Date: 19980216
Docket: IMM-923-97
OTTAWA, ONTARIO, THE 16TH DAY OF FEBRUARY 1998
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
GURVINDER SINGH SANDHU,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review is dismissed and a serious question of general importance is certified.
J.E. DUBÉ
Judge
Certified true translation
M. Iveson
Date: 19980216
Docket: IMM-923-97
Between:
GURVINDER SINGH SANDHU,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DUBÉ J.:
[1] This is an application for judicial review of a decision by the Convention Refugee Determination Division ("the panel") dated February 18, 1997, which determined that the applicant is not a Convention refugee.
1. Facts and the Panel"s Decision
[2] The applicant, a citizen of India of the Sikh faith, claimed refugee status, alleging a well-founded fear of persecution for reasons of political opinion. A resident of the Punjab, he supported the Akali Dal Party and was physically abused by the police because they believed him to be associated with Sikh militants.
[3] In its decision, the panel recognized that the applicant had been tortured at the time in question. It also found that, as a result of changed circumstances in the Punjab, there was no longer any objective basis for his fear that he would be persecuted should be return to the country. At the outset, the panel identified three issues to be determined: the applicant's identity as a Sikh resident of the Punjab, whether the applicant"s fear of persecution was well founded and whether an internal flight alternative was available.
[4] Counsel for the applicant alleges that instead of deciding the three issues it had itself identified, the panel focused on other issues, particularly that of changed circumstances. While it is true that the panel concentrated on this factor, it did so to show that there was no objective basis for the applicant's fear. If this fear is unfounded, it is of course unnecessary to consider the third issue, namely the availability of an internal flight alternative.
[5] It can be seen from the decision at issue and the submissions of the parties that there are in fact three issues to resolve: whether the panel erred either in finding that there was a change in circumstances, in refusing to apply the Convention against Torture or in failing to consider subsection 2(3) de la Immigration Act (the Act).1
2. Change in Circumstances
[6] It should be noted that the applicant was no longer in the Punjab at the time of the hearing and that his subjective fear was based on his former circumstances in his country. What he had to establish was that there was an objective basis for his fear at the time of the hearing.
[7] The voluminous evidence considered by the panel on the subject of the political and social situation in the Punjab is controversial and can be interpreted in different ways. Among the documentary evidence, the panel is entitled to rely on that which it considers most consistent with reality.2 The issue of changed circumstances is a pure question of fact, as the Federal Court of Appeal indicated in Yusuf.3 There is no prescribed legal test for determining whether there has been a change in circumstances in a country. The panel must use the documentation submitted to it to determine whether a change in circumstances has in fact occurred.
[8] The applicant's subjective fear is based on the fact that, at the time in question, he supported a candidate for the Akali Dal Party, which resulted in his being mistreated by the police. However, it can be seen from the documentary evidence that in June 1996 the Akali Dal Party won a majority of seats in federal elections in the Punjab. Even if the documentary evidence is contradictory in certain areas, the panel could reasonably rely on the evidence it considered most consistent with reality.
[9] In a very recent decision dated January 10, 1997, Mr. Justice Lutfy of this Court considered this very issue of the changed circumstances in the Punjab in Sukhraj Singh v. M.C.I.4 The judge concluded as follows:
| The Tribunal, in my opinion, received sufficient evidence to support its decision concerning the changed circumstances in India. The record also established some contrary evidence on the same issue, including family correspondence warning the applicant not to return to India. However, it is not the function of this Court to determine whether a different view could have been reached from an analysis of the same evidence. In my view, there is no reviewable error in the manner in which the Tribunal reached its decision. |
[10] I must therefore conclude that the panel committed no error of fact which would justify the intervention of this Court when it found that there was a change in circumstances in the Punjab, and my conclusion means that there is no objective basis for the applicant's fear.
[11] It is accordingly unnecessary to consider the availability of an internal flight alternative.
3. Convention against Torture
[12] At the hearing, counsel for the applicant asked the panel to apply the Convention against Torture, an international agreement signed and ratified by Canada which provides, inter alia, in Article 3 that "(n)o State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Counsel argued that in light of the panel"s finding that the applicant had been subjected to torture in the past, Canada should not return him to India, as there were substantial grounds for believing that he would be tortured again. The panel did not accept this argument and did not mention it in its reasons.
