OTTAWA, Ontario, June 12, 2006
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application under s.72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("IRPA") for judicial review of a decision rendered by a Pre-Removal Risk Assessment ("PRRA") Officer dated November 24, 2005, which found that Mr. Jagjit Ray (the "Applicant") would not be subject to a risk of persecution, a threat to his life, or to a risk of torture or cruel and unusual punishment should he return to India.
[2] The Applicant is an Indian citizen who was previously married to Sunita Ray in India. He claims that he and his wife were divorced on May 15, 2001. He entered Canadaas a visitor in May 2003, and married Chantelle Cummings, a Canadian citizen, on September 13, 2003. He then applied for permanent residence under Ms. Cummings' sponsorship, but the application was denied in April 2004, because the marriage was held not to be genuine. On that same day an exclusion order was issued against the Applicant, and he signed a statement indicating that he did not wish to apply for a Pre-Removal Risk Assessment, which indicates that he felt that he had no fear of persecution or a threat to his life or a risk of torture or cruel and unusual punishment if he returned to India.
[3] An arrest warrant was issued against the Applicant on June 10, 2004 after officers of the Canada Border Services Agency were unable to contact him to prepare for his removal from Canada. Then on September 4, 2005, the Applicant was arrested at the Canada/US border as he attempted to re-enter Canada from the United States at un unguarded border crossing. The Applicant claims to have lived illegally in the United States from April 2004 until his arrest. On October 17, 2005, the Applicant was found guilty of five counts of possession of false documents pursuant to s.122 of IRPA.
[4] On November 9, 2005, the Applicant filed a PRRA application. He now claims that he feared that if returned to India, his former wife would kill him, and that he also feared that his ex-wife's family and the police in India may also persecute him. The Applicant claimed that when he was living in India, his ex-wife threatened him and forced him to give money to members of her family. He claims that his ex-wife asked for a divorce since she was in love with a police officer. He alleges that his ex-wife's family continually asked him for money, and would made false accusations against him to the police.
[5] The Applicant claims that he was arrested twice by the police. The first time he was allegedly only released after his father paid bribes. After this first arrest the Applicant went to Australia. He allegedly went there to seek protection, but his wife convinced him to return to India. The Applicant returned to India on May 13, 2003, and was allegedly arrested a second time as a result of false accusations made by his in-laws. Once again his father managed to get him released. The Applicant subsequently allegedly went to the hospital for treatment, and later that month left India for Canada.
[6] The Applicant claims that the police in Indiahave repeatedly visited his family and are still looking for him. He also asserts that police officers in Indiatreat domestic problems as private matters and would not protect him from his ex-wife and former in-laws.
[7] The Applicant, in filing his PRRA application, failed to file an affidavit substantiating the above facts.
[8] The PRRA Officer noted that the Applicant submitted additional evidence in support of his PRRA Application. This included letters from the Applicant's parents, as well as ten affidavits. The Officer gave little probative value to letters from the Applicant's father and mother since they were undated and support the Applicant's personal interest. The Officer also noted that the facts mentioned in the letters have not been demonstrated through objective and reliable evidence.
[9] The ten affidavits were also given little probative value. The ten affidavits all basically say the same thing, using the same words. The Officer explained that the facts cannot be considered proven merely because they were explained to a notary public. The Officer also noted that the Applicant's sister and sister-in-law have a personal interest with regards to the Applicant's application. The remaining affidavits from a city councillor and seven neighbours were only given little probative value since the Officer found that the Applicant's relationship to the signatories to these affidavits was not clear.
[10] The PRRA Officer found that the Applicant had not submitted evidence demonstrating that his former wife had extorted money from him. For this reason, the Officer treated documents indicating that the Applicant's family was wealthy to be of less relevance as to the alleged risks.
[11] The Officer also gave little probative value to a letter from the Applicant's former father-in-law, reporting an act of violence committed by the Applicant in April, 2003, the poison pen letter. The Officer found that absent supporting evidence from any police authority which would prove that the letter had actually been sent to them, and absent any warrant or indictment provided to substantiate the Applicant's allegations, this piece of evidence could only be given little probative value.
