IMM-3175-06
Ottawa, Ontario, June 23, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION and
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
REASONS FOR ORDER AND ORDER
[1] This is a motion by the applicant to stay the enforcement of a removal order issued against the applicant, originally scheduled on June 16, 2006.
[2] The Minister’s counsel told the Court that he suspended the enforcement pending a decision on this motion.
RELEVANT FACTS
[3] Mr. Sogi has been the subject of many decisions by the Immigration Board as well as the Federal Court since he arrived in Canada on May 8, 2001.
[4] I will not review the previous decisions in detail except to point out that Mr. Sogi has been subject to a removal order for several years, i.e. since October 8, 2002, and that the Canadian authorities did not proceed with his removal because the pre-removal risk assessment had not been adequately prepared.
[5] In fact, on September 30, 2004, his pre-removal risk assessment application (PRRA) was dismissed by the Minister’s delegate, who considered that removal was the only alternative. The Federal Court of Appeal granted the application by the Minister of Citizenship and Immigration to set aside this decision since the Minister’s delegate had not considered the evidence relied on for the Security Intelligence Report (SIR).
[6] The matter had therefore been returned to another officer of the Department who made a new decision on May 11, 2006, which reads essentially as follows:
After fully considering all facets of this case, including the humanitarian aspects, and an assessment of the risk that Mr. Sogi might face if returned to India and the need to protect Canadian society, I am of the opinion that the Applicant, Mr. Sogi constitutes a danger to the security of Canada, and that he does not face a risk under s. 97 of IRPA should he be returned to India. Consequently, his request for protection is denied.
[7] He adds immediately afterwards, just before his signature, the material that he took into consideration and I quote:
I have carefully reviewed and considered the entirety of the submissions from Mr. Sogi (through his lawyers), the PRRA Assessment prepared by Immigration officials, the Restriction Assessment prepared by Canadian Border Safety Agency officials, the background information at CSIS and all attendant documentation.
[8] On June 6, 2006, the Canada Border Services Agency advised Mr. Sogi’s counsel that the removal would be enforced within three weeks.
[9] On June 11, 2006, the applicant filed a motion to stay.
[10] For his motion to succeed, the applicant must establish that there is a serious issue to be tried, that he is at risk of irreparable harm if he is removed, and that the balance of convenience is in his favour.
SERIOUS ISSUE
[11] To determine whether the applicant raised a serious issue to be tried in his motion to stay, we must examine the two applications for judicial review on which this motion to stay is based. In fact, last May 31, the applicant filed an application for judicial review of the decision denying him his refugee claim following a pre-removal risk assessment (PRRA) issued by Citizenship and Immigration Canada, represented by the Minister’s delegate, L.J. Hill, dated May 15, 2006.
[12] Indeed, the applicant also applied for a judicial review of the enforcement of the removal order against the applicant, on June 11, 2006.
[13] The applicant filed a single motion to stay related to the two applications for judicial review.
[14] The judge hearing a motion to stay does not have the responsibility of reviewing the findings of the officer responsible for issuing a notice regarding the expectation of harm if the person were to be removed to his native country.
[15] The judicial review of the PRRA officer’s decision will be decided at a later stage; first, a judge shall examine whether the leave must be granted and then, if leave is granted, a judge will examine the reasonableness of the decision on the merits in accordance with legislative and jurisprudential requirements.
[16] It is my responsibility at the stage of the stay to determine whether, prima facie, the decision is consistent with the applicable legal provisions and whether the decision-maker reviewed the evidence in the record including the secret evidence and specifically the Security Intelligence Report (SIR) and the documents referred to in that document. Until there is a new order, the decision is legal, and I have the responsibility to consider it in light of the new evidence filed in the record, if there is any.
