Date: 20071001
Docket: IMM-1157-07
Citation:
2007 FC 978
Ottawa, Ontario, October 1, 2007
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
SARBIT
SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a negative
decision by the Immigration and Refugee Board (the panel) dated February 13,
2007. The panel refused the refugee claim and found that the applicant was not
a “person in need of protection” as defined in section 97 of the Act. The panel
decided it need not consider the application under section 96.
ISSUES
1.
Did the
panel err in failing to consider the applicability of section 96?
2.
Did the
panel err in failing to consider all the oral evidence?
3.
Did the
panel err in basing its decision on an erroneous finding of fact that it made
in a perverse or capricious manner or without regard for the material before
it?
4.
Did the
panel err in finding that the applicant did not discharge his burden of
establishing that his country is unable to protect him?
5.
Did the
panel err in determining that the applicant had an internal flight alternative?
[2]
For the
reasons below, the response to the first question is in the affirmative, and it
is not necessary for me to respond to the other questions. This application for
judicial review will therefore be allowed.
BACKGROUND
[3]
The
refugee claimant, Sarbjit Singh, is a citizen of India who arrived in Canada on
May 4, 2004, and claimed refugee status. His claim for protection is
based on problems with his neighbour, an active member of the Babar Khalsa
organization.
[4]
On July 6,
1999, the applicant and his brother saw their neighbour, Mangal Singh, running
from the police. They told the police where he was hiding. Mangal Singh was
killed in the ensuing gun battle.
[5]
The
applicant’s father warned his sons that this neighbour was a member of the
Babar Khalsa, a terrorist organization. A few days later, Mangal Singh’s son,
Ajmer Singh, called the applicant’s father to tell him that he was going to
avenge his father’s death. The applicant’s family received a number of similar
calls and informed the police.
[6]
On
September 25, 1999, on his way to work, the applicant’s brother was murdered by
Ajmer Singh and his men. The applicant’s family reported the murder to the
police, which led to a trial and a conviction. However, Ajmer Singh was
released in December 2003.
[7]
The family
continued to receive threatening telephone calls during the trial. The
applicant fled to Cyprus to continue his studies. While he was away, Ajmer
Singh’s thugs destroyed the crops belonging to the applicant’s family, thus
causing financial problems for them. The applicant then returned to India.
[8]
Once
released, Ajmer Singh began threatening the family again, and on January 4, he
and his men shot at the applicant. On January 24, 2004, the family’s home was
ransacked. The applicant hid in another Indian province, but he was still
pursued. He left India for Canada on April 18, 2004.
IMPUGNED DECISION
[9]
The panel
determined that there were no grounds for refugee protection under section 96
and pointed out that the applicant had not applied under this section. The
panel analyzed the protection claim solely under section 97 and denied the
claim. The applicant challenges that decision in this judicial review.
[10]
First, the
panel referred to the fact that the applicant returned to India after his stay
in Cyprus and concluded that there was no subjective fear of persecution.
[11]
Second,
the panel found that the applicant did not discharge his burden of establishing
that his country is unable to protect him. In support of this finding, the
panel refers to the fact that there was a trial and a conviction following his
brother’s murder. The panel also cites the fact that, according to his Personal
Information Form, the applicant did not report the acts committed after the
trial by the members of the Babar Khalsa. The applicant testified that his
family did inform the police, but the panel did not find this statement
credible.
[12]
Last, the
panel concluded that there was an internal flight alternative. The panel did
not believe that the applicant was being sought throughout India and determined
that, despite his instability, the applicant could settle in New Delhi.
ANALYSIS
1. Did the panel err in failing to consider the
applicability of section 96?
[13]
The
applicant submits that the panel erred in law in failing to consider that he
was a “Convention refugee” under section 96. He states that he fears
persecution based on his political opinion.
[14]
The
appropriate standard of review in this case is correctness: Kaburundi v. Canada
(Minister of Citizenship and Immigration), 2006 FC 361, [2006] F.C.J. No.
427 (QL) at
paragraphs 41 and 42:
According to the applicant, the panel
erred in law in failing to deal with the merits of his claim for refugee
protection, i.e., his potential inclusion in the “Convention refugee”
categories.
The standard of review for such an error
of law would be the correctness standard (Pushpanathan v. Canada (Minister
of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[15]
Before
determining whether the panel decided the question correctly, I will consider
one of the respondent’s arguments. He refers to the fact that the applicant did
not check the box dealing with grounds for persecution and, therefore, did not
apply under section 96. This statement is incorrect. In Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, the Court stated the following on
this issue:
I note that the UNHCR Handbook, at p.
17, paragraph 66, states that it is not the duty of a claimant to identify the
reasons for the persecution. It is for the examiner to decide whether the
Convention definition is met . . .
[16]
In the
Court’s view, the following passage from the panel’s decision constitutes a
reviewable error (tribunal record, page 4, second paragraph):
The panel determines that there are no
grounds for the claim for refugee protection under section 96,
particularly since the claimant did not originally make his claim under
section 96 but only under paragraphs 97(1)(a) and (b),
and after discussions with the claimant’s counsel, the panel concludes that
this claim for refugee protection is based solely on section 97 because it
is simply a matter of revenge.
[17]
It is true
that there was a discussion about sections 96 and 97 at the hearing. However,
it cannot be inferred from the discussion that counsel for the applicant waived
an analysis under section 96. It was the decision-maker himself who determined
that the claim was based solely on section 97 because, in his view, it was
simply a matter of revenge.
[18]
On the one
hand, the documentary evidence about the terrorist organization Babar Khalsa is
probative. On the other hand, in both his written documents and his testimony,
the applicant alleges a well-founded fear of persecution with regard to this
organization. Furthermore, the panel wrote the following (tribunal record, page
4):
The claimant’s father apparently told
them that they were wrong to tell the police where the neighbour was hiding
because the organization that the neighbour belonged to was very dangerous.
[19]
In light
of such a statement and the evidence in the record, the Court does not
understand why the panel decided to base its analysis solely on section 97.
[20]
It is true
that revenge is an important factor in the applicant’s statement about
persecution. However, the aspect of the applicant’s story regarding the
terrorist organization Babar Khalsa should have been analyzed under section 96.
This error warrants the intervention of the Court (Jawaid v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 220, [2003] F.C.J.
No. 305 (QL)).
[21] The parties did not submit a
question for certification.
JUDGMENT
THE COURT ORDERS that this application for judicial
review is allowed. The matter is remitted to be analyzed and decided by a
different panel. There is no question to be certified.
“Michel
Beaudry”
Mary
Jo Egan, LLB
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