Date: 20030129
Docket: IMM-393-03
Neutral citation: 2003 FCT 97
BETWEEN:
SUNIL SINGH DHAWAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The applicant is a Sikh from Punjab, India. He seeks a stay of the execution, scheduled for January 31, 2003, of a valid removal order pending consideration under section 72 of the Immigration and Refugee Protection Act (the Act) of his leave application challenging the negative decision of Pre-Removal Risk Assessment Officer Marylène Charbonneau (the PRRA officer) dated December 5, 2002, but only communicated on January 9, 2003 who determined the applicant would not be subject:
1. to a danger, believed on substantial grounds to exist, of torture (Section 97(1)(a) of the Act); or
2. to a risk to his life or to a risk of cruel and unusual treatment or punishment (Section 97(1)(b) of the Act.
[2] In his affidavit in support of his stay application, Mr. Dhawan states he fears police torture if he is forced to return to India. He says he was tortured by the Punjab police on several occasions in the 1990's on the false belief held by the police that he was helping Sikh militants and secondly that he "tried to help some people to get justice after the police torture and abuse. I presented them to one of the most famous human rights lawyers in India."
A. Background
[3] The applicant fled India coming to Canada on December 20, 1999. He made a refugee claim nine days later.
[4] On May 29, 2000, the Refugee Division dismissed his claim. It also determined he did not have a credible basis for his claim. His leave application to this Court was dismissed because of the immigration consultant's failure to file an Application Record.
[5] In reaching its decision, the Refugee Division excluded a number of documents because they were filed late including a document dated April 27, 2000 from his doctor in Moga who wrote the applicant was under treatment during four occasions and was "treated for his internal and external injuries and bruises and swelling on [sic] all over in [sic] body due to police torture".
[6] Another excluded document was a report from Dr. Dongier of Montreal dated May 1, 2000 who concludes "ce patient présente des marques physiques et des symptômes psychologiques compatibles avec les violences qu'il déclare avoir subies".
[7] Daljit Singh Rajput, the human rights lawyer, wrote a letter to the applicant's solicitor before the Refugee Division that was also excluded. His letter substantiates the applicant's fears.
[8] After excluding this evidence along with other exhibits, the tribunal considered the merits of his application. It points to his statement "when the police arrested him for having links with terrorist militants, those were merely false pretexts for extracting money from his family". The Refugee Division concludes he was a victim of extortion and not persecution.
[9] The Refugee Division drew an implausibility: his introduction of some victims of police brutality to the human rights lawyer in Moga "while also saying he did not believe he would succeed if he tried to prosecute the police who had tortured him".
[10] The Refugee Division said the fact he could have sued the police in India illustrates the fact that "India is a country where the rule of law prevails. His allegation also shows that he did not exhaust his internal recourses before seeking protection in Canada".
B. Analysis and Conclusion
[11] I am satisfied the applicant has met the three part test for the granting of a stay.
[12] On serious issue, the applicant raised factual and legal issues.
[13] Factually, counsel for the applicant persuaded me, without my going deeply into the merits, the PRAA officer may have made the following errors: (1) ignored personal evidence of the applicant's torture by the police in the Punjab (2) inappropriately relied upon the Refugee Division's comment about extortion without considering the documentary evidence that police torture to extort (3) focussing only on former militant Sikhs as having a high profile to attract police interest and not taking into account documentary evidence that human rights activitists, such as the applicant, are also targeted (4) relying on the IFA alternative without determining whether in the applicant's case it was reasonable.
[14] Intertwined with the factual issues, the applicant raised some legal issues of interest such as whether a pre-removal assessment must be made by an independent tribunal, relying on the decision of the European Court of Human Rights in Chahal v. The United Kingdom and recommendations to Canada by the United Nations Committee against Torture, November 22, 2000 for review by "an independent entity of claims". (This legal issue may not have merit considering the review structure cleared by the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1).
[15] Counsel for the applicant raised other legal issues which I need not canvass since factually I have determined the applicant has made out a serious issue.
[16] The applicant has made out a case of irreparable harm. Torture and loss of life clearly meets this test.
[17] In the circumstances, and both counsel agree, the balance of convenience favours the application.
[18] For these reasons, the applicant's removal is stayed pending determination of his leave application and, if leave is granted, pending the determination of his judicial review.
François Lemieux
Judge
Montreal, Quebec
January 29, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030129
Docket: IMM-393-03
BETWEEN:
SUNIL SINGH DHAWAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-393-03
STYLE OF CAUSE:
SUNIL SINGH DHAWAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 27, 2003
REASONS FOR ORDER : THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: January 29, 2003
APPEARANCES:
Mr. Stewart Istvanffy FOR THE APPLICANT
Ms. Ariane Cohen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Stewart Istvanffy FOR THE APPLICANT
Montreal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec