Date: 19980501
Dossier: IMM-1805-97
Entre :
JAGDEO, MANJIT SINGH
Partie requérante
- et -
LE MINISTRE DE LA CITOYENNETÉ ET DE L'IMMIGRATION DU CANADA
Partie intimée
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of an April 14, 1997 decision of the Convention Refugee Division of the Immigration and Refugee Board [hereinafter Refugee Division] wherein the Refugee Division found that the applicant was not a Convention Refugee.
FACTS
[2] The applicant, Manjit Singh Jagdeo, is a 26-year old citizen of India. He claims a well-founded fear of persecution based on his political opinion and membership in a particular social group. The applicant provided the following information in his Personal Information Form and his testimony at the hearing.
[3] The applicant worked with his father in the family's construction business in Ludhiana. On December 27th 1994, the applicant was arrested by the police at the work site. The applicant was taken to the police station and accused of allowing militants belonging to Babbar Khalsa to use the construction site and hide weapons. The applicant denied this accusation and was hung upside down and beaten. The applicant was brought down and beaten on the soles of his feet and buttocks with leather straps. The applicant fainted from the ordeal.
[4] The applicant was released the next evening upon payment of a bribe by the applicant's father and the help of "local respectables" and the Municipal Commissioner.
[5] The police began to come to their house and question the applicant about his activities. The applicant fled to another village in February 1995. The applicant decided to work for the Sikh cause and also took an interest in the activities of the Akali Dal Youth Wing. The applicant did not join the Akali Dal Youth Wing but he did drive people to the meetings and work in the kitchen. The applicant also became a community worker at the Sikh temple and became popular among the villagers.
[6] The villagers decided to observe August 15, 1995, the Indian Independence Day as "Black Day". The applicant's assignment was to collect people in the village and bring them to Moga on a tractor with Black flags. The applicant and 13 or 14 others were arrested on August 14, 1995 and the applicant was beaten. The applicant was accused of being an anti-national and told to desist from party activity or risk dire consequences. The applicant was released after three days upon assurance of the village council and after his parents provided a bribe. The applicant was hospitalized upon release.
[7] The police raided the applicant's house on September 15, 1995 and arrested the applicant and another person. The applicant was taken to an unfamiliar place where the police accused the applicant of helping and supporting militants and knowing of their hideouts. The applicant denied this accusation and was beaten with iron rods and rifle butts until he fainted. The applicant was taken to an unknown place and to Gurudawara in order to identify militants. The applicant could not identify any militants so he was tortured again.
[8] The applicant was kept in detention for eleven days while being tortured. His release was obtained with the influence of the village council and Sathi Roop La, a former MLA. The applicant was taken to the hospital for treatment.
[9] The applicant decided to move to Gaziabad in Uttar Pradesh in October 1995. On October 29, 1995, the applicant's village was raided as was his house in Ludhiana. The applicant's father was arrested and taken to the police station. The applicant's mother phoned the applicant to relate the events and so the applicant left Uttar Pradesh for New Delhi that same day. The applicant contacted his family and was informed that the police were looking for him. He was also told that his father was tortured and had to reveal his location. The applicant's father told him to leave India and helped make the arrangements. The applicant left India on January 18, 1996 and arrived in Canada the same day to claim refugee status.
[10] The Refugee Division held that the applicant did not have a well-founded fear of persecution based on his political opinion. The Refugee Division stated that the concept of a well-founded fear has both an objective and subjective component. They found that there was no objectively valid basis for the applicant's fear of persecution on this ground.
[11] The applicant stated that his problems arose because the police believed he was harbouring militants. The Refugee Division held that these experiences ran counter to the documentary evidence which showed that militant activities in the Punjab had been virtually eliminated in 1994. However, the Refugee Division noted that the claimant's medical and psychological reports showed that the applicant had suffered physical and mental torture. The Refugee Division concluded that, given the prosperity of the family's construction business, his detention could have been for extortion, which I believe is pure speculation on the part of the Refugee Division. Thus, the Refugee Division held that the applicant had good grounds to fear persecution in the Punjab for that reason.
[12] However, the Refugee Division held that the applicant has an internal flight alternative [hereinafter IFA] available. The Refugee Division noted that the applicant was never photographed, fingerprinted or charged with any criminal activity in his arrests. The documentary evidence showed the horrible treatment that suspected terrorists and their supporters receive from the police. Therefore, the fact that the applicant was released on all three occasions allowed the Refugee Division to conclude that the police did not consider him to be a militant or militant supporter.
[13] The Refugee Division noted that the applicant does not belong to any political organization. Moreover, the Refugee Division held that his profile does not correspond with the type of activist the Punjab police would look for outside Punjab or for which they would contact the Central Reserve Police. The Refugee Division also cited documentary evidence that stated that the authorities do not pursue individual Sikhs outside the Punjab unless they have evidence of criminal activities. Thus, the Refugee Division held that the applicant did not have good grounds for fearing persecution in India outside the Punjab.
[14] Finally, the Refugee Division held that it would not be unduly harsh for the applicant to relocate elsewhere in India. The Refugee Division noted that the applicant is young and has five years experience in construction. They also noted the documentary evidence that shows that Sikhs can be successful in other cities.
[15] Thus, the Refugee Division concluded that the applicant is not a Convention Refugee because he has an available IFA. The applicant seeks judicial review of that decision.
SUBMISSIONS
1. The Applicant's Submissions
[16] The Refugee Division found that the applicant was persecuted because he belongs to a rich family in the Punjab. The applicant submits that the Refugee Division should have considered whether the applicant would also suffer extortion in other parts of India. The applicant notes that the applicant is known by the Punjab police and submits that, as a Punjabi Sikh, he would be easily recognizable and likely to be investigated outside Punjab. The applicant submits that Punjab police are seeking fleeing Sikhs outside Punjab and that the applicant's situation is different that those of local Sikhs outside Punjab. Citing the decision in Kahlon v. Canada (Immigration and Refugee Board) (1993), 24 Imm.L.R. (2d) 219 (F.C.T.D.), the applicant argues that the circumstances of other Sikhs should not be compared with Punjab Sikhs.
[17] The applicant further submits that the Refugee Division merely considered whether the applicant would be sought as a militant elsewhere, but did not consider whether he would be a target for extortion. The applicant notes that the Refugee Division found that the Indian authorities have the ability to locate individuals elsewhere in the country. According to the applicant, this reinforces the applicant's fear that he may be an extortion target elsewhere in India.
[18] The applicant further submits that the Refugee Division failed to consider the particular circumstances of the applicant in determining that the applicant had an IFA in other parts of India, that is, in parts other than the Punjab.
2. The Respondent's Submissions
[19] The respondent submits that the Refugee Division did not conclude that the applicant was a member of a particular social group, contrary to the applicant's submission. The respondent argues that the Refugee Division merely speculated that extortion may have motivated the arrests and bribes.
[20] The respondent notes that the applicant was not involved in any incident for three months while he lived in New Delhi. Furthermore, the Refugee Division found that the applicant was not charged nor linked to criminal activity nor did they believe he was considered to be a militant supporter. Thus, the respondent submits that it was reasonable for the Refugee Division to conclude that the applicant would not be pursued by Punjabi police or the Central Reserve Police for either political reasons or extortion.
[21] The respondent also disputes the applicant's submissions that the Refugee Division determined that the applicant would be likely investigated as a Sikh fleeing Punjab. Instead, the respondent submits that the Refugee Division determined that there would be no interest in the applicant outside Punjab. The fact that the applicant experienced relative peace in New Delhi for three months is further evidence to support the reasonableness of the Refugee Division's finding.
[22] With regard to the availability of an IFA, the respondent cites Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589 (C.A.) in support of the contention that the applicant must demonstrate that an IFA does not exist or is unreasonable. The respondent submits that the applicant did not satisfy the required burden of proof.
