Date: 19991124
Docket: IMM-4852-98
OTTAWA, ONTARIO, THIS 24TH day of November 1999
BEFORE THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER
BETWEEN:
BHUPINDER SINGH SHAHI
Applicant
- and -
THE MINISTER
Respondent
O R D E R
The decision of the immigration officer should be set aside and the matter be sent back for reconsideration in accordance with these reasons.
"Danièle Tremblay-Lamer"
JUDGE
Date: 19991124
Docket: IMM-4852-98
BETWEEN:
BHUPINDER SINGH SHAHI
Applicant
- and -
THE MINSTER
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of Ms. L. St-Martin, Minister"s delegate, Citizenship and Immigration Canada. In her decision, Ms. St-Martin denied the applicant"s application for an exemption of the requirement under subsection 9(1) of the Immigration Act1 (the "Act") pursuant to subsection 114(2).
[2] The applicant is originally from India. He left India on September 1, 1992 and stayed in Brazil for 2 weeks, then went to Mexico for 6 days. On September 22, 1992, he went to the United States where he lived illegally until he crossed the border illicitly on August 4, 1994. He left Vancouver for Montreal and claimed refugee status on August 16, 1994.
[3] On November 4, 1996, the Immigration and Refugee Board ("Board") concluded that the applicant was not a Convention Refugee. The applicant requested leave for judicial review which was denied on May 29, 1998.
[4] In the meantime, the applicant filed an application in the Post-Determination Refugee Claimants in Canada Class ("PDRCC"). The application was rejected. The applicant then filed an application for judicial review of this decision. Leave was denied on August 29, 1997.
[5] On October 3, 1997, the applicant filed an application for an exemption of the requirement of subsection 9(1) of the Act pursuant to subsection 114(2) of the Act. On November 4, 1997, it was determined by an immigration officer that there were no humanitarian or compassionate considerations that would justify the exemption.
[6] In December 1997, it became apparent that several documents relevant to the applicant"s Humanitarian & Compassionate ("H & C") application had not been forwarded to the immigration officer. Following an agreement between the applicant"s counsel and the respondent"s counsel, the applicant agreed to discontinue his application for judicial review, while the respondent agreed not to deport the applicant until a new assessment had been made under subsection 114(2) of the Act .
[7] On June 4, 1998, a Post Claim Determination Officer ("PCDO") assessed the applicant"s risk of return and found implausible that a person such as the applicant with no political profile would be at risk several years after his departure.
[8] On August 13, 1998, immigration officer Luce St-Martin reviewed the applicant"s evidence and found that there were not sufficient humanitarian and compassionate considerations to justify that the applicant be exempted from the requirement of subsection 9(1) of the Act .
| ANALYSIS |
[9] The applicant submits that the risk review scheme in Canada is in violation of section 7 and 12 of the Canadian Charter of Rights and Freedom2 (the "Charter").
