Date: 20010613
Docket: IMM-3560-00
Ottawa, Ontario, June 13, 2001
Before: Nadon J.
Between:
JAGJIT SINGH SANDHU
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
The plaintiff's application for judicial review is allowed. The decision by the Refugee Division dated June 14, 2000 is quashed and the matter is referred back to it for a hearing before a different panel.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010613
Docket: IMM-3560-00
Neutral reference: 2001 FCT 653
Between:
JAGJIT SINGH SANDHU
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
NADON J.
[1] The plaintiff is asking the Court to quash a decision by the Refugee Division on June 14, 2000 that he is not a refugee.
[2] The plaintiff, born on November 2, 1971, is a national of India. He claimed refugee status in Canada on account of his membership in a particular social group and the fact that he was alleged to have certain political opinions. He arrived in Canada on November 2, 1999 and claimed refugee status the following day.
[3] The Refugee Division dismissed his claim on the ground that his story was not credible. According to the plaintiff, the Refugee Division made several errors which justify allowing his application for judicial review. I agree.
[4] First, there can be no doubt that the Refugee Division made an error about the date on which the plaintiff's cousin Ginder left the village. At p. 2 of its reasons the Refugee Division said the following:
The claimant alleged that they were arrested because Iqbal Singh was their distant relative. As to why his uncle Chanki and his cousin Ginder who as well were Iqbal Singh's distant relatives were not bothered by the police, he replied that uncle Chanki sent his son Ginder out of the village on September 3, 1995. He added that Ginder visited him, his father and brother after their release from the police station. After more questions, he said that Ginder left on September 11, 1995. He was asked why did he say previously that Ginder left on September 3. He first denied having said that. He repeatedly stated that his cousin left after that date before conceding that he made a mistake. He was asked again why was he arrested along with his brother and father when Chanki and Ginder were not. He offered no comment. The panel does not believe that the claimant is credible.
[5] I am satisfied from reading the transcript that the plaintiff did not contradict himself about the date his cousin Ginder left. This is what the transcript shows:[1]
Q. When did he send him?
A. When they arrested us.
Q. When, sir?
A. 95.
Q. When in 95?
A. Third in the ninth month 95. After that, and release, after we were released, he went away.
Q. After you were released he went away?
A. When they learned that I was arrest, Jagjit, and Jagjit meaning me I was arrested, me and my ... three of us were taken to the police and when we were released, daddy said he has only one son and he sent him out somewhere.
Q. How many days after your release did he send him?
A. I came back on the 5th.
Q. So when did Jinder [sic] leave Nangal?
A. I was sick, he came to inquire about our health. After that, his father made him run away from there.
Q. How many time after that?
A. He had, he sent him to his maternal uncle, and his maternal uncle sent him outside the country.
Q. Sir, I'm asking you how many days after you were released that Jinder [sic] left Nangal?
A. He left on the 11th, 11-09-95, ninth month.
Q. Sir, you previously told me that he left on the 3rd of September. You previously said that he left on the 3rd of September.
A. We were arrested on the 3rd.
- Yes.
A. They caught us on the 3rd.
Q. I know that they arrested you on the 3rd, but you told me before that ... sir, sir, could you let me finish please, and please again do not speak in same time when the interpreter. Sir, let me ask you the question. If you do not agree with what I say, you'll have all the opportunity to say it. You told me that your uncle sent Jinder [sic] on the 3rd of September. Then you told me that he went after you were released. You said he came to visit you when you were treated. And then you told me that he left on September 11th. Do you agree that you told me that, sir?
A. (Inaudible) what I've said, but I don't agree with the 3rd that he left. Jinder [sic] left on the 3rd of September.
BY PRESIDING MEMBER(to interpreter)
- Could you repeat, Mr. Sikka.
A. I don't agree with you that he left on the 3rd of September. But what I have said is correct.
BY PRESIDING MEMBER(to person concerned)
Q. Sir, did you say he left on the 3rd of September?
A. Police caught me on the 3rd of September from my house.
Q. Sir, I know that. Could you answer my question please. Do you deny that you said that Jinder [sic] was sent by his father ..
