Date: 20000404
Docket: IMM-3158-99
BETWEEN:
MAKHAN SINGH SIDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated June 2, 1999, wherein the Board determined that the applicant is not a Convention refugee.
[2] The applicant bases his claim to a well-founded fear of persecution in India on his religion, a perceived political opinion and membership in a particular social group, namely people wanting the independence of Punjab.
[3] The applicant, alleges that because of his religion, namely being an Amritdhari (baptized) Sikh, that he was perceived by the police as a supporter of a separate Khalistani state.
[4] The applicant"s brother was a member of the Akali Dal Mann party, a party that promotes the ideology of an independent homeland for Sikhs. In October 1993, the police went to the applicant"s family residence in order to arrest his brother. However, since the latter had gone to Canada (he fled India in January 1993 and has since obtained refugee status in Canada), he was arrested in his place.
[5] The applicant claims that he was tortured at the police station for a period of about ten minutes. Following the intervention of the village council, the applicant was released the next day.
[6] In December 1994, three of the applicant"s brother"s friends visited the applicant and remained for dinner. The applicant alleges that a few days later the police arrested him again accusing him of assisting militants. The applicant claims that he was tortured for approximately twenty minutes and kept in detention for two nights.
[7] Fearing more persecution from the police, the applicant stayed with friends until October 1996 when he could no longer bear the situation and decided to leave India for Canada.
[8] Essentially, the Board found that the applicant had not established by credible and trustworthy evidence that he would have a reasonable chance of being persecuted if he were to return to India.
[9] The Board found that the applicant"s testimony as to the repression based on his religious affiliation was not supported by the documentary evidence1 which indicates that Sikhs are no longer at risk for persecution as in the past. When confronted with this the applicant in fact admitted that he had never experienced restrictions on his worship.
[10] As to the applicant"s testimony regarding his political involvement, the Board found inconsistencies in his story, namely in respect to the dates he accompanied his brother on political trips and the extent of his involvement in the Khalistani movement, a point moreover omitted from his Personal Information Form (P.I.F.).
[11] Further, regarding the applicant"s fear of persecution as a result of his imputed political opinion, the Board took into consideration documentary evidence2 showing that only high profile individuals are at risk to conclude that the applicant was not at risk.
[12] Finally, the Board determined that the two medical reports3 produced in support of the applicant"s claim did not corroborate his story of torture since they did not mention the reason for the alleged treatment.
[13] The Board found the third medical report4 to lack credibility since it only mentioned the 1993 incident of torture (of shorter duration compared to that of 1994) and did not refer to the applicant"s knee problems (the area affected due to the alleged torture). The Board therefore held that the applicant had not been tortured and thus stated that it gave no weight to the remaining documents filed by the applicant.
[14] For these reasons, the Board rejected the applicant"s claim for refugee status.
ANALYSIS
[15] At the outset I would like to comment on the question of standard of proof applicable in determining the existence of a well-founded fear of persecution. In its reasons, the Board concluded that the applicant did not establish by credible and trustworthy evidence that" he would have a reasonable chance of being persecuted" if he were returned to India.
[16] Counsel submits that by using the word "would", the Board raised the standard of proof and thus erred in law. In support of his submission, counsel relies on Yeboah v. MEI.5
[17] However, in Yeboah the Court was concerned with the fact that the Board"s central question was whether the applicant would face persecution, and thereby requiring the applicant to establish that he would be persecuted. In the case at bar, the Board correctly assessed the question of how well-founded the applicant"s fear of persecution was in stating that the applicant would not have a reasonable chance of persecution. Thus I find counsel for the applicant"s argument on this point to be without merit.
[18] Counsel for the applicant submits that the Board based its decision on erroneous findings of fact as well as drew inferences that were not supported by the evidence before it. I do not agree. After examining the record I am of the view that the Board"s assessment of the facts were not unreasonable as to warrant to intervention of this Court. As such, I accept the conclusion of the Board that the applicant"s evidence was not credible in regard to his political involvement and alleged torture.
[19] Counsel for the applicant argues that the Board ignored current documentary evidence which was contrary to the "less-current" documentary evidence relied upon by the Board.
[20] In fact, counsel contends,inter alia, that a recent document entitled "Harassment of members of AISSF", Response to Information Request dated September 17,19986 which indicates that Khalistani activists and their family members remain at "significant risk" was ignored by the Board. Considering that the applicant"s status as the brother of a Khalistani activist was not in dispute, I am of the view that it was indeed unreasonable for the Board not to consider the relevance of this document.
[21] Although I agree that the Board, as a specialized tribunal, has the discretion to evaluate the documentary evidence and make reasonable findings of fact based on the evidence before it, it is unreasonable in my view to make no reference to a more current document provided by one of the experts accepted by the Board to be credible, and referred to in support of its finding that there was no risk of persecution based on religion. As a result, the Board committed a reviewable error warranting the intervention of this Court.
[22] In light of the foregoing I do not need to address the other grounds raised by counsel for the applicant.
[23] For the above reasons, the application for judicial review is granted. The file is sent back for redetermination before a newly constituted panel.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
April 4, 2000.
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1 Exhibit A-13: Response to Information Request, A-4:US Department of State, India Country on Human Rights Practices for 1998.
2 Exhibit A-2(1.1a): Response to Information Request.