[10] In the Sinnappu v. Canada ( Minister of Citizenship and Immigration)3 decision, McGillis J. addressed the same question. She held that the risk review scheme in Canada does not violate the right to life, liberty or security of the person provided by section 7, nor the right not to be subjected to cruel and unusual treatment or punishment guaranteed by section 12 of the Charter:
| The threshold question to be determined in the first stage of the section 7 analysis is whether the deportation of the applicants to a country engaged in an armed conflict constitutes a deprivation of their right to life, liberty or security of the person. However, it is unnecessary for me to answer that question, as I am of the opinion that the legislative scheme prescribed in the Act and Regulations for risk assessment following an unsuccessful refugee claim does not violate the principles of fundamental justice. |
| [...] |
| In my opinion, the deportation of an unsuccessful refugee claimant to a country engaged in an ongoing civil war does not constitute a violation of section 12 of the Charter in circumstances where a risk assessment conducted under the provisions of the Act or Regulations reveals that he is unlikely to suffer a risk to his life, or a risk of extreme sanctions or inhumane treatment. Given the legislative safeguards and protections afforded to an unsuccessful refugee claimant, deportation would not offend either the "standards of decency" test in Chiarelli v. Canada (Minister of Employment and Immigration), supra, or the "gross disproportionality" test suggested in Barrera v. Canada (Minister of Employment and Immigration), supra.4 |
| [11] Referring to a refugee claimant"s initial right to a hearing before a quasi-judicial body, right up to his application for H & C under subsection 114(2) of the Act , McGillis J., canvasses the extensive safeguards and avenues of recourse available to refugee claimants: |
| [...] [I]t must be recalled that the legislative scheme provides extensive safeguards and various avenues of recourse to a refugee claimant. At the outset, such a claimant has a right to a hearing before a quasi-judicial body and a right to apply to this Court for leave and for judicial review of a negative Board decision. Furthermore, under the post-claim review scheme, an unsuccessful refugee claimant is automatically deemed to apply for landing in Canada as a member of the PDRCC class. He is entitled to make submissions in writing in support of that application in order to establish that he meets the criteria for risk outlined in the Regulations. In the event that the conditions in his country of origin change, he may make additional submissions in writing at any time prior to the making of the decision. He may institute legal proceedings to challenge a negative decision. Furthermore, as a matter of stated ministerial policy, he will not be deported from the country until a negative decision has been made on the application for membership in the PDRCC class. The unsuccessful refugee claimant may also, at any time, make an application under subsection 114(2) of the Act, on the basis of risk or any other factors, to facilitate his landing in Canada on humanitarian or compassionate grounds. Indeed, he may make more than one application for admission on humanitarian or compassionate grounds. In the event that he receives a negative decision on any such application, he may institute legal proceedings to challenge it. An application for membership in the PDRCC class and an application for admission on humanitarian or compassionate grounds are separate, complementary processes. As a result, the legislative scheme provides two separate mechanisms for reviewing evidence of changes in country conditions and for assessing any attendant risks to the unsuccessful refugee claimant.5 |
| [12] I fully subscribe to McGillis J."s conclusions. Therefore, considering that the question has been properly addressed by McGillis J., there is no need to address it again. |
| [13] With respect to the legality of the officer"s decision, the recent Supreme Court decision, Baker v. Canada ( Minister of Citizenship and Immigration),6 sets out the standard of review to be applied in the exercise of discretion, namely, the standard of reasonableness simpliciter. |
| [14] The standard of reasonableness simpliciter developed in Canada (Director of Investigation and Research) v. Southam Inc.,7 contemplates the nature and scope of an unreasonable decision. Thus, an unreasonable decision is one that is not supported by any reasons that can stand up to somewhat probing examination. The Court must therefore look at the evidentiary foundation or the logical process by which conclusions are sought to be drawn from the evidence to conclude on the existence of a defect. Iacobucci J., writing for a unanimous Court in Southam indicates that an example of a defect in the evidentiary foundation would be "an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence."8 |
| [15] In the present case new evidence was provided in support of the H & C application which had to be considered by the officer. A review of the officer"s notes reveals that she affords little weight, and even dismisses the evidence which shows that the applicant could reasonably expect unusual, undeserved or disproportionate hardship in India if removed from Canada. |
| [16] First, the affidavit9 of M. Shupinder Singh Boora, who, while delivering gifts to the applicant"s wife was arrested by the police and questioned on the whereabouts of the applicant, was not even considered by the officer. |