[12] The Officer noted that the Applicant did not mention the dates and frequency of the events described. The Applicant did not name the individuals who played a role in the extortion attempts, and he failed to mention the amounts of money involved. He observed that the Applicant's ex-wife claimed during the divorce proceedings that the Applicant had been violent, and he was not satisfied with the dowry that was provided.
[13] The Officer also noted that the Applicant only first attempted to obtain documents concerning his situation in India once his removal from Canada seemed imminent. He noted that the Applicant had abandoned a PRRA claim on April 7, 2004, when he stated that there was nothing preventing him then from returning to India.
[14] The Officer then examined the treatment of family violence in India. The PRRA Officer examined the documentary evidence, and found that most of the documents failed to mention cases of men being victims of domestic violence. Although a Human Rights Watch report from 2004 found inadequate protection for men, the Officer noted that the report failed to provide details. The PRRA Officer also referred to newspaper articles that reported cases where husbands had been abused by their in-laws. However, the Officer held that the evidence did not establish a link between the alleged risks and the Applicant's personal situation.
[15] The Applicant claims that the Officer breached the test in Hilo v. M.E.I, Hilo v. Canada (Minister of Employment and Immigration (1991) 15 Imm. L.R. (2d) (F.C.A.)["Hilo"], since it is not clear whether the Applicant's testimony has been completely rejected by the PRRA Officer. The Applicant claims that the Officer's decision to only address the corroborative evidence is in breach of Hilo, above.
[16] The Applicant's main argument is that the PRRA Officer erred in law by giving the documents on record little probative value. It is argued that the reasons provided by the PRRA Officer, even when taken cumulatively, could not assist the Officer in determining that the documents should only receive a low probative value; however, they could only act as additional reasons in support of other valid reasons to impeach credibility. The Applicant relies on Tshijuka Mpiana v. Canada (M.C.I.), 2005 FC 1675 in support of this general argument.
[17] The parent's letters were accorded little weight because they were not dated, because the parents had a personal interest in the Applicant's application, and because the facts mentioned in the letters have not been otherwise demonstrated through objective and reliable evidence. The Applicant argues that his parents may not know the exact dates for events that occurred, and that the absence of dates is not such a key finding as to impeach the credibility of the letters. It is submitted that it is the norm for people to call witnesses in order to support their interest in court, and that the letters support the Applicant's interest. Finally, the Applicant notes that the Officer erred by finding that the facts in the letters were not substantiated through other reliable evidence since the facts were corroborated through the Applicant's own evidence and that of other people who had provided evidence. The Applicant supports this final argument with references from the jurisprudence that suggest that a Board must provide valid reasons to doubt an applicant's credibility, and that when an applicant swears to the truth of certain allegations, there is a rebuttable presumption that these allegations are true: Maldonado v. M.E.I., (1980) 2 F.C. 302 at 305 ["Maldonado"]; Fariba Sadeghi-Pari v. Canada (M.C.I.), [2004] F.C.J. No. 316, 2004 FC 282; Najimiding v. Canada (M.C.I.), [2004] F.C.J. No. 621, 2004 FC 515.
[18] The Applicant claims that the Officer erred with respect to the weight to be accorded the affidavits by finding that "The facts cannot be considered as proven simply because they were explained to a notary public": PRRA Decision, in Respondent's Record, at 13. The Applicant submits that unless there is some reasonable ground to doubt their contents, the affidavits cannot be dismissed for this reason.
[19] The Officer found that the Applicant's sister and sister-in-law have a "personal interest with regard to this application": PRRA Decision, in Respondent's Record, at 13. The Applicant contends that the fact that these people are related to the Applicant is insufficient, without evidence of dishonesty, to impeach their credibility.
