Date: 20040610
Docket: IMM-2842-03
Citation: 2004 FC 835
Ottawa, Ontario, June 10, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
SANDEEP SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Mr. Cliff Berry of the Immigration and Refugee Board, Refugee Protection Division (Tribunal), dated March 7, 2003, which concluded that the Applicant is not a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
ISSUE
[2] One issue is determinative in this case: did the Tribunal err in law by using a higher standard of proof than that of the reasonable chance that persecution would take place if the applicant was to be returned to his country of origin?
[3] For the following reasons, I answer this question in the positive and will therefore allow the application.
FACTS
[4] The Applicant is an 18-year-old Sikh from the Punjab in India. He claims that he has a well-founded fear of persecution and/or other forms of serious harm due to his Sikh religion and family background.
[5] Specifically, the Applicant indicated in his Personal Information Form (PIF) that his father was arrested in Amritsar due to his father's brother's suspected past involvement with militants. His father then encountered further problems with the authorities on a number of other occasions, and the Applicant was arrested and beaten on one of those occasions, in August 2000.
[6] The Applicant indicates that shortly after that incident, in September 2000, his father disappeared, causing the police to suspect his father of joining the militants. The Applicant then alleges that on December 14, 2001, he and his mother were arrested. The Applicant says that he was beaten by the police in an attempt to obtain evidence of militant actions in the area. The Applicant was released after being photographed, fingerprinted, and was told to report monthly to the police.
[7] The Applicant submits that in January 2002, he went into hiding with his uncle at Tedi Pulian. In February 2002, the Applicant's mother was allegedly beaten until she revealed the Applicant's whereabouts.
[8] The Applicant stayed with an agent in Delhi until he fled India on June 18, 2002. He arrived in Canada on the same day and made his refugee claim on June 20, 2002.
DECISION UNDER REVIEW
[9] The Tribunal rejected the Applicant's claim primarily on the basis that he did not find portions of the story to be credible. The Tribunal also found that the objective documentary evidence before him did not support the basis of the claim.
[10] The Tribunal noted that the basis of the Applicant's claim was that the police suspect that he knows the whereabouts of his father, and the activities of militants in his home area of Punjab. The Tribunal found that there was no evidence in the submissions indicating that the police suspect the Applicant of directly supporting the militant movement. The Tribunal had credibility concerns with respect to the Applicant's story relating to the disappearance of his father. The Tribunal also took issue with a number of aspects of the Applicant's recounting of events relating to his time in hiding.
[11] In reviewing the documentary evidence, the Tribunal found that the situation in Punjab is not perfect, but is under control. He also found that there are no recent reports where Sikh individuals of a similar profile to the Applicant have suffered harm at the hands of the police due to their suspected connections to militants or being members of a family with suspected contact with militants.
ANALYSIS
[12] The Applicant submits that the Tribunal committed an error of law by suggesting that the Applicant needs to face "more" than a reasonable chance of serious harm, if returned to India, to be entitled to protection. The Tribunal indicated the following at pages 6 and 7 of its decision:
Objective Basis
The negative credibility finding regarding hiding from the police would not be fatal to this claim if the objective evidence supported a person of the profile of the claimant, would have more than a reasonable chance of serious harm should he return to India. (my emphasis)
[13] In Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.), MacGuigan J.A. indicated:
¶ 5 It was common ground that the objective test is not so stringent as to require a probability of persecution. In other words, although an applicant has to establish his case on a balance of probabilities, he does not nevertheless have to prove that persecution would be more likely than not. [...]
¶ 6 The parties were agreed that one accurate way of describing the requisite test is in terms of "reasonable chance": is there a reasonable chance that persecution would take place were the applicant returned to his country of origin?
[...]
¶ 8 What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility. We believe this can also be expressed as a "reasonable" or even a "serious possibility", as opposed to a mere possibility. (my emphasis)
[14] In Stanculescu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 101, [2001] F.C.J. No. 244 (T.D.) (QL), Campbell J. stated as follows at paragraph 5:
Second, it is agreed that the Applicant has the burden to prove that there is a reasonable chance that he would be persecuted for Convention grounds if returned to Romania. However, the CRDD states the burden as more than this and is, therefore, an error in law. (my emphasis)
[15] It appears in this case that the Tribunal held the Applicant to too high a standard, but does this constitute an error of law that is fatal to the decision as a whole? In Madelat v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 49 (F.C.A.), MacGuigan J.A. for the Court held that:
Coupled with the foregoing is the additional consideration that the Board commented that "it must be convinced that the claimant's fear of persecution is well founded" (Appeal Book II at 226, emphasis added), which raises the question whether the Board understood the limited burden of proof on the appellant as developed in Adjei v. M.E.I. (1989), 57 D.L.R. (4th) 153.
[16] It is quite clear in this case that the Tribunal was satisfied that the credibility problems with the Applicant did not form a sufficient basis upon which to reject the application. The Tribunal also appears to have relied upon its finding that upon return to India, the Applicant would not face "more" than a reasonable chance of serious harm. The Tribunal applied the wrong standard. Reading the decision as a whole does not remedy the fact that the wrong standard was applied. Perhaps the Tribunal may have come to the same conclusion as it did if it had applied the correct standard, but it is not possible to infer this from the decision as it is written.
[17] The Respondent argues that the Tribunal is trying to say that "had the objective documentary evidence supported the applicant's allegations, the Tribunal would have been ready to give the Applicant the benefit of the doubt. Had the documentary evidence shown that a person as the Applicant would have more than a reasonable chance of serious harm, it would have been sufficient to override its negative credibility findings". This argument does not assist the Respondent. The Tribunal applied the wrong standard. In doing so, they committed an error of law that is fatal to the decision.
[18] It is not necessary for me to consider the Tribunal's treatment of the documentary evidence. I do note however that the Tribunal relied wrongfully on the help that should have been seeked by the Applicant for State Protection from the Punjab State Human Rights Commission (PSHRC) (Balogh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 809, [2002] F.C.J. No. 1080 (T.D.) (QL), at paragraph 44).
[19] Neither counsel recommended the certification of a question of general importance. No question will be certified.
[20] This Application for judicial review is allowed. This matter is submitted to a differently constituted panel for reconsideration.
ORDER
THIS COURT ORDERS that this Application for judicial review is allowed. This matter is submitted to a differently constituted panel for reconsideration. No question is certified.
____________________________
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2842-03
STYLE OF CAUSE: SANDEEP SINGH v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 2, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: June 10, 2004
APPEARANCES:
Jean-François Bertrand FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers
Montreal, Quebec FOR THE APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR THE RESPONDENT
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