[23] The respondent also submits that the Refugee Division did consider the applicant's particular situation by examining his personal profile, political background, his situation in Punjab and New Delhi and his employment opportunities as a 26-year old construction worker. Moreover, the respondent submits that the Refugee Division cited documentary evidence specific to individuals in a similar situation to the applicant.
DISCUSSION
[24] The applicant's sole ground for review concerns the Refugee Division's finding that an IFA existed outside Punjab. The applicant submits that the Refugee Division should have considered whether the applicant was a target for extortion in India outside the Punjab. The applicant also argued that the Refugee Division did not consider his specific circumstances and, instead, they considered the general situation of Sikhs outside Punjab.
[25] The respondent correctly cites Thirunavukkarasu v. M.E.I. [1994] 1 F.C. 589 (C.A.) for the proposition that the onus is on the applicant to prove on the balance of probabilities that there is a serious risk of persecution in the alleged IFA. The Refugee Division must be satisfied on the balance of probabilities that there is no serious risk of persecution in the part of the country in which the IFA exists. The Refugee Division must also find that, given all the circumstances, it would not be unreasonable for the applicant to seek refuge there (see Rasaratnam v. Canada (M.E.I.), [1992] 1 F.C. 706 (C.A.)).
[26] The applicant submits that the principle espoused in the Kahlon decision, supra, applies to this case. In Kahlon, supra, the claimant argued that the decision in Sabaratnam v. Canada (M.E.I.), [1992] F.C.J. No. 901 (QL) (F.C.A.) added to the test in Rasaratnam, supra, so that the Refugee Division must consider the situation of individuals who are similarly situated to the claimant. The court cited the decision in Singh v. Canada (M.E.I.) (1993), 65 F.T.R. 110 where Dubé J. wrote (at page 112):
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The question before the tribunal was not whether a "nation-wide campaign against Sikhs" was being waged by the Indian government, but whether there was a serious possibility of the applicant being persecuted elsewhere in India. In my view, the tribunal erred in inferring, from one piece of general documentary evidence as to the social position of Sikhs outside the Punjab, that the applicant would therefore be safe elsewhere. The tribunal cited no other evidence in support of its conclusion that because Bombay and Calcutta were not scenes of actual conflict, the applicant would not be at risk there. Nor did it address the question of whether, in all the circumstances, including those particular to the applicant, it would be reasonable for him to go there. |
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[27] The court in Kahlon, supra, agreed with the applicant's submission and held that the Refugee Division should have considered the situation of individuals similarly situated to the claimant rather than the general condition of Sikhs living in India outside Punjab.
[28] I am satisfied that Sabaratnam, Singh and Kahlon, supra, are mere expressions of the principle that the Convention Refugee definition and the alleged IFA must be assessed in terms of their application to the applicant. One would certainly find it odd if the Refugee Division cited documentary evidence about non-Sikhs in an application for Convention Refugee status by a Sikh. Similarly, one should also be wary about generalizing from information about Sikhs who have lived outside Punjab for their whole lives and applying that evidence to a Sikh claimant fleeing from Punjab after numerous detentions and beatings. The simple proposition is that evidence which is more relevant to the claimant's circumstances will always have greater probative value in an IFA assessment than evidence that bears lesser or little relevance. The Refugee Division must make its determination of the existence of an available IFA based on the claimant's circumstances.