[20] The Applicant argues that the PRRA Officer knew that affidavits were sworn by the Applicant's brother, sister, neighbours, and a municipal councillor. If it is accepted that the relationship between the Applicant and these witnesses has some impact on the probative value of their testimony, the Applicant alleges that it cannot be of such importance as to find that their testimony is of "minor probative value": PRRA Decision, in Respondent's Record, at 13.
[21] The Applicant argues that the PRRA Officer erred by according little probative value to the poison pen letter from the Applicant's father-in-law simply because there was no supporting document from the police proving that the letter had actually been sent to them. The Applicant submits that the Officer was improperly concerned by whether the denunciation was sent. The Applicant claims that the existence of the denunciation is also important, and the letter corroborates this denunciation. Absent other evidence with respect to the poison pen letter, the Applicant submits that it should not have been given little weight.
[22] Finally, the Applicant notes that the PRRA Officer found that, "no warrant or indictment was provided to substantiate the applicant's allegations": PRRA Decision, in Respondent's Record, at 13. The Applicant claims that a lack of evidence of something that was not directly related to the evidence cannot be grounds to find that a fact has not been proved. The Applicant claims that there is already sufficient evidence to support the claim that a denunciation was made, and the Applicant was then arrested and beaten.
[23] The Respondent submits that since the Applicant ignored or infringed Canada's immigration legislation by leaving the country in April 2004 without reporting his departure, and by being convicted under IRPA of being in possession of false documents, the Applicant has not come to the Court with clean hands. The Respondent submits that since the Applicant does not have clean hands, the Court does not have to entertain his application: Jaouadi v. Canada (M.C.I.), (2003) 257 FTR 161 (F.C.) ["Jaouadi"].
[24] It is the Respondent's view that it was open to the PRRA Officer to have decided to accord little weight to the letters written by the Applicant's parents, as well as the affidavits on record for the reasons provided by the Officer. The Respondent claims that it was within the purview of the PRRA Officer to find the letters self-serving: Nasoordeen v. MCI, [2005] FCJ 1346. Moreover, the Respondent claims that as a general proposition, the Court will not review the weight given to evidence by PRRA Officers: Dissanayakage v. MCI (2004) 130 ACWS (3d) 994 (FC).
[25] The Respondent notes that there is no evidence supporting the Applicant's allegation that his former in-laws extorted money from him, and that such a practice would continue were he returned to India. The Respondent also notes that the Applicant has failed to adduce any document in support of his claim that his former in-laws were targeting him and making false claims to the police.
A. Clean Hands
[26] I am satisfied the Court should refrain from exercising its discretion in this case to deny the application for judicial review solely on the ground that the Applicant does not have clean hands. The Federal Court of Appeal recently clearly reviewed the clean hands doctrine within the context of immigration law at paragraphs 9 to 11 of Thanabalasingham v. Canada (M.C.I.), [2006] F.C.J. No. 20, 2006 FCA 14 (QL):
... [T]he case law suggests that, if satisfied that an applicant has lied, or is otherwise guilty of misconduct, a reviewing court may dismiss the application without proceeding to determine the merits or, even though having found reviewable error, decline to grant relief.
In exercising its discretion, the Court should attempt to strike a balance between, on the one hand, maintaining the integrity of and preventing the abuse of judicial and administrative processes, and, on the other, the public interest in ensuring the lawful conduct of government and the protection of fundamental human rights. The factors to be taken into account in this exercise include: the seriousness of the applicant's misconduct and the extent to which it undermines the proceeding in question, the need to deter others from similar conduct, the nature of the alleged administrative unlawfulness and the apparent strength of the case, the importance of the individual rights affected and the likely impact upon the applicant if the administrative action impugned is allowed to stand.
These factors are not intended to be exhaustive, nor are all necessarily relevant in every case.