A. Yes.
Q. ... on the 3rd of September?
A. No, not on the 3rd of September. I am released on the ... I was arrested the 3rd, released on the 5th. He come to inquire about me and he left his house on the 11th.*
[6] When the Refugee Division stated that the plaintiff testified that his cousin Ginder left the village on September 3, 1995, it made an error. The date of September 3, 1995 was indeed mentioned by the plaintiff in his testimony, but that date was given in reply to a question about the date of his arrest. The Refugee Division also made an error when it stated that the plaintiff admitted he was mistaken when he gave September 3, 1995 as the date his cousin Ginder left. The plaintiff made no concession to that effect.
[7] The Refugee Division made another error. This was at p. 3 of its decision, where the Refugee Division said the following:
The claimant alleged that on June 27, 1999, the police arrested him and his father on the accusation of giving food and shelter to militants as revealed to them by a militant who was supposedly a companion of the claimant's brother. The claimant was advised that it is hard to believe that he was arrested for assisting militants in 1999. He was confronted with documentary evidence, which indicates:
"(...) A Political Science professor at the University of Missouri, who specializes on the Sikhs in Punjab, and who returned in mid-June 1998 from a one month trip to Punjab and Haryana (said):
"I have not heard of Sikh militants in 1997 and 1998 forcing local Sikhs in Punjab to provide them with food, shelter, money and transportation. In the past, at the height of the Sikh militant movement, Sikh militants did force the local population in Punjab to provide them with assistance of all sorts, but this is no longer the case as the militant Sikh movement is no longer active.'".
This opinion is also shared by the Executive Director of the South Asia Human Rights Documentation Centre who stated:
"There is little or no credible reports of Sikh families being coerced to give shelter or food to militants since the beginning of 1997. This in the main because the hard core militants have either been physically wiped out or the residual remnants are not in India or are in deep hibernation. There is little support for hard core militancy in Punjab today, hence it is difficult for the remnant militants to enforce their writ by fear or intimidation. The social conditions for coercive enforcement by the militant groups does not exist. There could however, be the isolated case.
The claimant replied that he was telling what happened to him. The panel does not believe that the claimant met his burden of providing a credible testimony in this regard.
[8] As appears from the foregoing passage, the Refugee Division advised the plaintiff in the course of the hearing that it was hard to believe he was arrested for assisting Sikh militants in 1999. In support of that statement the Refugee Division referred to two texts, indicating that Sikh militants had ceased to [TRANSLATION] "force" the public to provide them with food in shelter in 1997 and 1998, as a result of the fact that the militant Sikh movement was no longer active.
[9] As Mr. Le Brun, counsel for the plaintiff, noted the plaintiff nowhere maintained that he and his family were forced to co-operate with the militants. On the contrary, it appeared that the plaintiff and his family co-operated willingly with the militants, who came to their residence through the agency of his brother. Consequently, the two texts cited by the Refugee Division in my opinion have no relevance whatever. In other words, unless the purpose of those texts was to show that no one co-operated willingly with the militants - and in my view that is not the case - they provided no support for the Refugee Division's statement that "it is hard to believe that he was arrested for assisting militants in 1999".
[10] As the disputed decision was based on the plaintiff's lack of credibility, in my opinion these two errors suffice to justify intervention by this Court. Consequently, the Refugee Division's decision will be quashed and the matter referred back to it to be heard before a different panel.
O T T A W A, Ontario
June 13, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-3560-00
STYLE OF CAUSE: JAGJIT SINGH SANDHU v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 4, 2001
REASONS FOR ORDER BY: NADON J.
DATED: June 13, 2001
APPEARANCES:
Michel Le Brun FOR THE PLAINTIFF
Michel Synnott FOR THE DEFENDANT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
[1] Pages 20, 21 and 22 of the transcript of May 31, 2000.
* Errors in original transcript - TR.
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