Date: 19990428
Docket: IMM-1519-98
BETWEEN:
KAMALJIT SINGH KAILAY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Post-Claim Determination Officer (the "Immigration Officer"), wherein the Applicant was determined not to be a member of the Post-Determination Refugee Claimants in Canada Class ("PDRCC").
[2] The Applicant is Sikh and a citizen of India. In the POE notes, he claims he was a member of the Akali Dal party, a political party in India, and that he was being persecuted because of his membership in that group. The Applicant alleges that in 1994, accused of aiding and supporting terrorists, he was interrogated and tortured by the police, on a number of occasions. His friend Nirmal Singh was killed by the police. Following his friend"s death, the Applicant alleges he was again interrogated and tortured by the police, in connection with his friend"s suspected terrorist activities.
[3] He applied for refugee status and his application was refused in a decision of the CRDD, dated 20 October 1997. He applied for reconsideration as a member of the PDRCC and his application was denied in a letter dated 15 March 1998.
[4] The standard of review to be applied on judicial review of PDRCC cases is very high: unless the Applicant can show that the Officer exercised her discretion pursuant to improper purposes, irrelevant considerations, with bad faith, or in a patently unreasonable manner, the Court should not intervene.1
[5] An immigration officer determining whether a claimant is a member of the PDRCC Class is permitted to consider and rely upon the reasons of the CRDD, provided the officer forms his or her own conclusion and does not consider him or herself to be bound by the CRDD decision.2 As I stated in Lishchenko v. Canada (M.C.I.) the mere fact that the Officer came to the same conclusion as the CRDD does not establish that the Officer fettered his or her discretion.
| The Applicants finally submit that the Officer should not have relied on the CRDD reasons and by doing so he fettered his discretion. Again, I disagree. Reasons for Decision are part of the material to be reviewed by the Officer. In fact, the notice sent to the Applicants enumerates the documents to be considered by the Officer when reviewing a PDRCC case and the Applicant is asked to send a copy of the CRDD reasons. The mere fact that the Officer came to the same conclusion as the CRDD does not mean that she fettered her discretion.3 |
[6] In the present case, the Officer"s notes indicate a clear distinction between her conclusions and those of the CRDD. For example, she states that "an analysis of the applicant"s evidence has identified credibility and plausibility issues. I note that the CRDD panel also identified the same issues." After enumerating the concerns of the CRDD, she states that she prefers the findings of the CRDD.
| I have read the various testimonies and versions of the evidence presented at the Port of Entry, the CRDD decision and the applicant"s PDRCC submissions. I do not find the applicant"s submissions alleviate the concerns raised by the CRDD panel regarding credibility and give more weight to the findings of the CRDD.4 |
[7] In addition, the Officer notes a further discrepancy between the Applicant"s PIF and his submissions on the PDRCC application. In his PIF, he claims he was arrested because of his association with Nirmal Singh in 1994, yet in his PDRCC application, he states that his problems with the state began in August 1995.
[8] After a careful reading of the Officer"s notes, the PIF, the Applicant"s PDRCC submissions and the CRDD decision, I am convinced that the Officer did not fetter her discretion in rendering her decision with regard to the Applicant"s PDRCC application.
[9] For these reasons, the application for judicial review is dismissed.
[10] Neither counsel recommended a question for certification.
"Danièle Tremblay-Lamer"
Judge
TORONTO, ONTARIO
April 28, 1999.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1519-98
| STYLE OF CAUSE: KAMALJIT SINGH KAILAY |
and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, APRIL 27, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: TREMBLAY-LAMER J. |
DATED: WEDNESDAY, APRIL 28, 1999
APPEARANCES: Mr. Nainesh Kotak
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD: Nainesh Kotak
Barrister & Solicitor
City South Plaza
414-7700 Hurontario St.
Brampton, Ontario
L6Y 4M3
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990428
Docket: IMM-1519-98
Between:
| KAMALJIT SINGH KAILAY |
| Applicant |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 Sokhan v. MCI (7 July 1997), IMM-3067-96 (F.C.T.D.); De Leon v. MCI (1996), 124 F.T.R. 273 (T.D.); Samoylenko v. M.C.I. (1996), 116 F.T.R. (T.D.).
2 See generally Baranchook v. Canada (M.C.I.) (1995), 105 F.T.R. 106 (T.D.); Rahbari v. Canada (M.C.I.) (9 October 1998), IMM-3189-97 (F.C.T.D.).