| [17] Second, a letter 10 from Brjijinder Singh Sodhi, a lawyer and a human rights activist of the Sikh Human Rights Group in Pahala, India which mentions that the applicant is still wanted by the police, and that his family continues to be harassed by the police, was also not considered by the officer. |
| [18] Third, the officer omitted to consider the relevance of a newspaper article11 dated June 11,1998, which refers to the persisting harassment of the applicant"s family by the police. |
| [19] These elements corroborate the evidence previously adduced indicating that there is a danger if the applicant were to return to India. |
| [20] First, the warrant of arrest12 issued in the name of the applicant two (2) years after his departure. |
| [21] Second, a newspaper article13 dated August 10, 1997 which indicates that, not only has the police not stopped harassing the applicant"s family, but that the applicant"s life could be in danger if he were to return to India. |
| [22] Clearly, a "probing" examination of the relevant H & C considerations submitted as evidence supports the finding that the applicant could reasonably expect unusual, undeserved or disproportionate hardship if he had to leave Canada due to the Punjabi police"s incorrect suspicion of his involvement with Sikh militants. |
| [23] Further, contrary to the immigration officer"s findings, I consider that the Chahal v. United Kingdom14 decision does indeed support the finding that a person targeted like the applicant is in danger if he were to return to India. Although the European Court of Human Rights, notes a reduction of terrorist-related deaths in the region of Punjab, as well as progress in improving the culture of police abuse and corruption, it is important to point out that the Chahal judgment concludes that the lack of concrete evidence of any fundamental reform of the Punjab police in recent years reflects an assumption that police corruption remains a persisting problem in Punjab. |
| [24] In addition, I am of the view that the factors cited by the officer do not lend support to a finding that the applicant will not endure unusual, undeserved or disproportionate hardship if he had to leave Canada. |
| [25] First, the officer refers to evidence15 demonstrating the innocence of the applicant. With all due respect, this consideration is clearly irrelevant bearing in mind that the applicant"s fear of the police originates from the polices" unjust and incorrect suspicion that the applicant is a Sikh terrorist. |
| [26] Second, the officer"s finding that the situation in the Punjab has improved as revealed in the Chahal16 decision, is not only a perverse understanding of the facts, but also does not support the officer"s conclusion that the applicant could not reasonably expect unusual, undeserved or disproportionate hardship in India if removed from Canada. |
| [27] Lastly, the officer deemed relevant the fact that the applicant"s family did not move. However, the evidence17 demonstrates persisting harassment of the applicant"s family by police. |
| [28] In light of the overwhelming relevant evidence before the officer, I am of the opinion that the immigration officer"s decision was unreasonable in the manner articulated by Iacobucci J. in Southam18. |
| [29] Further, as provided in Baker19, H & C considerations should be considered "in their entirety and in a fair manner"20. I believe that the little weight afforded to relevant considerations, and the contemplation of irrelevant considerations in the H & C application implies that the decision rendered by the officer constitutes an unreasonable exercise of the discretion conferred by section 114(2) of the Act. |
| [30] Consequently, I am satisfied that the decision of the immigration officer should be set aside and the matter be sent back for reconsideration in accordance with these reasons. |
| [31] The applicant"s counsel has submitted the following question for certification: |
| 1) Does the post-determination process and the H & C review where there is risk of return respect articles 7 and 12 of the Canadian Charter of Rights and Freedoms? |
| 2) Is the non-removal of torture victims to countries where there is still a substantial risk of torture clearly prohibited by article 12 of the Canadian Charter and Rights and Freedoms and is it mandatory for the Immigration ministry not to remove? Should article 3 of the Convention against torture be used to interpret article 12 of the Canadian Charter of Rights and Freedoms? |
| [32] Considering that the matter is to be sent back for reconsideration, it would be premature at this time to speculate on the outcome, and therefore there is no need for me to certify these questions. |
| "Danièle Tremblay-Lamer" |
| JUDGE |
| OTTAWA, ONTARIO |
| November 24, 1999. |
2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
4 Ibid. at pp. 819, 831-32. [Emphasis added].
5 Ibid. at pp. 829-30. [Emphasis added].
6 (1999), 174 D.L.R. (4th) 193.
14 70/1995/576/662 (Eur. Ct. H.R.) (unpublished).
15 Exhibit P-12: A detailed report from Sikh Human Rights Group based on their March, 1993 investigation of the police"s false suspicion of the applicant"s involvement with Sikh militants, as well as the harassment experienced by the applicant"s family.
17 Supra note 10; Exhibit P-16: affidavit of Mr. Shupinder Singh Boora attesting to the persisting harassment of the applicant"s family by police.