[29] I note that in Bhinder v. Canada (M.E.I.) (1994), 76 F.T.R. 74, MacKay J. distinguished Singh on the ground that the Refugee Division had considered the applicant's circumstances (at page 76):
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For the applicant it was submitted that the tribunal failed to consider relevant evidence in important respects. First, it is said that the tribunal ignored the applicant's testimony, in relation to the question of whether he would be safe in Bombay, that he would not be safe because Sikhs at a college in that area were subject to harassment, evidence not contradicted and thus warranting careful assessment before it is ignored, as found by Mr. Justice Dubé in Singh.... In my view, Singh is distinguishable, for there the decision set aside by Dubé J. did not refer to circumstances of the applicant's own situation. Here the tribunal did consider those circumstances which it found to be relevant, its decision was not based solely on documentary evidence of the general situation facing Sikhs elsewhere in India than in the Punjab. I note, moreover, that the decision here questioned did refer to the testimony of the applicant that Sikhs are not safe anywhere in India and his reference to another incident in the state of Uttar Pradesh. The tribunal cannot be said to have ignored his testimony in regard to a possible IFA. |
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[30] Upon examination of the Refugee Division's decision, I am satisfied that the Refugee Division did consider the applicant's situation. The Refugee Division noted the following circumstances peculiar to the applicant: the applicant was released from jail on all three occasions; the applicant did not belong to any political organization; his profile does not correspond with the type of activist the Punjab police would look for outside Punjab or for which they would contact the Central Reserve Police; the applicant is young and has five years experience in construction. They also noted documentary evidence that stated that the authorities do not pursue individual Sikhs outside the Punjab unless they have evidence of criminal activities. Finally, the Refugee Division cited evidence showing the success of Sikhs in other cities.
[31] Thus, the decisions in Sabaratnam, Singh and Kahlon, supra, can be distinguished from the case at bar because the Refugee Division considered the circumstances of the applicant.
[32] Moreover, I reject the applicant's submission that the Refugee Division should have considered whether the applicant was a target for extortion in India outside the Punjab. The applicant had the onus of proving that there is a serious risk of persecution in the IFA and I find no evidence establishing on the balance of probabilities that the applicant would face a serious risk of persecution due to extortion.
CONCLUSION
[33] An issue arose relating to the words used by the Refugee Division as to the burden or onus on the applicant to show that he, in fact, does not have an IFA in India outside of the Punjab. The Refugee Division used the word "persuade" in stating that the applicant did not persuade the Board on the balance of probabilities that he did not have an IFA anywhere in India.
[34] The applicant submits that use of this word by the Refugee Division in this manner indicates that the Refugee Division used the wrong test in determining if the applicant satisfied his onus. The applicant submits the issue is not to "persuade" but only to "satisfy" on the balance of probabilities that the IFA is not applicable to him.
[35] The Refugee Division states on page 6 of its decision:
| After careful examination of all the evidence presented at the hearing and because of the reasons stated above the panel is not persuaded on a balance of probabilities that the claimant has good grounds for fearing persecution by reason of any of the grounds set out in the Convention refugee determination should he return to India outside of Punjab and that it is not unreasonable, under all of the circumstances, for the claimant to avail himself of an IFA. The panel is of the view that the claimant has an IFA as set out in Rasaratnam. |
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(emphasis added)
[36] What I believe the applicant is saying is that the Refugee Division, by using the words "the panel is not persuaded" placed a heavier onus on the applicant than if it had said "the panel is not satisfied on the balance of probabilities".
[37] Black's Law Dictionary Fifth Edition defines "persuade" and "satisfy" as follows:
| Persuade. to induce one by argument, entreaty, or expostulation into a determination, decision, conclusion, belief, or the like; to win over by an appeal to one's reason and feelings, as into doing or believing something; to bring oneself or another to belief, certainty or conviction; to argue into an opinion or procedure. |
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| Satisfy. To answer or discharge, as a claim, debt, legal demand or the like. To comply actually and fully with a demand; to extinguish, by payment or performance. To convince, as to satisfy a jury. |
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[38] I am satisfied that the use of the word "persuade" is the correct word and is properly used by the Refugee Division. The onus is on the applicant "to induce one by argument .." the Refugee Division that the applicant does not have an IFA in India outside the Punjab. The use of the word "satisfy" in a legal context is not applicable in the present context. In practical terms, the use of "satisfy" or "persuade" is the same.
CONCLUSION
[39] For the above reasons, the application for judicial review is denied.
QUESTION FOR CERTIFICATION
[40] No question has been submitted for certification.
"Max M. Teitelbaum" J.F.C.C.
OTTAWA, ONTARIO
May 1, 1998
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