[27] In this case, the Applicant lived illegally in the United States during a sixteen month period, and failed to report to Canadian authorities during that time. The Applicant was also found guilty of five offences for possession of false documents. But these misconducts do not impact the impugned PRRA decision. Unlike Jaouadi, above, and other cases where an applicant has lied to the Tribunal, and then seeks to use the Court as a shield from the Tribunal's adverse findings, in the present case the Applicant's misconducts had no impact on the PRRA decision, and do not undermine the present application for judicial review. The Applicant's sentencing for the offences for possession of false documents serves to deter others from possessing false documents, and in this case should not also be used as the only means to preclude the Applicant from exercising his right to seek judicial review of his PRRA Decision. The Court sees no reason to refrain from examining the merits of the Applicant's claim.
B. Standard of Review
[28] The Applicant made no submissions on the appropriate standard of review of the PRRA Officer's decision, and the Respondent simply argued that, in general, the Court will not review the weight to be given to evidence by PRRA Officers. Justice Edmond Blanchard noted the following in Selliah v. Canada (M.C.I.), [2004] F.C.J. No. 1134, 2004 FC 872 (QL) at para. 16 ["Selliah"]:
PRAA officers have a specialized expertise in risk assessment. Their findings are usually fact driven and, in my view, warrant considerable deference from a reviewing Court. There appears to be some debate in the jurisprudence as to whether the findings of PRRA officers are reviewable against a standard of reasonableness simpliciter or patent unreasonableness: See Sidhu v. Canada (MCI), [2004] F.C.J. No. 30,online: QL, 2004 FC 39, at para. 7, and Joseph v. Canada (MCI), [2004] F.C.J. No. 392, online: QL.
[29] Since the Selliah decision, Justice Richard Mosley engaged in a full pragmatic and functional analysis and concluded that the appropriate standard of review for the judicial review of a PRRA Officer's questions of fact is patent unreasonableness: Kim v. Canada (M.C.I.), [2005] F.C.J. No. 540, 2005 FC 437, at para. 19 ["Kim"]. The weighing of evidence is a factual determination. Since the Kim decision engaged in a full analysis of the appropriate standard, I follow its reasoning and adopt the standard of patent unreasonableness for the review of the PRRA Officer's factual findings and treatment of the evidence.
C. The PRRA Officer's Treatment of the Evidence
(1) The Applicant's Testimony
[30] The Applicant provided a three page written response to question 50 of the PRRA application form, which requests that the Applicant:
Set out in chronological order, all the significant incidents that caused you to seek protection outside of your country of nationality or former habitual residence. Make reference to any measures taken against you, your family members, or any other individuals in a similar situation.
Applicant's Record, at 13.
[31] The PRRA Officer's comment with respect to the Applicant's testimony was simply that, "The applicant provided few details about the events that he described": PRRA Decision, in Respondent's Record, at 13. The Officer then turned to the documents provided in support of the application.
[32] I am satisfied the PRRA Officer has provided adequate reasons with respect to the Applicant's testimony.
[33] In my view, the PRRA Officer made several minor errors in examining the evidence, but the Officer's findings when considered as a whole are not patently unreasonable. The Officer's errors are not so overriding with respect to the evidence as to require the Court to quash the PRRA decision.
[34] The PRRA Officer made the following key finding with respect to the evidence on record:
Generally speaking, there was no mention of the dates and frequency of the events that were described, the periods during which he was a victim of violence or threats, the names of the individuals who played a role in these events or the amounts of money involved.
(PRRA Decision, in Respondent's Record, at 13.)
[35] In short, the PRRA Officer could not find sufficiently detailed evidence to corroborate the Applicant's claim that his former wife, her family, or the police would threaten him in India. It was open on this ground alone for the PRRA Officer to find, as she did, that the Applicant had failed to convince her that he might be submitted to a risk of persecution, a threat to life, a risk to torture or to the risk of being submitted to cruel and unusual punishment.
(2) The Letters from the Applicant's Parents
[36] I believe that it was open to the PRRA Officer, measured against the standard of patent unreasonableness, to find that the parent's letters could only be granted little probative value. As noted above, the PRRA Officer found a lack of specific detail pertaining to possible future persecution. I also find that the PRRA Officer could reasonably decide as she did to grant less weight to these letters because they were undated and because the facts mentioned in the letters were not demonstrated through other reliable evidence.
