IMM-75-95
BETWEEN:
GURMEET SINGH
AND JASWANT NARANG
Applicants
-
and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT
RICHARD J.:
This is an application for judicial
review of a decision of the Convention Refugee Determination Division (Refugee
Division) of the Immigration and Refugee Board on December 19, 1994, which
found the applicants not to be Convention refugees. The applicants, husband
and wife, are citizens of India and claim persecution by reason of their
religion (Sikh), political opinion and membership in a particular social
group. The female applicant's claim relies entirely upon her husband's claim.
They arrived in Canada in 1989 and made their refugee claim in 1991. The
Refugee Division's first decision with respect to the applicants' claims was
quashed by this Court on October 8, 1993, and remitted to the tribunal for
reconsideration. The basis for the Court's decision was an
agreement by both parties that the tribunal erred in its assessment of an
internal flight alternative and a determination by the Court that the
tribunal's assessment of the male applicant's credibility was not properly
based on the evidence before it.
The applicants lived in the city of
Karnal, in the province of Haryana. The male applicant owned an oil and flour
mill and operated two trucks. He was also a member of the Sikh temple Mainji
Sahib Gurdwara and participated in citywide hymn singing tours (nagar kirtan).
In his PIF and his testimony before the tribunal, the male applicant recounted
a series of incidents which occurred between 1983 and 1987 and which included a
riot surrounding a nagar kirtan, a beating and vandalism of his home allegedly
by members of the Jansang party, a boycott of his mill by Hindus, harassment
from the trucking union and the police culminating in an arrest and beating by
the police, and an attack and beating by members of the Hindu militant group
Shiv Sena. Following the murder of the Prime Minister in October 1984, the
applicants fled to a remote village. Upon their return, the male applicant
discovered that his mill had been vandalised and attempted to sell it. A
prospective purchaser was threatened by the Shiv Sena and he was forced to
return the deposit. The male applicant was arrested and beaten by the police
after someone fired some shots in a village outside Karnal. He was again
arrested, beaten and detained for twelve days after someone fired shots and
killed a local politician. Soon after his release, the applicants fled Karnal,
travelling throughout India before coming to Canada.
The Refugee Division accepted that
the male applicant's testimony was generally credible. However, they concluded
that the applicant did not have a well-founded fear of persecution, in part,
for the following reasons:
We
accept that the claimant was exposed to difficult experiences as a member of
the Sikh Temple committee during 1984, a time of turmoil, harassment and
persecution of Sikhs after the assassination of Indira Gandhi. The panel finds
that mainly because of the claimant's position as a member of a Sikh temple,
which was under the jurisdiction of the Golden Temple, he was subjected to
arrest, interrogation, destruction of his personal property, and coercion from
Hindu groups such as the Shiv Sena which were located at a close distance from
this Sikh Temple.
.
. . . .
In the
panel's opinion, the claimant suffered harassment because of his participation
in the organization of Sikh religious festivals in 1984 as a member of the Sikh
Temple committee. He was not prevented from practicing his religion. Other
incidents of Hindu reprisals related by the claimant resulted from violent
actions carried out by Sikhs.
.
. . . .
Considering
the circumstances of his arrests and the events surrounding the death of Mrs.
Gandhi at the hands of Sikh terrorists, the police action was one of trying to
cope with the violence of riots and reprisals between Sikhs and Hindus. As a
result of this, the claimant was detained for 12 days without any judicial
process and was released upon the payment of a 12, 000 rupee bribe. The panel
does not find the actions against the claimant, even in a cumulative effect,
amount to persecution.
In my view, the tribunal's finding
that the applicant did not have a well-founded fear of persecution because the
actions against him in 1984 did not amount to past persecution is patently
unreasonable. It is clear from the Court of Appeal's
decision in Thirunavukkarasu v. Canada (Minister of Employment and
Immigration) that arbitrary arrest and detention, as well as beatings and
torture, by public authorities can never be condoned no matter what the
rationale. The tribunal erred when it failed to deal
with the male applicant's beatings by the police and by concluding that his
experiences at their hands did not amount to persecution.
In addition to the tribunal's
erroneous finding regarding past persecution, the applicants argue that the
tribunal committed a reviewable error by failing to consider the application of
subsection 2(3) of the Immigration Act and the medical report. At the
outset of the hearing before the tribunal, counsel for the applicants indicated
that he wished the tribunal to consider the applicability of subsection 2(3) of
the Immigration Act and filed a report prepared by Dr. Pilowsky. In its
reasons for decision, the tribunal neither considered the applicability of
subsection 2(3) nor the psychological report. Counsel for the respondent
submitted that there was no obligation upon the tribunal to consider subsection
2(3) because of its finding regarding past persecution and because there was no
finding regarding changes in country circumstances.