[13] In my view, the panel did not have jurisdiction to apply the Convention against Torture as there is no express provision in its enabling legislation to this effect. The panel's role is to determine whether a person is a refugee within the meaning of the Geneva Convention. Furthermore, the Convention against Torture has not been incorporated into Canadian domestic law, although Canada has signed and ratified this international agreement.
[14] In Baker v. Canada,5 the Federal Court of Appeal had to determine whether federal immigration authorities were required to consider the International Convention on the Rights of the Child given that the Immigration Act does not expressly incorporate the language of the international obligations under this Convention. The Court held that a treaty made by the executive branch of government but which has not been incorporated into domestic law has no effect over rights and obligations within Canada. The panel therefore has no jurisdiction in the matter and, moreover, it is the role not of the panel but of the Minister to expel, return or extradite a person to another State under the Canadian Act.
4. Subsection 2(3) of the Act
[15] The applicant also submits that the panel erred in failing to consider subsection 2(3) of the Act, which reads as follows:
| 2. (3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution. |
[16] This subsection expressly authorizes the panel to grant refugee status to claimants even though their fear no longer has an objective basis due to a change in circumstances, if the claimants suffered such appalling persecution that their experience alone is a compelling reason not to return them to their country.6 The following passage from the reasons of Mr. Justice Hugessen of the Federal Court of Appeal is worth reproducing:
| ...On any reading of subsection 2(3) it must extend to anyone who has been recognized as a refugee at any time, even long after the date of the Convention. It is hardly surprising, therefore, that it should also be read as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution. |
| The exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of present day claimants. . . . |
[17] In the case at bar, it must be determined whether the torture the applicant suffered was so appalling that this experience alone is a compelling reason not to return him to his country, even if there is no longer any fear of further persecution. Unfortunately for the applicant, this provision was not raised at the hearing and the panel was accordingly not required to consider applying it. In Gyamfuah v. Canada,7 Madam Justice Simpson said the following on this issue:
| In determining whether an applicant meets the definition of a Convention refugee, the Refugee Division has jurisdiction to consider the evidence to determine whether s. 2(3) of the Immigration Act applies such that an applicant may be granted Convention refugee status even though the objective basis for their fear of persecution no longer exists.8 In cases involving appalling past persecution, if the application of s. 2(3) is not proposed by an applicant or if the applicant's factual evidence is not believed, s. 2(3) will not be considered. |
[18] Since the applicant did not adduce evidence to establish that he is part of the tiny minority falling under subsection 2(3), the panel did not have to decide the issue.
5. Conclusion
[19] The arguments in support of the applicant's application and the documents he filed are accordingly insufficient to convince this Court to grant the relief sought.
[20] The applicant submitted a serious question of general importance for certification, and I accept it as is:
| [TRANSLATION] Is the Refugee Division required to consider Article 3 of the Convention against Torture concerning the expulsion, return or extradition of a person in order to determine whether a claimant is a Convention refugee? |
| Certified true translation |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-923-97
| STYLE OF CAUSE: GURVINDER SINGH SANDHU |
| MINISTER OF CITIZENSHIP AND IMMIGRATION |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
DATE OF HEARING: FEBRUARY 12, 1998
REASONS FOR ORDER BY DUBÉ J.
DATED: FEBRUARY 16, 1998
APPEARANCES:
JEAN-FRANÇOIS FISET FOR THE APPLICANT
JOCELYNE MURPHY AND FOR THE RESPONDENT
MARIE-CLAUDE DEMERS
SOLICITORS OF RECORD:
BLAIN, FISET ET ASSOCIÉS FOR THE APPLICANT
MONTRÉAL, QUEBEC
GEORGE THOMSON FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
__________________
1 R.S.C., 1985, c. I-2.
2 Noël J. in Victorov v. M.C.I., IMM-5170-94, June 14, 1995, at p. 4.
3 (1995), 179 N.R. 11, at p. 12 (F.C.A.).
4 F.C., IMM-2803-95.
5 [1997] 2 F.C. 127.
6 Canada v. Obstoj, [1992] 2 F.C. 739, at p. 748.
7 25 Imm. L.R. (2d) 89.
8 Hassan v. Canada (Minister of Employment and Immigration) (October 22, 1992), A-831-90 [reported at 147 N.R. 317 (F.C.A.)].
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