[37] The Applicant mischaracterized the PRRA Officer's finding that the parent's letters were of little probative value in part because the parents were unable to provide dates for key events. In fact, the PRRA Officer gave little probative value to the parent's letters in part because the letters themselves were undated. The date included on a letter assists an Officer to determine whether the circumstances described in a letter are current. In certain cases, the timing of receipt of a letter requested by the applicant may affect the applicant's credibility. In short, it was open to the PRRA Officer to note that the letters were not dated, and to accord less weight to them. Without a date, the PRRA Officer risks engaging in speculation as to whether the contents of a letter remain valid.
[38] The Applicant claims that the PRRA Officer erred by noting that the facts mentioned in the letters have not been confirmed through objective and reliable evidence, and provides case law that suggests that the letters enjoy the presumption of truth. The difficulty for the Applicant is that the presumption of truth applies when an applicant or witness swears to the truth of allegations. In this case, however, the Applicant's parents did not swear affidavits; they simply wrote letters. Had the parents sworn affidavits, their statements may have been given slightly more probative value. However, absent affidavit testimony, it was open to the PRRA Officer to accord the factual contents of the parent's letters little weight without additional corroborating evidence.
[39] I agree with the Applicant that the PRRA Officer erred by granting little probative value to the letters on the basis that the letters support the applicant's personal interest. The mere fact that the letters were written by the Applicants' relatives is insufficient grounds, without other evidence of dishonesty or other improper conduct on the relatives' part, to accord their letters little weight. However, the PRRA Officer did not decide to grant these letters little weight solely on this basis. The other grounds to accord the letters little weight pass scrutiny, and the Officer's error is not so overriding as to render her this decision patently unreasonable. When considered as a whole, the decision with respect to the letters passes scrutiny.
(3) The Affidavits
[40] The PRRA Officer clearly was correct in the reasons to accord little weight to the affidavits. A single reading of the affidavits clearly demonstrates that the affidavits show only that someone drafted them, copying the words of a sample affidavit. Paragraphs 2, 3, 4, 5, 6 and 7 of most of the affidavits are identical with the exception of the name of the affiant and some other minor statements.
[41] I am satisfied that the remaining reasons provided by the PRRA Officer provide sufficient support for the conclusion that the affidavits could be accorded little weight. It was open to the PRRA Officer to find that there was insufficient information regarding the relationship between the Applicant and the signatories to the affidavits. I also believe that when the PRRA Officer's finding to the effect that the facts are too vague is considered, the PRRA Officer's statement that, in this case, "The facts cannot be considered as proven simply because they were explained to a notary public" passes scrutiny: PRRA Decision, in Respondent's Record, at 13. Each affidavit contains the same, word for word description of the facts. But the description is so vague, that it was open to the PRRA Officer to state that these facts cannot be proven simply because they were related to the notary. While the Applicant correctly notes that the decision-maker cannot dismiss the evidence without reasons to doubt their contents, in my view, the lack of detail provided to the factual record provides sufficient ground for the PRRA Officer to doubt the content of the affidavits.
[42] The above analysis demonstrates that the PRRA Officer was correct in providing adequate reasons with respect to the Applicant's testimony. In addition to the reasons given by the PRRA Officer, the issue of clean hands clearly shows that the Applicant is not entitled to a positive determination of his PRRA hearing.
JUDGMENT
The application for judicial review is denied. No question was submitted for certification.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7402-05
STYLE OF CAUSE: JAGIT RAY v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montreal, Qc
REASONS FOR JUDGMENT: TEITELBAUM J.
APPEARANCES:
| Me Jean-François Bertrand
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| Me Daniel Latulippe
|
SOLICITORS OF RECORD:
| Bertrand, Deslauriers Attorneys
|
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| John H. Sims, Q.C. Deputy Attorney General of Canada
|