In my view, in addition to the error
regarding past persecution, the tribunal committed a number of errors which
warrant the intervention of this Court. The first of these is the tribunal's
failure to consider the application of subsection 2(3). Generally, subsection
2(3) applies only to situations involving a determination of changes in
circumstances. The definition in subsection 2(1)
provides that a person is a Convention refugee if the applicant is outside the
country of nationality or former habitual residence by reason of a well-founded
fear of persecution for one of the enumerated grounds and is unable or
unwilling to avail themself of the protection of that country. The basis for a
finding of an IFA is a recognition that while an applicant may have a
well-founded fear in one part of the country of origin, the applicant does not
have a well-founded fear throughout that country. As such, the applicant whose
claim is rejected solely on the basis of an IFA is not and never could have
been a Convention refugee as defined in subsection 2(1). Since the applicant could
not have been a Convention refugee, the applicant cannot cease to be a
Convention refugee within the meaning of paragraph 2(2)(e) and, therefore,
subsection 2(3) would not apply. A determination based on changes in country
circumstances, however, involves a recognition that the applicant might at one
time have been a Convention refugee, but is no longer, or has ceased to be, a
Convention refugee because the conditions in the country have changed to such
an extent as to eliminate the source of the applicant's fear.
In this instance, it is clear that
the tribunal based its decision, in part, upon a finding of an IFA outside the
Punjab or Haryana. However, their determination also involved a recognition
that circumstances had changed since 1984, when ethnic tensions were at their
peak after the assassination of Mrs. Gandhi, and that the applicants remained
in India until 1989 without any problems. In view of these findings, it is my
opinion that the tribunal erred by failing to consider the application of
subsection 2(3) to the applicants' case. While I would agree that the Refugee
Division may not have an obligation to consider every argument raised before it
by an applicant, its failure to consider whether subsection 2(3) applies in
this instance is fatal to its decision because it compounds the error
previously made by the tribunal. Further, counsel for the applicants
explicitly raised the issue at the beginning of the hearing before the tribunal
and filed a medical report in support of its claim. In its decision, the
tribunal failed to make any mention of either the medical report or subsection
2(3). While subsection 2(3) might not have applied in the circumstances of
this case, it is not for the Court to speculate as to why the tribunal believed
that subsection 2(3) did not apply and the failure of the tribunal to consider
the issue in its reasons amounts to a reviewable error.
The tribunal also committed an error
by failing to have regard to the psychological report in a more general sense.
This evidence appears to have been reliable and directly relevant to the
applicants' claims. In some instances such a report will support a credibility
determination and in others a determination pursuant to subsection 2(3). In my
view, it is also a relevant factor for determining whether an IFA is reasonable
in the particular circumstances of the applicants. I have arrived at this
conclusion, in part because of my view above that a finding of an IFA may
preclude an applicant from the protection afforded in subsection 2(3). The
rationale behind subsection 2(3) is a recognition that additional protection
ought to be provided to "those who have suffered such appalling
persecution that their experience alone is a compelling reason not to return
them, even though they may no longer have any reason to fear further
persecution." In Thirunavukkarasu, the Court of
Appeal determined that an IFA must be sought only if it is objectively
reasonable to do so in the circumstances of the individual applicant. The Court went on to
elaborate on the nature of the question to before the tribunal and stated as
follows:
Rather,
the question is whether, given the persecution in the claimant's part of the
country, it is objectively reasonable to expect him or her to seek safety in a
different part of that country before seeking a haven in Canada or elsewhere.
Stated another way for clarity, the question to be answered is, would it be
unduly harsh to expect this person, who is being persecuted in one part of the
country, to move to another less hostile part of the country before seeking
refugee status abroad?
Thus, a psychological or medical report may
provide objective evidence that it would be "unduly harsh" to expect
the applicants who have been persecuted in the past in one part of the country
to move to a less hostile part of the country. One can expect that like the
application of subsection 2(3) such evidence will only "apply to a tiny
minority of present day claimants."
For these reasons, the application
for judicial review is allowed and the matter is remitted to the Refugee
Division for reconsideration in accordance with these reasons on the basis of
the record presently before this Court and any additional evidence the tribunal
or counsel may require.
__________________________
Judge
Ottawa, Ontario
July 4, 1995
IMM-75-95
OTTAWA, ONTARIO, THE 4TH DAY OF JULY, 1995
PRESENT: THE HONOURABLE MR. JUSTICE RICHARD
BETWEEN :
GURMEET SINGH
AND JASWANT NARANG
Applicants
-
and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT
UPON an application for judicial
review of a decision of the Convention Refugee Determination Division of the
Immigration and Refugee Board ("Refugee Division"), dated December
19, 1994, wherein the Refugee Division determined that the applicant was not a
Convention refugee.
IT IS HEREBY ORDERED THAT:
The application for judicial review
be allowed and the matter be remitted to the Refugee Division for
reconsideration in accordance with my reasons on the basis of the record
presently before this Court and any additional evidence the tribunal or counsel
may require.
__________________________
Judge
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