Date: 19990819
Docket: IMM-6076-98
BETWEEN:
SUKHPAL SINGH
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division ("CRDD"), wherein it was determined that the Applicant is not a refugee pursuant to the Convention.
[2] The Applicant is a citizen of India. He is a member of the Sikh faith and he lived in the Punjab. He is claiming to have a well founded fear of persecution based on his perceived political opinion.
[3] He claims to have been arrested by the police, along with a number of other young men, while building a stage at the temple in Gujjarwal. He alleges that he was interrogated about the terrorist movement and that he was beaten. On the third day he was released, after payment of a bribe and his name was placed on a list.
[4] On December 25, 1995, a liquor store employee was killed in the neighbouring village. The police raided the Applicant"s home that night and arrested him. He was detained for four days, questioned about the murder and was tortured. He was accused of helping the terrorists. He was released, again after payment of a bribe. Some 10 days after his release, he learned that one of the other men arrested at the same time had been killed by the police.
[5] On April 24, 1996, the police raided his home again, but he was in the field at the time. His father and brother were arrested. They were held for 3 days and beaten. They were released on condition that they produce the Applicant.
[6] The Applicant went into hiding at his grandparents" home, where he stayed for almost a month, before leaving the country. The police continue to search for him and he fears that upon his return he would be captured and possibly killed.
[7] The CRDD accepted the Applicant"s identity and found that there were no inconsistencies in his story. However, they found certain aspects of his story to be implausible.
[8] The Board also found that, based on the evidence, if the Applicant were to return to India today, there would be no more than a mere possibility that he would face persecution.
ANALYSIS
[9] The Applicant submits that following the recent decision of the Supreme Court of Canada, in Baker v. M.C.I.1, the standard of review is directly before this Court.
[10] Following Pushpanathan v. M.C.I.,2 and Baker, the appropriate standard of review is to be determined by examining four factors: (a) the existence or absence of a privative clause; (b) the expertise of the board; (c) the purpose of the act as a whole, and the provision in particular; and (d) the "nature of the problem": a question of law or fact.
[11] The Immigration Act3 does not contain a privative clause. Yet, as indicated by Bastarache J., this factor alone is not indicative of a high standard of scrutiny where the other factors suggest a low standard.
| The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard.4 |
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[12] Secondly, unlike Pushpanathan, in the present case the Board, when assessing the objective basis, was not determining a question of law. Instead, it was determining whether or not the Applicant would face persecution if he were to be returned to India. As stated by Bastarache J. in obiter, this determination falls squarely within the expertise of the CRDD:
The expertise of the Board is in accurately evaluating whether the criteria for refugee status have been met and, in particular, assessing the nature of the risk of persecution faced by the applicant if returned to his or her country of origin.5
As such, the expertise of the Board is indicative of deference.
[13] Thirdly, unlike the question before the Court in Pushpanathan, the Board"s decision in this case would not have far reaching effects, nor would it change the purpose of the Convention. This is not a "polycentric" context affecting a broad range of policies or people. Therefore, there is less need for deference.
[14] Finally, the determination of whether the Applicant would face persecution upon his return to India is solely a question of fact and one which falls directly within the core expertise of the Board.
[15] Taking all these factors into account, as required by the pragmatic and functional approach, and having carefully considered the decisions of the Supreme Court in Pushpanathan and Baker, I am of the opinion that the appropriate standard of review for determinations of whether or not there is more than a mere possibility that the Applicant would face persecution if he were to return to India remains patent unreasonableness.
[16] However, accepting a more deferential approach does not preclude this Court from intervening where there is a palpable error or where the Board"s conclusion is not supported by a reasonable interpretation of the facts.
[17] In a pragmatic approach, there is in my opinion a very thin line between a reasonable and a patently unreasonable decision. The Supreme Court, in Director of Investigation & Research v. Southam6 differentiates between the two standards, based on the obviousness of the error:
| The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory J. observed in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 963, "[i]n the Shorter Oxford English Dictionary 'patently', an adverb, is defined as 'openly, evidently, clearly'". This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem.7 |
|
At the end of the day, the decision will have to stand a thorough examination by the reviewing Court in order to enable the Court to evaluate if the tribunal"s reasons are in accordance with the evidence and to ensure that they are not clearly illogical or irrational.
[18] In the case at bar, the tribunal concluded, apparently based on the documentary evidence, that the Applicant would not be at risk upon his return because he does not have a high profile. However, as the Applicant"s counsel, Mr. Waldman, rightly pointed out: during the period described by the documentary evidence, specifically 1995, when the evidence suggests that people in the Applicant"s situation would not be at risk, he was arrested and beaten twice.
[19] Furthermore, the tribunal did not challenge the fact that the Applicant was placed on a police list, at the time of his first arrest. Absent a negative finding of credibility, stated in clear and unmistakable terms, this fact must be accepted at face value.8
[20] The documentary evidence explains that lists are compiled of habitual offenders and that the list implies a threat.
| Lists of habitual offenders -- history sheeters -- are kept throughout India, according to Nair and Brack. Nair explained that if police believe an individual could be a possible recidivist, his or her name would go on the list of habitual offenders, and the information would be shared with other jurisdictions. |
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| According to Nair, the intelligence bureau keeps a centralized network, but it is not available in all levels of police stations. There is however a constant updating of the records kept. According to Nair, every police station will have a history sheeters" list of local suspects, so that when there is a major security disruption, such as the assassination of Beant Singh, typically the police will pull in everyone on the list. In the investigation of that assassination, according to Nair, a couple of hundred people were detained, and most were released after a few days. |
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| Nair explained that this system is used throughout India, and gave the example of a hypothetical trade union strike in Bombay. Before the strike, according to Nair, the police might detain a large number of people from their habitual offenders" list so that suspected criminals will not use the strike as an excuse to rob a bank or commit some other crime. Then when the strike ended these people would be let out again. |
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| According to Nair, being on the habitual offenders" list does not mean one will be hotly pursued, but the list does imply a threat . History sheeters normally have to report to police fairly regularly and, according to Nair, usually become known to authorities quickly after they relocate. Nair stated that the Indian security network remains loose, but can become effective when the police want it to be.9 |
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[21] In my opinion, it is illogical for the Board to conclude that there is no more than a mere risk of persecution, without further explanation, when the documentary evidence clearly indicates that the list does represent a threat and the Applicant has been arrested twice before, during the same period.
[22] Clearly the Board has either ignored or seriously misinterpreted the documentary evidence.
[23] To my mind, such a palpable error renders the Board"s decision patently unreasonable.
[24] As a result, the application for judicial review is granted and the matter is returned for redetermination by a differently constituted panel.
Danièle Tremblay-Lamer
JUDGE
MONTRÉAL, QUÉBEC
August 19, 1999.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990819
Docket: IMM-6076-98
BETWEEN:
SUKHPAL SINGH
Applicant
AND
THE MINISTER
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-6076-98
STYLE OF CAUSE: SUKHPAL SINGH
Applicant
AND
THE MINISTER
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: August 17, 1999
REASONS FOR ORDER OF TREMBLAY-LAMER J.
DATED: August 19, 1999
APPEARANCES:
SOLICITORS OF RECORD:
__________________
1 (9 July 1999), (S.C.C.) (unreported).
2 [1998] 1 S.C.R. 982.
3 R.S.C. 1985, c. I-2.
4 Puahpanathan, supra at 1006.
5 Ibid. at 1017.
6 [1997] 1 S.C.R. 748.
7 Ibid. at para 57.
8 Hilo v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 199 at 201.
9 Tribunal Record at 297-98 [emphasis added].
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