were sent back to India as refused asylum seekers would automatically be questioned, and according to Jaijee questioning entailed torture. Jaijee said that the questioning did not take place at the airport but that people were taken to police stations.
The human rights activist Jaspar Singh Dhillon said that those who had been active abroad might have problems if they returned. If those returning were able to contact their lawyers, there was a better chance that nothing serious would happen.
[18] The PRRA officer quoted the first, second and fourth paragraphs of that section in full. Ms. Anand argues the officer read the Danish Report selectively, submitting he was wrong to give more credence to information from the UNHCR, rather than the Indian lawyers and human rights activists quoted in the last three paragraphs. Indeed, the applicants are of the view that the anecdotal testimonials should have been preferred to the UNHCR information, as that organization has no presence in Punjab (Certified Record, page 86).
[19] When reviewing PRRA decisions, this Court has made it clear that it will only interfere if the decision viewed as a whole is unreasonable (Figurado v. Canada (Solicitor General), 2005 FC 347). My colleague Justice Richard Mosley was more specific in Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437. He held, at paragraph 19, that “the appropriate standard of review for questions of fact should generally be patent unreasonableness, for questions of mixed law and fact, reasonableness simpliciter, and for questions of law, correctness.”
[20] This application for judicial review has to do with the weight the officer gave specific aspects of the Danish Report. This is undoubtedly a question of fact, and as such I will only intervene if I find the PRRA officer’s decision is patently unreasonable.
[21] It is trite law that administrative decision-makers have no obligation to refer to every piece of evidence they take into account before making a decision. Nor do they have to distinguish the evidence on which they rely from the other evidence in the record. Unless clear evidence is provided to the contrary, an administrative decision-maker is deemed to have considered all of the evidence in a file before reaching a decision. No such evidence was adduced nor identified here: Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL); Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317, [1992] F.C.J. No. 946 (F.C.A.) (QL); Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102.
[22] The applicants do not claim the officer ignored direct evidence relating specifically to their claims. They are not even arguing the officer ignored an entire piece of general documentary evidence. Rather, they are claiming the officer erred by failing to address two specific paragraphs in the Danish Report. That has never been held to be an error. A PRRA officer is entitled to weigh evidence in its entirety when assessing its reliability and cogency. As Justice Judith Snider wrote in Thavachelvam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1604, at paragraph 13:
It has been held by this Court that, although a decision maker in the immigration process is not required to refer to each piece of evidence that was before her, when there is evidence which directly contradicts their findings, that contrary evidence must at least be acknowledged (Zheng v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 140, para. 13 (F.C.T.D.)(QL)). Read in its totality, the decision demonstrates that the PRRA Officer was aware of and considered the contradictory evidence; a failure to list line by line the various statements buried in the documentary evidence that would support the position of the Applicant is not an error. [Emphasis added]
See also: Hassan, above.
[23] In the case at bar, we can fairly assume the PRRA officer read the whole section 9.4 of the Danish Report, entitled “Controls on Arrival”. That section consists of only eleven paragraphs, and contains both positive and negative information about failed asylum seekers who return to India. In that respect, it is of some significance that the officer concluded the documentary evidence “tends” to indicate the applicants will not be targeted for having claimed refugee status in Canada.
[24] The fact that the PRRA officer placed more stock on the objective information emanating from the UNHCR than on the statements coming from Indian activists, both contained in section 9.4 of the Danish Report, relates purely to the weighing of the evidence. As such, it falls squarely within the PRRA officer’s purview. I note in passing that there is no evidence that the applicants fall within the categories of persons identified by the lawyers and human rights activists as being at risk.
[25] It may be that another officer could have come to a different conclusion. But an application for judicial review is not an appeal, and unless it can be shown that the PRRA officer exceeded his jurisdiction or that his findings are patently unreasonable, his decision must stand. As the applicants have not established that the officer made any error, this application shall be dismissed. No party requested that I certify a question, and none will be certified.
JUDGMENT
· The application for judicial review is dismissed
· No question of general importance is certified.
“Yves de Montigny”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2332-06
STYLE OF CAUSE: PARVINDER KAUR ANAND ET AL
v.
MCI
PLACE OF HEARING: Montreal, Quebec
APPEARANCES:
|
Me Jean-François Bertrand |
|
|
Me Evan Liosis |
SOLICITORS OF RECORD:
|
Me Jean-François Bertrand 83, St-Paul W. Montreal, Quebec H2Y 1Z1 |
|
|
Department of Justice of Canada Guy Favreau Complex 200 René-Lévesque Blvd. West East Tower, 5th Floor Montreal, Quebec H2Z 1X4 |