Date: 20241122
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Docket: IMM-13852-23
Citation: 2024 FC 1865
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Montreal, Quebec, November 22, 2024
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PRESENT: The Honourable Mr. Justice Duchesne |
BETWEEN:
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SEWA SINGH
JASKARAN SINGH
JASMEEN KAUR
SARABJIT KAUR
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Defendant
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JUDGMENT AND REASONS
I. Overview
[1] The Applicants seek judicial review of a Refugee Appeal Division (“RAD”
) decision dated October 16, 2023 (the “Decision”
). The Decision rejected the Applicants’ claims for refugee protection and confirmed the Refugee Protection Division’s (“RPD”
) decision that the Applicants were not Convention refugees pursuant to section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA”
), or persons in need of protection, pursuant to section 97 of the IRPA because an internal flight alternative (“IFA”
) was identified in either Mumbai, Kolkata or Lucknow, India.
[2] The Applicants argue that the Decision was unreasonable because the RAD did not inquire, pursuant to subsection 108(4) of the IRPA, as to whether there were compelling reasons arising out of Mr. Singh’s previous persecution or torture for which the Applicants now refuse to avail themselves of India’s protection. The Applicants’ argument was not submitted to the RPD or to the RAD but was raised for the first time in this proceeding.
[3] The Applicants have not met their burden of establishing that the RAD decision was unreasonable. Accordingly, the application for judicial review is dismissed.
II. The Facts
[4] The Applicants are citizens of India. Before coming to Canada, the Applicants resided in Punjab. There, Mr. Singh, the principal applicant, was a member of and served as president of the Cooperative Agriculture Society (the “Cooperative”
) from 2014–2017. The Cooperative provides financial assistance to farmers.
[5] In 2018, a Mr. Rajesh and Mr. Harjeet (the “new Cooperative leaders”
) were elected president and vice-president of the Cooperative. Mr. Singh eventually accused the new Cooperative leaders of withholding funds destined for the Cooperative’s farmers.
[6] The Punjab police arrested Mr. Singh in late May 2019 and detained him for four (4) days. The police informally accused him of being involved in Sikh militancy and being a terrorist as a result. Mr. Singh’s fingerprints and signature were taken on blank paper. However, he was not brought before either a medical professional or a magistrate during his detention, both of which are usual steps in the ordinary legal process in India. He was not charged with any crime and no First Information Report was filed.
[7] Mr. Singh was released by the police without charges or conditions on May 29, 2019, following the intervention of influential individuals and the payment of a bribe. The police issued no subsequent warrant for his arrest. He was, however, explicitly threatened to keep away from the new Cooperative leaders. Mr. Singh’s evidence is that the police were acting at the behest of the new Cooperative leaders, who did not want Mr. Singh to uncover their corruption at the Cooperative.
[8] The Applicants were issued multiple entry Canadian visitor visas in 2017. They used these visas to travel to Canada in November 2017 and then returned to India. The Applicants used the same visas to travel to Canada again in June 2019, and on July 25, 2019, they filed their claims for refugee protection.
[9] The associate applicants, Sarabjit Kaur, Jaskaran Singh and Jasmeen Kaur, rely on allegations of risk made by Mr. Singh and do not raise any independent allegations of risk should they return to India.
A. The RPD Decision
[10] The RPD issued its decision to refuse the Applicants’ claims on June 16, 2022.
[11] The RPD considered that Mr. Singh was targeted by the new Cooperative leaders due to his attempts to uncover and resolve their corrupt practices. They enlisted the local Punjab police to help them in their efforts.
[12] The RPD noted that Mr. Singh alleged mistreatment by the police during his detention between May 25 and May 29, 2019. The RPD found that Mr. Singh had not established that his arrest and detention were legal, particularly as he was released upon the payment of a bribe and without the filing of a First Information Report or charges.
[13] The RPD determined that the Applicants are neither Convention refugees nor persons in need of protection pursuant to section 96 and subsection 97(1) of the IRPA because they failed to establish a serious possibility of persecution, a danger of torture, a risk to their lives or a risk of cruel and unusual treatment or punishment in India on a balance of probabilities. The RPD found, on the evidence led, that the Applicants are not actually considered as Sikh terrorists by Indian security authorities, and that they had not established the Punjab police’s ability and motivation to pursue them to the proposed IFA locations of Mumbai, Kolkata, or Lucknow.
