Date: 19980202
Docket: IMM-2474-97
BETWEEN:
SARBJIT RANDHAWA, RANJIT RANDHAWA,
MANJOT RANDHAWA and SATVIR RANDHAWA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CAMPBELL, J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") made on May 21, 1997, wherein the Applicants were found not to be Convention refugees.
[2] The principal issue in this care related to the duty of the CRDD to correctly assess the evidence and apply the "Convention Refugee" provision of the Immigration Act which is as follows:
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"Convention refugee" means any person who |
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(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, |
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(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwillingly to avail himself of the protection of that country, or |
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(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and |
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(b) has not ceased to be Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act. |
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[3] The duty on the CRDD is well defined in the Reasons of Wetston, J. in Joel Coreas Navarro and The Minister of Citizenship and Immigration (File A-1699-92) wherein he gave the following opinion:
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It is the opinion of the Court that given the evidence submitted by the applicant which pointed to a ground of membership in a particular social group as founding a possible fear of persecution, the Board should have considered this ground as part of the claim to refugee status notwithstanding the fact that the claim was not expressly relied upon in the PIF. This is particularly so since the Board appears to have accepted the evidence of the applicant regarding his kidnapping and forced labour. (Ward v. M. E. I. [1993] 2 S.C.R. 689 at page 745; Singh v. Secretary of State of Canada, June 14, 1994, Imm-3591-93 (F.C.T.D.)) |
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The Board failed altogether to assess the claim based upon membership in a social group. (Hujaleh v. M.E.I., April 14, 1993, A-250-92 (F.C.A.). The Board has a duty to assess the evidence and decide if it amounted to evidence of a well founded fear of persecution. While it would have been preferable and indeed desirable for counsel to have argued this ground, there was nevertheless a duty on the Board to consider whether membership in a social group, in this case, gives rise to a well founded fear of persecution. [emphasis added] |
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[4] The questions are: Did the CRDD meet the duty and if so, did the CRDD make an error in law or in fact in meeting the duty?
A. The facts
[5] There is no question of credibility in this case and accordingly the facts which follow were accepted by the CRDD as true.
[6] The Applicants are a Sikh family comprised of Sarbjit (father, aged 48) Ranjit (mother, aged 38), Manjot (son, aged 15) and Satvir (daughter, aged 11). They came to Canada on June 1, 1996 from the village of Billa Nawab in Punjab.
[7] The principal Applicant was a farmer. The family property was 26 acres and they owned and leased land in other villages. By Indian standards, the family was very wealthy. The principal Applicant's wife is well educated, held a Master of Arts degree from the University of Rajastan and was one of the two women elected to the five member village panchayat. The sarpanch (head of the village) and panchayat are responsible for dealing with any disputes or misunderstandings in the village. The family are members of the Sikh religion and the children attended a convent school in a nearby town.
[8] The family left India at the end of May 1996 and arrived in Canada on June 1, 1996. On July 27, 1996, the Applicants notified Canada Immigration that they were going to make a Convention refugee claim after retaining counsel to assist them. The claim was based upon their religion, membership in a particular social group and perceived political opinion.
[9] At 11:00 p.m. during the night of January 12, 1996, three police officers came to the family home and indicated that the Senior Police Office (or the S.H.O.) wanted to see him and that he was to accompany them. The principal Applicant agreed to accompany the police and requested that the sarpanch also come along. After he was placed in the van, it became obvious that the police were not going to bring the sarpanch along. When he protested, he was hit on the head and knocked unconscious.
[10] When he regained consciousness, he was in a room that he believed to be in the police station. The police beat him and demanded 500,000 rupees. The principal Applicant requested some time to get the money. He was released and given three days. During the three days, the principal Applicant and his wife decided that they would only give the police 100,000 rupees in an effort to curtail any future money demands. The polices collected the 100,000 three days later and demanded that the remaining 400,000 be paid at the end of the month.
