Matharu v. Canada (Minister of citizenship and immigration), 2002 FCT 19

                                                                                                                                        DATE: 20020109

                                                                                                                   Court File No.: IMM-868-00

                                                                                                                Neutral Citation: 2002 FCT 19

Ottawa, Ontario, this 9^th day of January, 2002

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

                                                    MANINDER SINGH MATHARU

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review by an applicant who does not think that the Convention Refugee Determination Division had reason to disbelieve his story. Maninder Singh Matharu is a refugee claimant from India who claims a well founded fear of persecution from the Indian authorities based upon his imputed political beliefs.

[2]                 The Convention Refugee Determination Division's (CRDD) reasons report that the applicant helped his father run a service station in an area which was a theatre of operations for Sikh terrorists. Both the police and the terrorists bought gas from the applicant's father though the terrorists would

not pay for their purchases. They would let their weapons be seen and would drive away without paying. The family lawyer, an individual known as Kamokee, was a senior leader of the All India Sikh Student Federation who was arrested and died in police custody. Several months later, in June 1995, the applicant's father was arrested. The applicant reported that his father may have been identified as a terrorist sympathizer by Kamokee under the pressure of torture but there is no proof of this. This was followed, three days later, by a raid of the family home and service station, in the course of which the applicant was arrested, assaulted and detained for four days.

[3]                 In June 1995, the applicant's wife obtained a franchise to operate a Public Call Office and Satellite Transmission Direct (PCO-STD) office. This is a public telephone service where individuals who do not have a private line can make or receive a telephone call for a fee.

[4]                 In January 1996, the applicant's father's body was found in a ditch in circumstances where the police alleged that he had been struck by a truck attempting to cross a major road.

[5]                 The service station was leased to someone else and the applicant worked at the PCO-STD. In March 1998, the applicant's house and the PCO-STD office were raided and the applicant's wife and an employee were arrested. They were detained for seven days on the allegation that they had allowed terrorists to use the PCO-STD to communicate with other terrorists in Pakistan. The applicant's father-in-law advised him to hide so the applicant went to Delhi on April 1, 1998. After her release, the applicant's wife continued to be harassed by the police until she decided to give up the PCO-STD office. The family then decided that it would be best for the applicant to come to

Canada as a result of which he left India on August 28, 1998.

[6]                 The CRDD did not believe any element of the applicant's story. They doubted that terrorists would allow their weapons to be seen in broad daylight in a place the police were known to frequent and in circumstances when anti-terrorist operations were underway. The CRDD also put into question the reason for the applicant's father's arrest on the ground that it was speculation that the family lawyer had named him as a sympathizer.

[7]                 The CRDD also had questions about the fact that the applicant's wife was allowed to continue running the PCO-STD office even though they suspected that the applicant was a terrorist sympathizer. Since the PCO-STD office is a government franchise, the CRDD asked the applicant to explain why the franchise would not have been terminated once they were suspected of being in league with the terrorists. The applicant replied that he thought that the police wanted to use them to keep track of calls made by terrorists to see who they were talking to. However, the CRDD reported that no records were kept of calls made so that the applicant's explanation did not stand up to scrutiny.

[8]                 The CRDD also noted that at one point the applicant commented that the local youth heard inflammatory speeches at a local centre but later said that he never attended at the centre. How could he know what was said if he never attended? The CRDD found this to be another instance of lack of credibility.

[9]                 As for the applicant's father's death, the CRDD's reasons suggest that they took exception to the applicant's version of events but the object of their objection is not clear. It appears to be whether the applicant's father was killed on the Grand Trunk road or elsewhere.

[10]            The applicant challenges the CRDD's conclusions with respect to the Sikh terrorists displaying their weapons. He disputes that the terrorists allowed their weapons to be seen in broad daylight. In his memorandum of argument he says that he and his father could see them only because they had to approach the vehicle. He says that the CRDD's finding of lack of credibility on this issue is made on an arbitrary and capricious basis.

