The officer deciding on an application of a Refugee must provide an ‘Equivalence Analysis’ coupled with his chain of rational analysis.
The applicant, Mr.Balraj Singh Randhawa had appealed against a decision rendered by an officer of Immigration Division of the Immigration and Refugee Board of Canada. With reliance on paragraph 36 (1) of the Immigration and Refugee Protection Act, SC 2001,c 27 [IRPA] he concluded that Mr. Randhawa had indulged in an activity in India that would be a criminal offence in Canada. The applicant on the other hand refuted all these allegations of murder of Mr. Akash Sen and claimed that he had been falsely accused of murder by the Indian authorities due to political pressure.
The applicant argued that there is no equivalency in Indian Penal Code, 1860 and Canadian Criminal Code, 1985. Furthermore, reasonability of the decision was disputed which a standard of review applicable to a decision in finding a person inadmissible on grounds of serious criminality and to an officer’s determination as per section 36 of the IRPA as an admissibility finding under paragraph 36 (1) c) of the IRPA requires the decision maker to conduct an equivalency analysis between the foreign offence pondered and the equivalent suggested in Canadian Legislation. Furthermore, the applicant had put forward arguments that singled out of the following documents 1) two sworn affidavits from his uncles who attested to political pressure and corruption in the Chandigarh police 2) the newspaper article highlighting many discrepancies between circumstances surrounding the death of Mr. Akash Sen and murder charges surged against Mr. Randhawa 3) the Civil Writ Petition deposited by his mother pleading the High Court to order that investigation of the case be referred to the Central Bureau of Investigation in order to obtain transparency, impartiality and also, independence in the murder’s investigation. 4) His grandfather’s death certificate, whose death Mr. Randhawa claimed was directly linked to his mediatized denunciation of the false accusations pending against Applicant.
The Court declared that unreasonable Charter of the officer’s conclusions on his equivalency analysis is compounded by the finding that the officer failed to address many pieces of evidences singled out by the applicant that directly points out the impugned offences and their essential ingredients. As a consequence, the court gave an affirmative consent for the judicial review for application of the applicant as it was not satisfied by the offer’s equivalency analysis that it was a reasonable outcome. In view of the Court, the officer also failed to provide a chain of rational analysis for his decision and thus, the court ordered applicant’s application must return to Immigration Division for redetermination by a different panel in accordance with Court’s reasons.
In addition to this, the applicant has also made request for a confidentiality order under Rule 151 of the Federal Court Rules, SOR/98-106. However, since the onus is upon the party demanding a confidentiality order to establish a serious risk of harm which will justify a departure from the principle of an open and accessible court, the order was denied by Court as the applicant failed to provide any evidence to support his request in his affidavit or in any other evidence.