IMM-3195-96
BETWEEN:
GURJEET
SINGH SRAN
Applicant
-
AND -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR ORDER
McKEOWN J.
The
applicant, a citizen of India, seeks judicial review of a decision of the
Convention Refugee Determination Division of the Immigration and Refugee Board
(the Board) dated August 7, 1996, wherein the Board determined that the
applicant was not a Convention Refugee.
The
primary issue is whether the Board's decision was made without regard to the
material before it because it ignored the evidence of past persecution and
torture of the applicant and the applicant's testimony with respect to his
allegations that the police considered that he had links to the militants. The
other issue is whether the Board's finding of an internal flight alternative
(IFA) was reasonably open to it on the evidence.
The
Board did not deal with the applicant's allegation that he was tortured during
three arrests and detentions. The applicant testified in his Personal
Information Form that he was repeatedly and badly tortured during the three
arrests and that on one occasion, he was hung upside down until unconscious.
He also testified that he was beaten and given poor food at infrequent
intervals. The Board did not consider this evidence of past persecution except
in passing when it stated at page 5 of its reasons:
While the documentation generally
corroborates the claimant's testimony that during 1993, he was subject to abuse
at the hands of the police and that the police attempted to extract information
and money from the claimant, there is an absence of evidence that such a
practice is continuing in light of the current conditions.
Torture
can never be excused at any time and it is insufficient to characterize it
simply as abuse. The Board made no finding against the general credibility of
the applicant. The only finding with respect to the applicant's credibility
related to a finding of implausibility which I will review later. It is
insufficient to say that the applicant was subject to abuse. I agree that the
Board, when determining whether a person satisfies the definition of Convention
refugee, deals with the possibility of future persecution. However, in my
view, there should also be a clear acknowledgement of past persecution when a
victim has been tortured.
With
respect to the applicant's evidence that he was viewed by police as a supporter
of the militants, the Board stated at page 5:
The claimant has not been charged
with an offence and he is not sought as a supporter of militants. The claimant
was not politically active and was not a supporter or member of the All India
Sikh Student Federation, the Akali Dal or other Sikh organizations.
Notwithstanding the claimant's experiences in 1993 at the hands of the police,
the panel determines that there is no more than a mere possibility that the
claimant would be persecuted by the police as an alleged supporter of Sikh
militancy in light of current conditions.
While
the Board refers generally to the claimant's experiences with the police in
1993, there are a number of specific instances the Board should have reviewed.
With respect to the first arrest, the applicant testified that the police took
his photograph and fingerprints for the record and informed the applicant that
he must provide them with information of any militant activity in the area of
which he became aware. Secondly, although the police released the applicant
upon receipt of a bribe on his second arrest and detention, the police told the
village council that they suspected that the applicant had involvement with the
militants, and the police told the council that the applicant would be called
back by the police when required. Thirdly, the applicant testified that the
police threatened after the third arrest that if he did not give the police
information about the militants, he would be killed. It was open to the Board
to reject the applicant's evidence in this regard; however, the Board did not
state whether it rejected or accepted this evidence.
In
my view, the Board erred in ignoring the evidence of past persecution and the
evidence relating to the views of the police that the applicant supported
militants. As a result of the failure to consider this evidence, I am unable
to determine whether the Board's finding with respect to current country
conditions would be the same if it had analyzed the evidence about the two
areas. The Board found at page 5:
In light of the severely reduced
presence of Sikh militants in the Punjab, the panel also determines that there
is no more than a mere possibility that the claimant would suffer persecution
at the hands of the militants if he were to return to the Punjab.
Furthermore,
although there was documentary evidence of a reduced presence of militants in
the Punjab, there was no evidence of a reduction of police activity against the
militants. In fact, the evidence that indicates reduced presence of militants
and the court's attempts to provide compensation to people who had been subject
to police beatings specifically states that the police's defence was that these
actions were justified because it was the government's wish that the police
carry out such activities. The Board failed to consider the question of
whether the claimant would suffer persecution at the hands of police if he were
returned to the Punjab because it failed to analyze the effect of past
persecution and the police allegations of his involvement with militants.
Accordingly, the matter must be returned to a differently constituted Board for
redetermination.
With
respect to the issue of plausibility, in my view, the Board's finding was open
to it. The Board's finding on the IFA cannot be supported. Again, the Board
did not review all the evidence. The only evidence that the panel had on the
subject of the police searching for militants and their supporters indicated
that it was virtually impossible for a person to hide anywhere in India if
police in the Punjab were looking for them. Although there are no formal
communication methods available, it appears that there are many informal
agreements which enable the police in the Punjab to hunt down anyone they are
seeking. Because the Board ignored the applicant's evidence that the police were
looking for him as a supporter of the militants, I am not in a position to know
what the Board's finding would be on an IFA. The findings of the Board are
limited. The Board adopted the conclusion of the Board in another case. At
page 6, the Board quoted:
...there exists permanent, stable
and successful Sikh communities outside Punjab, and that it would not be
unreasonable for the claimant to integrate into one of these communities...
This
conclusion does not address the question of whether a person who has been
sought by the police in the Punjab can hide in one of these communities. The
applicant in the present case was able to leave the country by shaving off his
beard, having short hair and carrying a false passport with a different name.
It is much more difficult for a person to maintain an alias for a period of
time within the country if such person is really being sought by the police.
As I stated above, I cannot make such a finding and the matter will have to be
determined by a newly constituted Board.
I
am unaware whether or not there was any evidence with respect to the police
looking for a militant in the case cited by the Board. However, there was no
documentary evidence in the present case that contradicts the applicant's
documentary evidence that demonstrates that anyone who is being sought by the
police is not safe in another state. The Board had before it a response to an
information request from the Documentation, Information and Research Branch,
Immigration Refugee Board dated April 22, 1994. The following paragraph
appears at page 12:
During a telephone interview on 3
February 1994, a representative of Asia Watch in Washington, DC provided the
following information. Individuals who are wanted by the police in an
Indian state cannot find a safe haven in another state. There are no internal
flight alternatives for individuals who are known to the Indian authorities for
their anti-government activities. [emphasis
added]
In
light of the failure of the Board to deal with this evidence, the finding of an
IFA cannot stand. There was no contrary evidence that the respondent could
refer to me which would contradict the documentary evidence that demonstrates
that people wanted by the Punjab police are not safe in another state.
The
application for judicial review is allowed and the matter is returned to the
Board for redetermination by a differently constituted panel in a manner not
inconsistent with these reasons.
_____________________________________
Judge
OTTAWA, ONTARIO
July 29, 1997
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
COURT FILE NO.: IMM-3195-96
STYLE OF CAUSE: GURJEET SINGH SRAN
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: June 25, 1997
REASONS FOR ORDER BY: Mr. Justice McKeown
DATED: July 29, 1997
APPEARANCES:
Ms. Helen Luzius For
the Applicant
Mr. Goodwin Friday For
the Respondent
SOLICITORS OF RECORD:
Ms. Helen Luzius For
the Applicant
Toronto, Ontario
Mr. Goodwin Friday For
the Respondent
Dept. of Justice
Toronto, Ontario
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