[17] It appears clear on reading the PRRA decision, which I reviewed, that the officer’s review of Mr. Sogi’s situation was complete, detailed and systematic. Inter alia, after his refugee claim was denied by the United Kingdom, he entered Canada under a false identity while the British authorities were preparing to remove him. On that point, the reasons stated by the British authorities were the same as those of the Canadian authorities, namely that his presence was no longer authorized on British soil because he constituted a threat to national security due to his involvement in terrorist activities on an international scale.
[18] Although it was acknowledged during his many immigration hearings that he had used many false identities on British soil and well as on Canadian soil, and when he traveled to India and to Pakistan, Mr. Sogi continued to deny that he was a terrorist member of the international terrorist group “Babbar Khalsa International” (BKI) organization.
[19] The PRRA officer examined and considered the extensive documentary evidence in the record submitted by both parties.
[20] At page 16 of his decision, the PRRA officer discussed a report by a Danish fact-finding mission to Punjab, Danish Immigration Services, May 2000:
It continued by saying “that several people who had previously been militants and who had served their sentences for terrorist activities now lived a normal life in Punjab.” For example, a politician who had been accused of involvement in the assassination of Indira Gandhi in 1984 was now a Member of Parliament. The fact-finding mission consulted NGOs and independent lawyers and most of them believed that currently there was no militant movement in Punjab. Most active members were now either inactive or living abroad.
[21] Later on in his analysis at page 19, the PRRA officer discusses the repeal of the Prevention of Terrorism Act (POTA):
Alternatively, because of the repeal of POTA, and the protections offered by the new legislation, in the event that he was so very well-known, I am still not convinced that he couldn’t return to any part of India without facing such risks.
There is evidence of BK militants having been arrested in the last year or so. They were arrested in relation to specific terrorist actions. I have seen nothing persuasive in the evidence that even those active militants who have been arrested have been subjected to harsh treatment.
There is nothing convincing in the evidence that would lead me to conclude that Mr. Sogi would be subjected to torture or a risk to his life or cruel and unusual treatment or punishment if he were to be arrested because of his membership in the BK(I). I note the letter of Amnesty International dated August 6, 2003 to Lorne Waldman indicating that a person believed to belong to an organization such as BKI could be charged under POTA, the provisions of which were believed by AI to violate international human rights standards.
The evidence establishes that the POTA, Prevention of Terrorism (second) ordinance 2001 has been abolished and the new act, Prevention of Terrorism Act, 2002 has been adopted. This act has been recognized as being a notable improvement over POTA and provides safe guards to an accused person. Section 33 of the Act provides that confessions cannot be compelled or induced and that any complaint of torture is to be investigated by a medical officer. Thus, the concerns raised by the August 6, 2003 letter are not persuasive. I note that Mr. Sogi could be subjected to prosecution for the role he might have played in the aborted bombing but that the new legislation protects against the abuses of the former legislation.
[22] It is interesting to note that in the PRRA agent’s report, he carefully reviewed the risk faced by other militants from Punjab who were removed to India after several years abroad, and I quote at page 18:
In order to better assess the risk that may face Mr. Sogi upon return to India I have looked at the militants who have returned to India. Mr. Wassan Singh Zaffarwal, chief of the Khalistan Commando Force, recently returned to India after 19 years abroad. He was treated to an overwhelming welcome by the people of his region. He has been exonerated on 7 of the 9 criminal charges against him. He was arrested shortly after his return to India for the other charges but was released on bail. In the ‘Press Trust of India’ dated March 27, 2003, he said “there is no scope for revival terrorism in Punjab.”
Another former militant, Jagjit Singh Chauhan, returned from England in 2001. During his early years in England, he propagated the cause of Khalistan on a radio station under his stewardship. In addition, Satnam Singh Paonta, an associate of Gajinder Singh, chairman of the Del Khalsa International, a pro-Khalistan movement, also returned to India. As reported in ‘The Economic Times’ “Chauhan put a price on then Indian prime minister Indira Gandhi’s head and yet he is being allowed to roam around freely”. There were no reports on file to indicate that either of them has faced torture upon their return.
