GIAN SINGH Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2023 FC 127

Date: 20230127 Docket: IMM-687-23 Citation: 2023 FC 127 Toronto, Ontario, January 27, 2023 PRESENT: Madam Justice Go BETWEEN:GIAN SINGHApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent ORDER AND REASONS [1] Mr. Gian Singh [Applicant] seeks a stay of removal to India scheduled for January 30, 2023.

The motion for stay is brought asinterlocutory relief to an Application for Leave and for Judicial Review [ALJR] of a decision dated January 6, 2023 rejecting theApplicant’s Pre-Removal Risk Assessment [PRRA] Application [Decision]. [2] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am granting theApplicant’s motion for a stay of his removal. I. Context [3] The Applicant, aged 63, arrived in Canada in 2009 with his wife and their minor son. They are citizens of India.

The Applicant andhis wife are Sikhs who grew up as farmers in Punjab, India. [4] At some point after coming to Canada, the Applicant and his wife obtained and worked on work permits. They filed an applicationfor permanent resident on humanitarian and compassionate grounds in 2016, which was refused in January 2017. [5] The Applicant and his wife claimed refugee status in 2018. Their claim was denied by the Refugee Protection Division [RPD] inOctober 2019.

Their appeal to the Refugee Appeal Division [RAD] was dismissed in November 2020, and a subsequent application forleave for judicial review was denied. [6] The Applicant and his wife were initially scheduled for removal for August 31, 2022.

After bringing a leave application to this courtto judicially review a Canada Border Services Agency [CBSA] officer’s refusal to defer their removal, their deferral request was sentback for redetermination by a different removal officer with the CBSA. [7] The Applicant and his wife were served with a Notification of PRRA on or about October 25, 2022, and they submitted their PRRAapplication with submissions through counsel by a letter dated December 6, 2022. [8] The Applicant’s PRRA was based on their participation since 2020 in rallies and other activities organized by the Sikh community inCalgary to protest against the laws in India that are perceived by that community as anti-farmer.

These laws – called “Black laws” bytheir critics – were passed by the Government of India in or around July 20020. In December 2020, the Applicant and his wife alsojoined the Sikhs for Justice Referendum 2020 [Referendum] organized by Sikhs for Justice [SFJ], calling for an independent andseparate nation of Khalistan. The Referendum took place in various cities across the globe, including in Canada. [9] SFJ was banned on July 10, 2019 by the Government of India under the Unlawful Activities (Prevention) Act [UAPA] for anti-Indiaactivities.

The general counsel of SFJ, based in New York, is also facing charges by the Indian Government. [10] On January 11, 2023, the Applicant and his wife were notified by the CBSA at an interview that their PRRA applications weredenied.

The CBSA removal officer provided the Applicant with a removal letter at the same interview. [11] The PRRA officer [Officer] concluded that the Applicant will face less than a mere possibility of persecution should he return toIndia and that he will be unlikely to face a risk to life, a risk of torture, or a risk of cruel and unusual treatment or punishment if removedto India, based on the evidence adduced. II.

Issues and Legal Test for Obtaining a Stay [12] The only issue is whether a stay of removal should be granted in these circumstances. [13] In order to obtain a stay, the Applicant must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba(Attorney General) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110 [Manitoba], RJR-MacDonald v Canada(Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald], and R v Canadian Broadcasting Corp, 2018 SCC 5,which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment and Immigration) (1988),

(FCA) , 86 NR 302, 11 ACWS (3d) 440 (FCA). [ 14 ] A stay of removal is warranted only if all three elements of the test are satisfied, namely: (

i) the underlying application for judicial review raises a serious issue; (ii) the moving party will suffer irreparable harm if the stay is not granted and the removal order is executed; and (iii) the balance of convenience favours the granting of the order. [ 15 ] The application of this test is highly contextual and fact-dependent. As the Supreme Court of Canada explained, " “[u]ltimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case”: " Google Inc v Equustek Solutions Inc , 2017 SCC 34 at para 1 . III. Analysis A.

