Date: 20031107
Docket: IMM-7984-03
Citation: 2003 FC 1303
OTTAWA, ONTARIO, THE 7TH DAY OF NOVEMBER 2003
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
MANGIT SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Manjit 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 September 12, 2003 decision made by Pre-Removal Risk Assessment Officer Charbonneau (the "PRRA officer") holding:
Because the risks alleged by the applicant are not objectively identifiable with respect to the documentary evidence consulted and the subsequent analysis, because the applicant has an internal flight alternative and recourse available to him, and after consulting all of the evidence submitted, I do not find that there is more than a mere possibility that the applicant would be subject to persecution should he return to India. I also do not find that there are serious grounds to believe that he would be subject to a risk of torture, a risk to life, or a risk of cruel and unusual treatment and punishment.
[2] The applicant made a refugee claim which was denied on November 25, 1998, for reasons of credibility; leave to appeal to this Court dismissed on March 23, 2000.
[3] Counsel for the applicant made written submissions to the PRRA officer. He reiterated the applicant's personal story highlighting he was a high profile human rights activist in his village and he was suspected by the police to be a supporter of the militants.
[4] Counsel for the applicant, in his written submissions, spent considerable time describing the human rights situation in India; he referred to the Chahal case rendered by the European Court of Human Rights. He cited documentary evidence on the problem of impunity and torture in the Punjab.
[5] The PRRA officer considered in detail the applicant's submissions. She considered and weighed the applicant's new evidence (specifically, the Khalra Mission Committee letter and letters from his wife and sarpanch) in the context of the Refugee Board's findings and the applicant's submissions. She gave little weight to that new evidence preferring the thrust of the documentary evidence.
[6] She considered newspaper articles reporting on the persecution and mistreatment he and his family have suffered at the hands of the police since 1990. She stated she could not give any probative value to that evidence because it consisted of photocopies of the original Punjabi articles, the translations were from unknown sources and did not mention the source, nor the newspapers the articles had appeared in.
[7] She concluded, for reasons she explained, the applicant was not a high risk human rights advocate noting that claim had never been made before. She determined he had not been nor would be sought today by the police for suspected support of the militants. She reviewed the documentary evidence on the evolution of Sikh militancy in India since 1985 and noted it seemed the militant movement had "almost entirely died out" and "arbitrary arrests of suspected militants by the police have almost completely ceased".
[8] In considering this application for a stay, it is important to recall what the Supreme Court of Canada had to say in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.C. 1, and in Ahani v. Canada (Minister of Citizenship and Immigration), [2002] S.C.C. 2, both cases involving claims by the appellants they would be deported to torture.
[9] The Supreme Court of Canada determined that before considering whether section 7 of the Charter of Rights and Freedoms was engaged, a threshold question of whether the claimants would suffer substantial risk of torture had to be considered. This is what the Court said in Suresh, supra:
¶ 39 This brings us to the question of the standard of review of the Minister's decision on whether the refugee faces a substantial risk of torture upon deportation. This question is characterized as constitutional by Robertson J.A., to the extent that the Minister's decision to deport to torture must ultimately conform to s. 7 of the Charter: see Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, per La Forest J.; and United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, at para. 32. As mentioned earlier, whether there is a substantial risk of torture if Suresh is deported is a threshold question. The threshold question here is in large part a fact-driven inquiry. It requires consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces, and more. It may also involve a reassessment of the refugee's initial claim and a determination of whether a third country is willing to accept the refugee. Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension. We are accordingly of the view that the threshold finding of whether Suresh faces a substantial risk of torture, as an aspect of the larger s. 53(1)(b) opinion, attracts deference by the reviewing court to the Minister's decision. The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not supported by the evidence or fails to consider the appropriate factors. It must be recognized that the nature of the evidence required may be limited by the nature of the inquiry. This is consistent with the reasoning of this Court in Kindler, supra, at pp. 836-37, where considerable deference was shown to ministerial decisions involving similar considerations in the context of a constitutional revision, [page29] that is in the context of a decision where the s. 7 interest was engaged. [emphasis mine]
[10] The Supreme Court of Canada's decision forms a necessary context to this stay application. The PRRA officer's task is a fact-driven inquiry. I am mindful, however, that on a stay application, this Court is not called upon to determine whether the applicant would succeed in his judicial review application if leave was authorized but rather whether the underlying application discloses a case which is neither frivolous nor vexatious and whether the applicant would suffer irreparable harm on a balance of probabilities (see, RJR MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311.
[11] In my view, the applicant has not made out any serious issue to be tried. All errors cited were of a factual nature calling upon the Court to reweigh the evidence and factual findings of the PRRA officer both in terms of the applicant's story and the situation of the Sikhs in India.
[12] Counsel referred to Amnesty International's 2003 Report entitled "India: Break the Cycle of Impunity and Torture in Punjab". I examined that report which focusses on the abuses committed in police custody. It acknowledges reports of torture by Punjab police today stating, however, they are less frequent than during the period of violent political opposition. The Amnesty Report states that torture takes place in two main contexts: In the course of regular criminal investigations and following unlawful and arbitrary arrests. It acknowledges police often use torture or threat of torture to extort money. It states the targets of torture have also changed since the period of militancy when the most frequent victims of police abuse were members of the Sikh community. It states the majority of victims are detainees held in connection with criminal investigations and include members of all religious communities and social groups. It mentions vulnerability of women and notes a different situation today for human rights activists than existed in the past.
[13] I do not see how this Amnesty Report impinges on the findings of facts of the PRRA officer who considered a number of reports on the situation in India.
[14] The applicant has not made out a case of irreparable harm. That case largely depended upon the view taken by the applicant of the PRRA officer's factual findings.
[15] In the circumstances, the balance of convenience favours the respondent.
ORDER
THIS COURT ORDERS that this stay application is dismissed.
"François Lemieux"
J U D G E
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7984-03
STYLE OF CAUSE: MANJIT SINGH v. MCI
PLACE OF HEARING: MONTREAL
DATE OF HEARING: November 3, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice François Lemieux
APPEARANCES:
Mr. STEWART ISTVANFFY FOR THE APPLICANT
Ms. CAROLINE CLOUTIER FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. STEWART ISTVANFFY FOR THE APPLICANT
1070, Bleury Street
Office 503
Montreal, Quebec
H2Z 1N3
Telephone: (514) 876-9776
Fax: (514) 876-9789
Ms. CAROLINE CLOUTIER FOR THE RESPONDENT
DEPARTMENT OF JUSTICE OF CANADA
Complex Guy-Favreau
200, René-Lévesque Blvd. West
East Tour, 5th Floor
Montreal, Quebec
H2Z 1X4
Telephone: (514) 283-1822
Fax: (514) 283-3856