[11] On February 16, 1996, one month later, the police returned and the principal Applicant gave the police 50,000. Later the same evening, the police returned and took the principal Applicant to the same room as before and beat him, hung him upside down and burned his leg and arm. They threatened to kill him in a false encounter and allege he was a terrorist if they did not receive the money. The principal Applicant agreed to pay the remainder of the money within 15 days.
[12] After the principal Applicant returned home he spoke with his close friend Mr. Jandu who suggested that he should take his family to Delhi because the police would continue to harass him if he gave them the money. The principal Applicant never informed the village sarpanch of his dilemma nor did he inform the police. He never went to a lawyer because "it is the kingdom of police there". On February 28, 1996, when the children's school break was to begin, the family left for Delhi and stayed with the principal Applicant's mother-in-law.
[13] On March 7/8, 1996, the police came to the mother-in-law's house demanding to see the principal Applicant. It is not known whether it was the Delhi or the Punjab police. On another occasion, his mother-in-law saw the Punjab police standing on the corner of the street close to the house.
[14] The family stayed in Delhi for three months and left for Canada on May 31, 1996. During this time period, the principal Applicant travelled to Nakodar, a town nearby his village, a number of times and stayed with his friend for up to three nights during some visits. During his visits, he oversaw the operations of his farm, did business in Nakodar and prepared the family's visas.
[15] In mid-April the principal Applicant and his family moved to Nakodar to live with the principal Applicant's friend so the children could continue to attend their school. The principal Applicant and his family never returned to the family farm after they left it on February 28, 1996.
[16] When asked if the principal Applicant knew of anyone in a similar situation to his own, he spoke of a family in a neighbouring village whose daughter had been kidnapped by the police and returned after the family paid a ransom.
B. The decision and resulting arguments
[17] The issue of whether the Applicant was part of a "social group" within the definition of "Convention Refugee" was not argued before the CRDD. This, therefore, left the CRDD to decide on its own whether the evidence supported such a conclusion. This the CRDD attempted to do at page 1 of the decision setting the following issue and attempting to deal with it:
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Is there a link or nexus between the harm experienced by the principal claimant and one of the five grounds listed in the definition of a Convention refugee? If there is a link to the definition, can the claimants live safely elsewhere in India? |
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[18] The Applicants argue that the CRDD made a reviewable error in dealing with the issue stated. In this respect the following portions of the CRDD decision are critical:
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The principal claimant has testified that he had no problems with the police prior to January 1996. The documentary evidence speaks of the relentless pursuit of Sikhs whom the police suspected either were members of militant Sikh groups or militant supporters and their families particularly up until 1994. It is now recognized that many innocent Sikhs were also targeted during this time. The fact that the principal claimant had no problems during this very violent time period causes the panel to find that there is no link between the treatment he received from the police and the fact that he is a Sikh. We further find that there is no link by reason of any political opinion held by or attributed to the principal claimant. |
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While counsel did not argue that the principal claimant was a member of a particular social group, emphasis during the hearing was placed on the fact that he lived in the largest house in the village, made a large amount of money from his farming ventures, his in-laws were influential and wealthy people in Delhi and his wife was prominent in the village community as an elected member of the panchayat. Counsel did argue, however, that the family was targeted for extortion by the police and that the police abuses continue in India. |
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In reaching the conclusion that the claimant was not a member of a particular social group, namely prominent wealthy farmers targeted by the police for extortion, the panel reviewed the following three categories of particular social group as enunciated in Ward:.. |
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[19] In the decision the CRDD determined that there was indeed persecution against the principal Applicant, but the persecution was not because he was a Sikh but because he was a wealthy farmer. Mr. Darwent on behalf of the Applicant argued that the CRDD erred in its conclusion about the proper social group in which to place the principal Applicant. In his submission it was an error to compartmentalize the fact that the principal Applicant is a Sikh from the fact that the principal Applicant is a prominent wealthy person.