[11]            The applicant also challenges the CRDD's rejection of the applicant's view that his father was identified by the family lawyer. He faults the CRDD for not investigating the possible ways in which this information could have come to the applicant's family's attention. This too is said to be a credibility finding made on an arbitrary and capricious basis.

[12]            The applicant argues that the CRDD's rejection of his explanation for the continued operation of the PCO-STD office is also arbitrary and capricious. The applicant's counsel says that the very reason the terrorists would have used their office was the fact that no records were kept. "They are far too smart to make telephone connections with other militants from a place where the possibilities of records are kept." The applicant feels that his explanation should not have been discredited.

[13]            The applicant says there is no inconsistency between his never having attended at the local centre and knowing what was said there. The contents of the speeches was a matter of public knowledge so that one did not have to attend to know what was being said.

[14]            The applicant objects to the CRDD's treatment of his father's death. Given that he was arrested by the police and never seen alive again, the applicant believes that the CRDD had no basis to question his conclusion that his father died in police custody.

[15]            The respondent takes the position that the CRDD was justified in law and on the facts in coming to the conclusions which it did. The onus is always on the applicant to satisfy the CRDD of the merit of his claim. It is not for the CRDD to do further investigation to find support for the applicant's claim. It is for the applicant to put his case before the CRDD.

[16]            While for the most part, the applicant's complaints are unfounded, there are two issues where the CRDD's treatment of the applicant's claim is questionable.

[17]            The first is in relation to the PCO-STD office. The CRDD queried why the government would give the applicant a PCO-STD franchise when they considered him a militant. The applicant's answer was that the PCO-STD franchise was a central government initiative whereas police were state police. The discussion then turned to why the police suspected him of allowing two known militants to use the PCO-STD to contact other militants. This lead to a discussion of the kinds of records kept of calls made from the PCO-STD office. The CRDD reported that "Calls were not recorded and nobody seems to have known where the calls were made to." And later in the decision, this appears:

Strict records were not kept of outgoing calls because there were simply too many.    And anyway, a lot of Indians had relatives in Pakistan. In other words there was no way of knowing whether militants from Punjab were in touch with militants in Pakistan. This completely discredits the claimant's statement that the police allowed the business to continue in the hope of discovering links between Punjabi and Pakistani terrorists.

[18]            The CRDD struggled with the applicant's evidence on this point, perhaps because he began by saying that there were no telephone records but, in the main, his evidence was to the effect that his local computer would keep a record of 150 calls, which would be printed out, and then those records would be erased and another 150 calls would be recorded. The applicant said that he did not keep the printed record of the calls, even though they would permit him to calculate the commission which he was owed. The central computer kept a continuous record of all calls from which the commission was calculated. Furthermore the applicant knew that he was to report calls made to Pakistan from his facility but he chose not to. "Yes, I, myself was sitting there. I was taking the money, and I did not consider to increase the botheration upon me."

[19]            However, the applicant never argued that the PCO-STD office was kept open because the police wanted information about who terrorists were calling. That suggestion arose for the first time in the submissions of his counsel:

Now on the issue of the STD and why didn't the police close it down, etc., number 1, the police were probably using it, investigating, probably checking phone calls. If they close it down, they lose that source.

                                                                                                                                                                                     Tribunal Record p. 430                                  

[20]            The CRDD's rejection of the "applicant's" story on this issue is wrong because, firstly, it was not the applicant's version, it was a gratuitous suggestion by the applicant's counsel. Secondly, it had nothing to do with the basis of the applicant's claim. He said he and his wife were harassed because the police believed that he was allowing two militants to make calls. Nothing in the discussion about telephone records deals with that issue.

[21]            The second issue which requires consideration is the question of the death of the applicant's father. The CRDD said this about this issue:

The claimant's father could very well have been killed but it is not unreasonable to assume that his untimely death could well have happened while he was attempting to cross the GT road.