[23] The PRRA officer proceeded with his analysis based on the information and the evidence before him, he determined that militant Sikh extremists who were removed to India, had been treated normally for persons charged with criminal offences, inter alia they were given the opportunity for bail and ultimately faced charges before the Indian courts, the same as any other citizen.
[24] After reviewing and analyzing in detail the conditions in India and Mr. Sogi’s personal situation, the PRRA officer determined that Mr. Sogi would not be subject to a risk for his life, or to a danger of torture, or to a risk of cruel or unusual treatment or if he were to return to India, and this was after reviewing all of the evidence available, not only the evidence involving Mr. Sogi directly, but also the documentary evidence on the situation in India and on the situation of militants who returned to India after residing abroad for several years.
[25] The officer also reviewed the proposed alternatives to his removal. He dismissed them all, first, because Mr. Sogi had not been credible in the past and, second, in view of the evidence of his membership in a terrorist group. He also determined that the proposed conditions to have friends or other persons responsible for his undertakings if he were released did not at all offset the danger that Mr. Sogi posed to Canada, the danger that was recognized unequivocally in an earlier decision.
[26] With regard to weighing the documentary evidence, it is a fact that the PRRA officer assigned more weight to some documents than to others, inter alia a report issued by the Refugee Board (RB) rather than another report issued by Amnesty International. Whether or not we agree with either of these documents, it is not my place to reassess all of the documents, but rather to determine whether the analysis that was carried out on them was unreasonable.
[27] There may very well be contradictions within the voluminous reports regarding the situation in India; the issue for the Federal Court is not to decide for the immigration officer but rather to examine whether the analysis of the documentary evidence available was unreasonable and whether his findings are themselves unreasonable. It is the very essence of analysis that certain documents are given more weight than others; the suggestion by the applicant’s counsel to the effect the officer’s findings should be set aside because he assigned more weight to one document and dismissed another is inadmissible.
[28] With regard to the application for leave filed against the decision to enforce the order to remove the applicant (docket IMM-3175-06), the factual arguments are the same as those in the matter challenging the PRRA officer’s decision, adding that the applicant acknowledged that the removal officer has less room to maneuver than the PRRA officer, that the only legal grounds raised involve the Charter, and that the enforcement of the removal was inconsistent with the Charter. Clearly, under the current circumstances, I assign little weight to this argument since in fact the removal officer enforces a decision, examines whether the criteria are met and proceeds in accordance with the appropriate legislation. The constitutional grounds are hardly applicable under the circumstances.
[29] Without going over the entire matter, I do not believe that there is truly a serious issue raised at this stage regarding docket IMM-3175-06. Under the circumstances, these arguments could be assessed by the judge who will determine whether leave may be granted for the judicial review; but as far as I am concerned, I assign little weight to these arguments raised in regard to the failure to comply with the provisions of the Canadian Charter of Rights and Freedoms and more specifically, with regard to the factual framework supporting the arguments of the findings of the other Minister’s officer, namely the PRRA officer, who analyzed the facts and found that there was no serious risk of torture if Mr. Sogi were to be deported to his native country.
[30] The case law informs us that the necessary threshold for determining that there is a serious issue to be tried is not very high.
[31] Assuming for analytical purposes without deciding whether there is a serious issue in docket IMM-2889-06, I will now examine whether there is irreparable harm.
IRREPARABLE HARM
[32] The applicant argued that the minute he sets foot in India, he will be arrested and detained.
[33] It is possible that in fact, as soon as he arrives on Indian soil, he could be arrested and detained, considering his membership in the BKI terrorist group. The applicant’s arrest and detention do not in themselves amount to cruel and unusual punishment. After being considered a danger to national security in England and in Canada for his involvement in an international terrorist network, and given that both countries came to the same conclusion that there was no alternative but to remove him from their territory, it is possible that the person contemplated would be arrested and detained.