[20] The CRDD's decision that, where extortion is the sole basis for the persecution and, therefore, there is an insufficient link or nexus to the definition of Convention refugee, finds precedent in a number of decided cases.
[21] In Karpounin v. Canada (Minister of Employment and Immigration)1 the Applicant was subject to extortion because he was a financially successful businessman, the court held that he did not qualify as a Convention refugee:
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"he was the target of persecution solely because he had a lot of money and not because of his political opinion or membership in a political social group. |
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The present state of the law and the unique facts of this case do not dictate, as submitted by the applicant, that his refusal to bow to extortion puts him in a particular social group defined by innate or unchangeable characteristics, nor that his status as a financially successful person in the Ukraine, places him in a particular social group defined by voluntary association "for reasons so fundamental to their human dignity they should not be forced to forsake the association." |
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[22] In Vetoshkin v. Canada (Minister of Citizenship and Immigration)2 the Court upheld the CRDD's decision that while there was evidence of continuing extortion and other criminal activity against the applicant in Russia, there was no further indication that it was related to his Russian nationality, and, as such, his circumstances were not captured under the definition of Convention refugee.
[23] In Balendra v. Canada (Minister of Citizenship and Immigration)3 the Court accepted the decision of the Refugee Board that the problems associated with having to pay a bribe are not related to one of the grounds of the definition of a "Convention refugee", nor do they constitute persecution or give rise to a well founded fear of persecution. The Court held that "[t]he tribunal examined the applicant's experience at the hands of the authorities and determined that the pattern of behaviour exhibited is more akin to corruption than to persecution". [emphasis added]
[24] Furthermore, in Soberanis v. Canada (Minister of Citizenship and Immigration)4 Madame Justice Tremblay-Lamer held that small business proprietors in Guatemala who had been victimized by extortionists acting in concert with police authorities could not be considered as a particular social group as recognized under the definition of Convention refugee.
[25] However, in this case it is my opinion that, considering the extensive evidence of persecution of Sikhs in India, the CRDD made an erroneous finding of fact in compartmentalizing the Applicant as a Sikh from the fact that he is a prominent wealthy person. On this basis I find that the Board should have considered the Applicant as a member of the social group "prominent wealthy Sikhs".
C. Internal flight alternative
[26] On the internal flight issue, there are two findings of concern. The first is at page 8 of the decision where the following is stated:
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...The panel finds that the claimant and his family could live safely elsewhere in India. |
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[27] The second is at page 9 as follows:
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...While taking some precautions, the panel concludes the claimants were not in hiding and nothing happened to she or the children prior to the departure at the end of May. |
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[28] I accept Mr. Darwent's argument that the fact that the police traced the principal Applicant and his family to Delhi is evidence which can be taken to prove that the claimant and his family could not live safely in Delhi.
[29] I also accept Mr. Darwent's argument that there is no question on the evidence produced during the hearing before the CRDD that the principal Applicant and his family were in hiding in Delhi. The evidence that the principal Applicant travelled in a car with tinted glass to avoid detection, travelled at night, and the principal Applicant's wife's testimony that she wouldn't leave their place of residence, all proves that the family was indeed in hiding.
E. Conclusion
[30] For the reasons stated, I find that under s. 18.1 (4) (d) of the Federal Court Act the CRDD made erroneous findings of fact without regard for the material before it.
[31] Accordingly, the decision of the CRDD is set aside with respect to all of the Applicants and the matter is referred to a differently constituted Panel for rehearing. In this respect, I make the specific direction that the newly constituted Panel consider the principal Applicant's refugee claim on the basis that he is a member of the social group "prominent wealthy Sikhs".
Judge
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1 Karpounin v. Canada (Minister of Employment and Immigration) [1995] F.C.J. No 371
2 Vetoshkin v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 921
3 Balendra v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No 191
4 Soberanis v. Canada (Minister of Citizenship and Immigration) [1996] F.C.J. No. 1282
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