Serious Issue [ 16 ] The Applicant submits that the PRRA Officer erred by ignoring pertinent new evidence with respect to the Applicant’s activities supporting the SFJ in Canada since the RAD’s refusal, which raised a sur place claim. As such, the Applicant argues that the Decision was unreasonable. [ 17 ] The Respondent submits that the Officer did not err by disregarding the evidentiary submissions on the Applicant’s PRRA application, and did not place an excessive focus on the RPD and RAD decisions.

Rather, the Respondent argues the Officer understood that the risks were not the same and the Decision displayed a reasonable analysis of the new evidence. [ 18 ] I disagree with the Respondent. [ 19 ] The Applicant made extensive submissions in his PRRA application, supported by documentary evidence, photos, his statement, his voting card for the Referendum, and more, about his activities. The Applicant stated in his PRRA application that he fears harm in India as a Sikh by religion and by appearance, and because of his advocacy against the Black Laws and support for SFJ and the Referendum.

In the Decision, the Officer stated: I combine my assessment of the evidence before me with the record of the RPD and RAD findings, both of which were of the opinion that the basis of claim was not credible. Those decisions form the basis of my

interpretation of the timeline of events and assessment of the evidence before me. [ 20 ] Given that the RPD and RAD decisions pre-dated much of the Applicant’s activism in Canada, which he relied on in his PRRA application, I agree that the Officer’s reliance on these prior decisions gives rise to a serious issue. [ 21 ] I also find that the Officer did not consider whether the Applicant’s activities raised a sur place claim based on allegations of persecution of those similarly situated to him in India, in light of the Applicant’s statement that he would continue with his activities in support of Khalistan upon his return to India.

The Officer found insufficient evidence that the Applicant has become known by authorities or that he is a member of SFJ. However, the Officer did not consider whether the Applicant’s continuing activities in India would give rise to forward-looking risks. [ 22 ] I note that the Respondent makes no submission with respect to the Applicant’s argument on his sur place claim. Instead, the Respondent submits that the Officer did not disregard the evidence of serious concerns about law enforcement in India, the identification of terrorists, and corruption in government and location police stations.

The Respondent further argues that the Officer did not err by relying on the objective documentary evidence indicating that punishments for abuses committed by law enforcement authorities were not uncommon and that there were legal repercussions when security agents and government officials engaged in illegal activity. [ 23 ] With respect, the Applicant’s PRRA application is not about allegations of corruption in the government and law enforcement in India.

Rather, it is based primarily on his Sikh identity and his activism in support of Khalistan, and the Government of India’s treatment of people who are similarly situated.

In this regard, the Officer found: The evidence does not show that Indian authorities are concerned with Sikhism in or itself, but rather individuals who associate with possible criminal activity. [ 24 ] This conclusion appears to be contradicted by the country condition evidence suggesting that the Government of India has used the UAPA to crack down on dissent, and has detained individuals, including youths, for merely expressing support for Khalistan.

The same evidence appears to support the Applicant’s claim that he would face risk of harm in light of his activities in Canada, and his continuation of these activities should he be removed to India. In view of the evidence, the Officer’s contrary finding constitutes another serious issue. [ 25 ] As such, I find there are serious issues based on the Officer’s failure to consider the Applicant’s sur place claim and the Officer’s reliance on the previous RPD and RAD decisions in their findings. B.

Irreparable Harm [ 26 ] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm, which is to be examined: RJR-MacDonald at para 64 . In the context of a stay of removal, the harm usually relates to the risk to the individual(

s) of harm upon removal from Canada. It may also include specific harm that is demonstrated in regard to any persons directly affected by the removal, and who will be remaining in Canada: see Tesoro v Canada (Minister of Citizenship and Immigration) , 2005 FCA 148 at para 28 .

[27] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Citizenshipand Immigration), 2004 FCA 427 at paras 14-15.