[34] However, the analysis and the findings of the PRRA officer are to the effect that the Indian authorities have a mechanism in place which suggests that he could assert his rights normally like other militants who returned to India after several years, and who were the subject of several criminal charges; some were even able to be released on bail.
[35] As I said earlier, the fact that Mr. Sogi could be arrested and detained upon his arrival in India does not amount to cruel and unusual punishment. In fact, it appears rather normal that anyone facing charges or suspicions of a criminal nature or of terrorist activities may have to face criminal charges and appear in court to defend himself. This situation arises every time people are deported from Canada on the grounds of serious criminality in Canada, or when they are wanted to respond to charges of the same kind in their native country and lose their privilege to remain in Canada.
[36] If the Canadian authorities had to keep people on Canadian soil indefinitely based only on the fact that they could possibly be arrested and detained on their arrival in their native country, one might think that Canada would become a haven for criminal foreign nationals, and even terrorists.
[37] The PRRA officer already reviewed the issue of whether the enforcement of the measure would deprive him of life, safety and health, or whether he was in danger of torture or persecution or at risk of cruel and unusual treatment or punishment. The officer determined that the applicant did not face a risk to his life, his safety or his health, nor was he in danger of torture, persecution or at risk of cruel and unusual treatment or punishment. The PRRA officer made this determination after a detailed and in-depth analysis of the applicant’s personal situation and of the situation across India, particularly in Punjab, in light of the risks the applicant Mr. Sogi would himself face if he were to return to India.
[38] With regard to the documentary evidence filed before the PRRA officer as well as before me, it is quite clear that the judge must proceed to review this evidence and, as far as I am concerned, I consider that I need not return to or reexamine in detail all of the evidence that had been submitted previously to the PRRA officer. However, I find it necessary in the particular circumstances of this matter to review all of the documentary evidence that had been filed as well as the new documentary evidence filed by the applicant’s counsel in support of this motion to stay.
[39] As the Minister’s counsel correctly points out, the Indian State adopted several special laws at the beginning of the insurgency in Punjab in the 1980s, which resulted in many human rights violations. Those violations led to much criticism of the Indian authorities by international organizations. However, it is clear that more recently, the situation has improved greatly in India even if there are several pockets of violence inter alia in the regions of Jammu and Kashmir and in some other regions further south. However, the situation in Punjab, where the applicant comes from, has evolved considerably and has improved a great deal since the mid-1990s. The new evidence filed since the decision dated May 11, 2006, cannot in any event lead me to find that the determinations made by the PRRA officer could be considered unreasonable.
[40] In fact, at the risk of repeating myself, I must point out that in a motion to stay, the judge’s role is to examine the determinations made by the PRRA officer to determine whether, in the light of new evidence, I could find that Mr. Sogi could be the victim of cruel or unusual treatment or punishment or torture if he were to return to India, rather than to perform anew the PRRA officer’s specialized task.
[41] The applicant entered Canada illegally using not one, but several false identities during his travels. The Canadian authorities determined that he was a danger to Canada and, once his recourse was exhausted, he was subject to a removal order of which he has been aware for several years.
[42] The fact that he is once again asking for the judicial review of the removal order and the pre-removal risk assessment decision does not automatically give rise to a stay.
[43] The applicant filed an application with the Human Rights Committee of the United Nations on June 11 of this year and filed a letter from the Committee asking the Canadian authorities to suspend the applicant’s removal until the matter could be reviewed by the Court.
[44] The applicant did not, however, file a copy of the application addressed directly to Canada, but rather a letter from the Committee stating that this application had been filed, so that the Court does not have before it the specific application that had been addressed to the Canadian government. The Minister’s counsel nevertheless stated that the application had been received and that it would be reviewed on its merits.
[45] The Minister’s counsel considers that this application does not in any way give rise to an obligation to stay the removal, which must be reviewed in light of Canadian legislation.
[46] I agree with the Minister’s counsel; in any event, this application is not only tardy since it was filed barely five days before this hearing, but also the Committee has no authority before our Court. This step closely resembles a last-minute attempt to buy time.