[14] In determining whether an IFA existed, the RPD applied the two-prong test set out by the Federal Court of Appeal in Rasaratnam v Canada (Minister of Employment and Immigration), 1991 CanLII 13517 (FCA). The RPD found that the Applicants would be safe in the proposed IFA locations. In light of objective country documentation and considering the Applicants’ particular circumstances, the RPD determined that the proposed IFA locations are not unreasonable or unduly harsh for the Applicants. The Applicants did not lead evidence that the proposed IFA locations were not viable.
B. The RAD decision
[15] The RAD dismissed the Applicants’ appeal and confirmed the RPD decision that the Applicants are neither Convention refugees nor persons in need of protection.
[16] The Applicants challenged the RPD findings on both prongs of the IFA test, despite only outlining alleged errors regarding the Applicants’ fear of persecution or likely risk of harm in Mumbai, Kolkata, and Lucknow. The Applicants did not identify any RPD errors in its analysis that it is objectively reasonable for the Applicants to relocate to the IFA locations.
[17] The Applicants argued that the RPD incorrectly concluded that the Punjab police do not have the means or motivation to track them in the proposed IFA locations. The Applicants asserted that the RPD erred:
a)by finding viable IFA locations since the agent of persecution is the state;
b)by concluding that the police acted extra-judicially and did not file charges despite Mr. Singh being accused of Khalistan militancy;
c)by disregarding that terrorism is one of the major crimes for which the police collaborate with police in other states;
d)by failing to appreciate that India’s Crime and Criminal Tracking Network and Systems (“CCTNS”
) contains a variety of information, besides formal documents, that could track the Applicants;
e)by failing to appreciate that the Applicants’ family members have been approached and threatened by the police, and the Applicants’ family should not be expected to withhold information about Mr. Singh’s whereabouts; and
f)by failing to appreciate that the police continue to have an interest in pursuing the Applicants.
[18] The RAD rejected each of the Applicants’ assertions. Following an independent review of the record, the RAD agreed with the RPD’s determination that there is no serious possibility of persecution or likely risk of harm in the proposed IFA locations because the Punjab police do not have the means or the motivation to pursue the Applicants in the IFA locations.
[19] Specifically, the RAD found insufficient evidence that the police actually perceive Mr. Singh to be Sikh militant. The RAD noted, as did the RPD, that Mr. Singh’s own evidence was that the police were simply acting at the behest of the new Cooperative leaders, who did not want Mr. Singh to uncover their corruption at the Cooperative. The RAD also noted that the Punjab police had only informally levelled accusations of Sikh militancy against Mr. Singh. They acknowledged Mr. Singh’s evidence that he had been arrested, that his fingerprints and signatures had been taken on a blank paper, and that he had been “tortured”
by the police while detained. Notwithstanding, Mr. Singh was released a few days after his arrest upon the intervention of influential individuals and the payment of bribe.
[20] The RAD agreed with the RPD that Mr. Singh’s treatment by the Punjab police does not demonstrate that the police perceived him as someone with a profile who supports or advocates for Khalistan, or someone who is a Sikh militant. The RAD reasoned that, if the police truly believed he was a Sikh militant, they would not have released him from custody given the allegedly serious nature of accusations against him. The RAD determined that Mr. Singh’s arrest was extra-judicial and motivated by the new Cooperative leaders’ desire to cover up their own corrupt actions.
[21] The RAD noted that the Applicants had led no evidence that Mr. Rajesh and Mr. Harjeet continue to serve in any role at the Cooperative, that Mr. Singh’s allegations of their corruption continued to be of any interest to the Cooperative or its members given the passage of time, or that either Mr. Rajesh or Mr. Harjeet continue to have influence on the Punjab police sufficient to cause them to target Mr. Singh in the IFA locations.
III. Issues
[22] The Applicants do not seek to have the RAD decision reviewed on the basis of any decisions actually made by the RAD. Rather, the Applicants raise a new argument on judicial review and argue that the RAD erred by not considering that which had not been raised before it.
