Federal Court Decisions

     IMM-1353-96

B E T W E E N :

     RAVINDER SINGH THIARA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

MacKAY J.

     This application for judicial review of a decision of the Convention Refugee Determination Division, dated March 28, 1996, came on for hearing in Toronto on February 18, 1997 when decision was reserved. Having had opportunity to review the record, in particular the transcript of the panel's hearings, and having considered further the submissions of counsel made at the hearing, an Order goes allowing the application for judicial review. These are Reasons for that Order.

     The applicant is a Sikh, a native of the Punjab in India, born in 1949. His wife, who is a teacher, his two sons, his parents and sisters continue to live there. The applicant completed grade 10 education in 1964 and worked for two years on his family farm. He then joined the army and served for fifteen years until the summer of 1982 when he was discharged. He continues to draw a pension for his military service. After his discharge he returned to the family farm and then joined the police in the Punjab as a constable. He served with them from 1986 to 1990. In the early years, because of his participation in police sporting events, he was apparently not required to undertake full police duties.

     In January 1989, he says that for the first time he observed four prisoners who had been tortured, and upon inquiry he was told by fellow officers that they were extremists who would be killed in a false encounter. He was assigned to a party of police to participate in false encounters but he refused to obey the instructions and instead went to see the superintendent and offered his resignation. That was refused. He said that he sought to resign on numerous other occasions including once when Sikh militants visited his family and threatened them if he did not leave the police force. He was still not permitted to resign. Then in 1990, he again requested to resign because of domestic problems and his request was granted in September of that year.

     He returned to work on his family farm. In June of 1992, militants from his own village visited him at the farm and asked for his support and assistance because of his military training and his experience with the police force, a request which he says he refused although they threatened to kill his family. In August, 1992, he was arrested by the police on suspicion he was working with the militants and providing them with military training. He protested that he was not so doing, although he admitted that he had been visited a few months earlier by militants who asked him to help with training. The police detained him for three days during which he was beaten. After his release he remained in bed recovering for three weeks. Then, fearful of both the police and the militants, he went to other areas of the Punjab where he remained until August 1993. While he was away, both the police and the militants visited his family farm, the former ordering that he report to the police station upon his return, and the latter threatening to kill his family if he did not provide militants with military training. In September 1993, he returned home because his mother was ill. He was again arrested and severely beaten but was released when the village council came to his assistance. He then left India, came to Canada, arriving in February, 1994 and claimed refugee status. He believed he would not be able to live in safety in Punjab or in other parts of India. After he came to Canada, the police continued to visit his home asking for him.

     In its decision, the panel found that there was not a basis for excluding the applicant on the grounds set out in the United Nations Convention concerning refugees which are included as a Schedule to the Immigration Act, R.S.C. 1985, c.I-2, as amended. Further it found that the applicant's evidence, insofar as it was relevant for his refugee claim was not credible or trustworthy for reasons set out in its decision, some of which are challenged on the basis that they mistakenly record facts which are not supported in the evidence. In the alternative, the panel found that even if there were a basis for finding that the applicant had a well-founded fear of persecution in the Punjab, it was not unreasonable, in all of the circumstances, for him to find an internal flight alternative ("I.F.A.") in parts of India outside the Punjab. That conclusion is also challenged in this application for judicial review.

     A preliminary challenge to the Board's decision is based on the applicant's submission that the panel erred in law in failing to provide a fair hearing. It is said the panel was not impartial, that the Presiding Member demonstrated bias against the applicant and his counsel by aggressive questioning which precluded fair presentation of the applicant's case for consideration. When this application was heard, counsel for the applicant and for the respondent Minister agreed that if the applicant's submissions on this ground were upheld, and the Court concludes that the hearing was not a fair and impartial one, then the application should be allowed and the claim referred back for reconsideration by a new panel.

     The circumstances of the hearing were substantially affected by considerations arising from a statement included in the applicant's Personal Information Form, ("PIF"), referring to violence against young Sikhs by police officers. That statement was in the following terms:

...as a constable, I have seen that the police was using very harsh measures to crush the secession movement. There were many young Sikh males who were detained and tortured illegally in the police stations. I was asked by senior police officers to kill militants in faked encounters, which I always refused to do. I became scared of what was happening. ...