[47] Recently in Dadar v. Canada (Minister of Citizenship and Immigration), 2006 FC 382, Mr. Dadar filed before the Federal Court a communication to the effect that the United Nations Committee Against Torture (UNCAT) determined that there were substantial grounds to believe that there was a danger of torture if he were deported to Iran. The Committee had therefore asked Canada to follow up and the government of Canada responded quickly, confirming that although Canada takes its international obligations seriously, it nevertheless intended to remove Mr. Dadar to Iran.
[48] Madam Justice Carolyn Layden-Stevenson, in Dadar, supra, referring to Ahani v. Canada (Attorney General) (2002), 58 O.R. (3d) 107 (Ont. C.A.), leave to appeal dismissed, [2002] S.C.C.A. No. 62, decided by the Court of Appeal for Ontario, explained that this decision by a United Nations Committee was not enforceable in Canada.
[49] Later in her decision, the judge explains the role of the Federal Court at paragraph 23:
I have already noted that, as a matter of law, the UNCAT decision is not binding on Canada. As in Ahani, this case demonstrates the proper role of the executive and the proper role of the judiciary. It is not for the judiciary to second guess Canada’s decision not to adopt the UNCAT decision. Rather, it is a matter for a “court of public or international opinion, not for a court of law”.
[50] I have no choice before the submission of this document but to determine not only that it has no legal effect before me, but also that it was filed only a few days before the stay hearing. I note that the applicant could have made this motion even several years ago, as his removal order was four years ago. I find on that basis that it was a last-minute maneuver to buy time and I have no choice but to find that this evidence cannot in any way, as far as I am concerned, lead me to determine that the applicant could suffer irreparable harm if he were deported to India since, in any event, the Human Rights Committee has not made any determination, as it has yet to review the matter in the coming weeks, while at this time the Court has a comprehensive and detailed formal analysis prepared by a Canadian immigration officer responsible for examining individuals’ pre-removal risk assessments.
[51] The judge must examine whether the applicant could suffer irreparable harm if the removal order were to be enforced. The applicant multiplied the recourse in recent years and if the Court had to grant a stay based simply on the fact that the person was requesting a new review of a decision, this attitude would be contrary to the principles and objectives of the law.
[52] I personally examined the documents included in the voluminous documentary evidence filed before the PRRA officer as well as before me and I have no other choice but to find that the applicant failed to persuade me that he could be the victim of torture or of cruel and unusual treatment if he were removed to India.
[53] I find that the applicant has not persuaded me that he would suffer irreparable harm if he were to be removed to India.
BALANCE OF CONVENIENCE
[54] Indeed, I do not hesitate to determine that the balance of convenience clearly favours the respondent since the Minister has the obligation to enforce the removal order as soon as circumstances so permit.
[55] Whereas the applicant has failed to satisfy two of the three elements of the test established in the case law (Toth v. Minister of Employment and Immigration, 1988, 86 N.R. 302 (FCA)), namely that there is irreparable harm and the balance of convenience is in his favour, it will not be necessary to decide whether there is a serious issue to be tried.
[56] Accordingly, the motion to stay will be dismissed.
ORDER
THE COURT ORDERS that:
The motion to stay be dismissed.
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS: IMM-2889-06 and IMM-3175-05
STYLE OF CAUSE: BACHAN SINGH, SOGI
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 16, 2006
REASONS FOR ORDER AND ORDER: BLAIS J.
DATE OF REASONS: June 23, 2006
APPEARANCES:
|
Johanne Doyon
|
FOR THE APPLICANT |
|
François Joyal Ian Demers
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Doyon & Associés Montréal , Quebec Télécopieur: (514) 277-2019
|
FOR THE APPLICANT |
|
John H. Sims, Q.C. Deputy Attorney General of Canada Télécopieur: (514) 496-7876
|
FOR THE RESPONDENT |