[22]            The applicant's evidence was that his father was arrested in June of 1995 and that his body was found in a ditch (Tribunal Record p. 20) on January 27, 1996. The only evidence before the CRDD was that he was in police custody the entire time. In his Personal Information Form, the applicant said that the police claimed that his father ran away but that they had been following him when he was killed by a fast moving truck when he tried to cross the road. One wonders why the body was found in a ditch if the police were on the scene when the "accident" occurred.

[23]            In this context, the CRDD's comments about the reasonableness of the death having occurred on the GT (Grand Trunk) road are puzzling. If the CRDD are saying that they do not believe that the applicant's father was killed by the police, then the reference to his untimely death is curious. If they do believe that he was killed by the police, then the fact of the death occurring on the road as

opposed to in a cell is surely a secondary point.

[24]            This is tied to the CRDD's rejection of the applicant's explanation for why his father fell under suspicion. The applicant said that his father had been arrested because he had relations with a lawyer who was a senior leader of the All India Sikh Student Federation. When pressed as to why this would lead to his father's arrest, the applicant said that he had heard that the lawyer may have denounced his father under pressure of torture.

[25]            The CRDD rejected this as speculation, but when the CRDD asked the applicant why the police did something, they were inviting speculation. They should not have been surprised when it was given to them. What the police said, according the applicant's Personal Information Form, is that they suspected that the militants were leaving their money and arms with the applicant and his father. This is why they arrested them both and searched the home and business premises. (Tribunal Record p. 19).

[26]            The question of the father's involvement with the militants and his unhappy fate were central elements in the applicant's claim. The applicant claimed that the police thought that he and his father were in league with the militants. Why the police thought so can only have been a matter of speculation unless the police disclosed their reason for suspicion. In his Personal Information Form, the applicant related what the police thought they had done. It was unfair of the CRDD to reject all of this because they found the applicant's speculation unacceptable.

[27]            The other reasons the CRDD identified for rejecting the applicant's claim were the result of inconsistencies or improbabilities in the applicant's testimony. He did say that the terrorists carried their weapons openly. He did profess to know what occurred at meetings which he said he did not attend. There can be little criticism of the CRDD's treatment of that evidence.

[28]            The standard of review for questions of fact is defined by statute, specifically subsection 18.1(4)(d) which provides as follows:

(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:

d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;

[29]            Whether a decision made in a "perverse or capricious manner or without regard to the material before it" is merely unreasonable or is patently unreasonable may be a distinction without a difference. Unlike the "jurisdictional" questions where a judge made standard of review applies, on the question of error of fact, there is a legislated standard of review. It may be useful for purposes of comparison to liken it the standard of reasonableness simpliciter or patent unreasonableness but this does not change the standard. It may be that a finding of fact which is perverse or capricious is "clearly wrong" which would approximate the standard of reasonableness simpliciter (see Canada (Director of Investigation and Research, Competition Act) v. Southam    [1997] 1 S.C.R. 748 at para. 60). In the end result, however, the question should be whether the particular finding is "perverse or capricious, or made without regard to the material before it."

[30]            In this case, I am satisfied that the CRDD's conclusions on two major elements of the applicant's claim were made without regard to the material before it. In the case of the PCO-STD office, the CRDD rejected a theory which was speculation on counsel's part and had not been advanced by the applicant. In the case of the applicant's father's involvement with the police, the CRDD could not invite the applicant to speculate as to why the police acted as they did, and then dismiss his answer as speculative. The applicant told the CRDD what he and his father were suspected of doing. In the absence of some communication from the police, why they were suspected of doing it can only be a matter of speculation.

[31]            For these reasons, the decision of the CRDD will be set aside and the matter remitted for redetermination by a differently constituted panel.

[32]            The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.

                                                                            ORDER

THIS COURT ORDERS that:

1.         For the reasons set out above, the decision of the CRDD is set aside and the matter remitted for redetermination by a differently constituted panel of the Convention Refugee Determination Division.

                                                                                                                                     "J.D. Denis Pelletier"             

                                                                                                                                                               Judge