[23] Specifically, the Applicants argue that the RAD made a reviewable error by failing to consider whether there are compelling reasons for the Applicants to refuse to avail themselves of the protection of India, as contemplated by subsection 108(4) of the IRPA, based on Mr. Singh’s previous torture at the hands of the Punjab police in late May 2019.
IV. Analysis
A. Standard of Review
[24] The applicable standard of review of the RAD decision is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 16, 23 and 25 (“
Vavilov”
). The parties agree on this point.
[25] On a reasonableness review, the reviewing court asks whether the decision under review bears the hallmarks of reasonableness, that is, whether it is justified, transparent and intelligible in relation to the relevant factual and legal constraints that bear on the decision (Vavilov at para 99).
[26] The challenging party bears the burden of establishing that the decision under review is unreasonable because there are “sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency.”
The court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are more than merely superficial or peripheral to the merits. They must be sufficiently central or significant to render the decision unreasonable (Vavilov at paras 100 and 101). A reasonableness review is not a “line-by-line treasure hunt for error”
(Vavilov at para 102). Rather, where “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived,”
the reviewing court will not intervene (Vavilov at para 102).
B. The availability of a new argument on judicial review and subsection 108(4) IRPA
[27] Subsection 108(4) of the IRPA permits the Immigration and Refugee Board to grant refugee status to individuals who previously qualified as a Convention refugee or a person in need of protection, and would continue to qualify, but for the fact that the risk they faced has ceased to exist. Subsection 108(4) does not apply unless the claimant would have once qualified as either a Convention refugee or a person in need of protection: Onyemali v Canada (Citizenship and Immigration), 2022 FC 1191 at para 28 (“Onyemali”
); Castillo Mendoza v Canada (Citizenship and Immigration), 2010 FC 648 at paras 27–28 (“Castillo Mendoza”
).
[28] The Applicants concede that their argument based on subsection 108(4) of the IRPA is new and was not raised before, nor considered by, the RAD. Nevertheless, they submit that it is appropriate for them to raise the argument now because it could not have been raised before the RAD; the requirement to consider compelling reasons pursuant to subsection 108(4) was not engaged until the RAD implied that the Applicants would have qualified as a either Convention refugees or persons in need of protection but for a change in country conditions. Specifically, the Applicants submit that, unlike the RPD, the RAD:
a)clearly implied at paragraph 38 of its decision that the Applicant suffered previous persecution from the Punjab police, because it accepted that the police “even tortured him”
;
b)concluded at paragraph 48 of its decision that Mr. Singh’s agents of harm did have the means to locate him because they could “learn of their IFA location from family members”
; and,
c)accepted that there had been a potential change in country conditions at paragraph 50 of its decision, because it wrote “it has been four years since the Punjab police targeted the Principal Appellant (PA) at the behest of Rajesh and Harjeet [and] the Appellants have not provided any evidence that Rajesh and Harjeet either continue to serve in their elected positions presently or that they continue to serve as members of the Cooperative.”
[29] The Applicants rely on the Supreme Court of Canada’s decision in Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 (CanLII) at paras 22 to 29 (“
Alberta Teachers”
) for the proposition that a new issue may be raised on judicial review when there is an implied decision by the decision-maker on the issue being argued.
[30] The Respondent disagrees. The Respondent argues that this Court has confirmed on several occasions that an applicant’s failure to raise their subsection 108(4) argument in a timely manner in the proper forum can be fatal to their ability to raise the issue on judicial review for the first time (Onyemali at para 27; Ogunjinmi v Canada (Citizenship and Immigration), 2021 FC 109 at paras 15–21 (“Ogunjinmi”
); Ferguson v Canada (Citizenship and Immigration), 2024 FC 447 at para 25 (“Ferguson”
).
[31] I agree with the Respondent that it is not appropriate for the Applicants to make an argument on the basis of subsection 108(4) of the IRPA on judicial review without having raised the issue before the RAD. By proceeding as they have, the Applicants are depriving the Court of the RAD’s views and expertise on the applicability of subsection 108(4) of the IRPA in light of the evidence adduced and the arguments made before it. The Applicants’ failure to raise the subsection 108(4) argument prior to this proceeding is fatal to their ability to raise the argument now (Alberta Teachers at paras 22–25 and the jurisprudence cited therein; Onyemali at para 27; Ogunjinmi at paras 15–21; Abdulmaula v Canada (Citizenship and Immigration), 2017 FC 14 at paras 14–16; Ferguson at para 25).