However, the test for irreparable harm is also not one of absolute certainty: Suresh vCanada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (CA) at para 12. [28] Irreparable harm may arise from a risk to life, liberty, or safety that the individual would be exposed to if removed to their country oforigin: Begashaw v Canada (Minister of Citizenship and Immigration), 2009 FC 462 at para 54, citing Sivakumar v Canada (Minister ofEmployment and Immigration), (FCA), [1996] 2 FC 872 (CA); Hernandez v Canada (Solicitor General), [1993] FCJNo 950 (TD); Membreno-Garcia v Canada (Minister of Employment and Immigration), (FC), [1992] 3 FC 306 (TD);Suresh v R, (ON SC), [1998] OJ No 296, 49 CRR (2d) 131. [29] In the context of this case, there is considerable overlap between the evidence and arguments with respect to serious issues and thoserelating to irreparable harm. [30] As noted above, the Applicant included in his PRRA application evidence of his involvement in and support for SFJ and theReferendum.

The Applicant also stated that he would continue with these activities upon his return to India.

I note that the Officer did notmake any negative credibility findings with respect to the Applicant’s stated activities, even though the Officer doubted that theApplicant has come to the attention of the Indian authorities notwithstanding the letters submitted by the Applicant’s families andassociates. [31] At the hearing, the Respondent pointed to inconsistencies in the spelling of the name of an individual who provided an affidavit forthe PRRA application, and urged the Court not to consider the Applicant’s “false statement” that he would face irreparable harm.

I note,first of all, that the Officer never made a negative credibility findings against the Applicant. Indeed, had the Officer done so, the Officerprobably should have held an oral hearing for the PRRA application. [32] I agree that photos of the Applicant’s activities in Canada alone would be insufficient to establish harm.

However, in this case, theApplicant has also made a sur place claim, on the basis that he would continue with his pro-Khalistan activities in India. [33] In addition to evidence of his own activities in Canada, the Applicant provided substantial objective evidence of measures taken bythe Government of India to suppress individuals who promote similar causes advocated by the Applicant.

In addition to banning SFJ anddetaining individuals using the UAPA, the Government of India has also banned sites related to SFJ, labelled the Referendum as “anti-India”, and rebuked the Canadian Government for allowing the Referendum to take place on Canadian soil.

More to the point, theobjective evidence submitted by the Applicant suggests that individuals involved in pro-Khalistan activities have been harassed, arrestedand charged, and some have been detained without charge, by the Government of India. [34] I disagree with the Respondent that these risks are speculative in light of the evidence of the Applicant’s involvement and theobjective country condition evidence.

I disagree that the Applicant needs to produce a warrant for his arrest to satisfy this part of thetripartite test. [35] In light of the overlap between the first two prongs of the tripartite test, I also find that the potential mootness of the underlyingapplication for judicial review amounts to irreparable harm: Matthew v Canada (Minister of Citizenship and Immigration), 2022 FC 924at paras 21-22. [36] In conclusion, I find the Applicant has met the second prong of the tripartite test. C.

Balance of Convenience [37] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the publicinterest to be weighed together with the interests of private litigants: Manitoba at paras 34, 38. [38] I acknowledge that there is public interest in the enforcement of laws that have been enacted by democratically-elected legislaturesand passed for the common good.

However, I disagree with the Respondent that the Court should assume that “irreparable harm” to thepublic interest would result from the restraint of a statutorily authorized action to effect removal in any given case. [39] Balancing all of these factors, I find that the harm of removing the Applicant at this point is greater than the harm caused bydelaying the removal until the underlying ALJR is resolved. [40] On a final note, I see that the removal of the Applicant’s wife is awaiting execution as CBSA works on obtaining a valid passport forher.

I would hope that given my order to stay the Applicant’s removal, CBSA would pause the removal of the Applicant’s wife, until herunderlying ALJR is dealt with. ORDER in IMM-687-23 THIS COURT ORDERS that the application for a stay of removal pending the determination of the Applicant’s application forjudicial review is granted. "Avvy Yao-Yao Go" Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-687-23 STYLE OF CAUSE: GIAN SINGH v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: January 27, 2023 REASONS FOR ORDER AND ORDER: GO J. DATED: January 27, 2023 APPEARANCES : Birjinder P. S. Mangat For The Applicant Camille N. Audain For The Respondent SOLICITORS OF RECORD : Birjinder P. S. Mangat Mangat Law Office Calgary, Alberta For The Applicant Attorney General of Canada Calgary, Alberta For The Respondent