[32] I disagree with the Applicants that they could not have raised their new argument before the RAD because the RPD did not use the specific word “torture”
in its decision. Subsection 108(4) of the IRPA refers equally to “[…] compelling reasons arising out of previous persecution, torture, treatment or punishment […].”
The RPD decision explicitly discussed Mr. Singh’s “mistreatment”
at the hands of the Punjab police. In response, the Applicants crafted different arguments based on the RPD’s consideration of Mr. Singh’s mistreatment and persecution by the Punjab police before the RAD. For example, in disputing the RPD’s IFA analysis, the Applicants argued that Mr. Singh had been “accused, arrested, persecuted and harassed on the allegations of a major crime […]”
. It was available to the Applicants to present another argument before the RAD on the applicability of subsection 108(4) of the IRPA in light of the mistreatment and persecution considered by the RPD, regardless of whether or not the RPD used the word “torture.”
[33] In any event, the Applicants have not persuaded me that the RAD was obliged to consider the compelling reasons provisions outlined at subsection 108(4) of the IRPA. The RAD referred to Mr. Singh’s evidence and characterisation of his detention and then observed, 12 paragraphs later in its reasons, that the Applicants had failed to lead evidence that the Cooperative leaders who appeared to have engineered his arrest in 2019 continued to have an interest in him or any ability to act against him. These findings were not directed at the Applicants’ loss of refugee status or changes in circumstances under which the Applicants could have obtained refugee status as neither had been found to exist on the evidence.
[34] The RAD’s acceptance of Mr. Singh’s evidence that he had been “tortured”
by the Punjab police between May 25 and 29, 2019, as credible enough to be noted must be considered in the context of the RAD’s reasons as a whole and in connection with the questions before it. This acceptance is not a finding by the RAD that Mr. Singh would have once qualified as either a Convention refugee or a person in need of protection. Proceeding otherwise would be engaging in a “line by line treasure hunt for error”
based on decontextualized key words or concepts at the expense of a proper reasonableness review, the whole contrary to the appropriate approach as set out in Vavilov.
[35] The RAD referred to Mr. Singh’s evidence of being tortured by the Punjab police in the same sentence as it referred to Mr. Singh being released “a few days later after the arrest upon the intervention of influential individuals and payment of bribe.”
Seen in context, the RAD’s description of Mr. Singh’s treatment is one component of their broader finding that Mr. Singh’s arrest, treatment at the hands of the Punjab police, and release occurred in an extra-judicial context that revealed an apparent absence of any official police interest in Mr. Singh and, by extension, in any of the other Applicants.
[36] As previously mentioned, a precondition for a tribunal’s obligation to undertake an assessment of compelling reasons pursuant to the IRPA subsection 108(4) is a finding that the claimant would have once qualified as a either a Convention refugee or a person in need of protection (Onyemali at para 28; Castillo Mendoza at paras 27–28; Krishan v Canada (Citizenship and Immigration), 2018 FC 1203 at paras 76–77). As noted, the RAD’s decision is not based on the Applicants’ loss of refugee status and does not recognize circumstances that have now disappeared and under which the Applicants could have obtained refugee status.
[37] As the first of the preconditions for a compelling reasons assessment pursuant to subsection 108(4) of the IRPA was never established nor implied in this case, no such assessment was required by the RAD.
[38] The Applicants have not persuaded the Court that the RAD’s failure to conduct a compelling reasons assessment pursuant to subsection 108(4) of the IRPA was unreasonable or renders the Decision unreasonable as a result.
V. Conclusion
[39] The Applicants have not persuaded the Court that the RAD’s decision was unreasonable. This application for judicial review is dismissed.
[40] No question for certification was presented or argued by the parties.
JUDGMENT IN IMM-13852-23:
THIS COURT’S JUDGMENT is that:
This Application for judicial review is dismissed.
There is no question for certification.
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“Benoit M. Duchesne” |
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Judge |
FEDERAL COURT
FEDERAL COURT
SOLICITORS OF RECORD
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