...my resignation was accepted and I left my job in September, 1990. I returned to my village and started farming again. I was very happy that I no longer had to torture innocent Sikhs in the police stations or kill them in fake encounters. (Emphasis added)

The last sentence, which I have here underlined, raised considerations whether this was a case where an applicant for refugee status ought to be excluded on U.N. Convention grounds in the Schedule to the Act, that "...there are serious reasons for considering that ... he has committed a crime against peace, a war crime, or a crime against humanity...". Because of this consideration a representative of the Minister was present at the hearing as well as a Refugee Hearing Officer to assist the hearing panel. Counsel for the applicant at the time of the first hearing, on April 25, 1995, was a student at law, who had joined the bar before the second session of the hearings, which had been adjourned and were completed at a second session on October 13, 1995.

     At the commencement of the first hearing, before testifying, the applicant swore that the statements in his PIF were true. When the matter of the sentence underlined above was raised in the course of the hearing, it turned out that his counsel, who spoke Punjabi, had drafted that statement and both the applicant and his counsel urged at the hearing that what the applicant had said at the time of preparation of the PIF was that "he was happy he would no longer be asked to torture innocent Sikhs..." Ultimately the Board accepted that the statement in the PIF was in error, and that it had been made by counsel, not by the applicant.

     The transcript of the first session of the hearings is reproduced in 47 pages. Pages l to 8 are essentially introductory, relating to the nature of the hearing and its purposes, the introduction of the parties and representatives as well as an interpreter and the introduction of documents. Pages 8 to 19 concern direct testimony of the claimant, including interruptions to which I shall return. Pages 22 to 47 then contain questions by the Minister's representative and answers by the claimant with no substantial interruption by members of the panel. On the second occasion, in October, there was no direct testimony from the applicant, although he responded to questions from the Refugee Hearing Officer from the panel and from counsel in reply.

     At the first hearing, after the introductory proceedings the panel adjourned briefly for a prehearing conference, then the Presiding Member advised the applicant of the issues which were agreed upon as matters of concern for the hearing. He advised that the story in the applicants's PIF would be accepted as if it had been given in oral testimony and that the applicant's counsel would ask questions concerning relevant aspects of the claim, including the causes of the applicant's fear of persecution. He further advised that the panel would ask questions if it found it necessary to test his credibility.

     Then counsel for the applicant proceeded by questions to have the applicant confirm personal information given in his PIF, e.g. his name, age, place of birth. Counsel then turned to his experience in the police force, how he came to join it. In his response the applicant indicated that he participated in police games on behalf of the police department, he was asked what games he had played in India, and the applicant dealt with that and then continued to describe duties that he undertook with successive posts in the police force, including for a time that his responsibilities were to look after the police mess, by which I assume he meant their eating quarters. At that point the presiding member intervened to say:

... We don't want to hear all that, Counsel. I think you will have to direct him today to the -- what he observed in relation to the harsh measures by the policemen. That is what we want.

COUNSEL:      I think my friend wants to know the duties he did in the four years he served in the police force so if Mr. RHO is not interested in that, I can go straight.

PRESIDING MEMBER:      I don't want the history of his duty.

RHO:      Briefly, Counsel, it was my position that it may assist the Panel in putting things in context, if we understood what the Claimant did in the police force and with whom he dealt.

PRESIDING MEMBER:      Yes, but we are receiving evidence on the mess and all these things. What relevance is that?

COUNSEL:      I think this is part of his duty that he was not involved in and other stuff -- doing mess duties and, you know, other duties. This is the duty he did in the four years in the police force. I think we should have went right to the part of Exclusion Clause that he was involved in anything wrong or ---

PRESIDING MEMBER:      I see, okay.

COUNSEL:      So I will try to make little shorter.

PRESIDING MEMBER:      Yes.

COUNSEL:      Yes, we will try. ...

     Counsel then asked further questions about duties of the applicant in the police force. The applicant spoke of his transfer in October, 1987 to another police area, participating in further police games, and his responsibility for stores and issuing uniforms and equipment to police personnel. After a year he was transferred to another district where for the first time he saw four or five persons who were badly tortured. Then followed questions and answers about that observation of tortured persons, the applicant having been requested to participate in killing or torturing people, and his request to resign. He described subsequent duties with the police in another posting, and his further requests to resign, one of which was finally accepted in September of 1990. Then followed this exchange:

COUNSEL:      ...before you go further, I want to ask you like, when in '89 when you were in police station Bholath, they asked you to torture and kill people and you refused. You offered the resignation but it was not accepted. After that ---

PRESIDING MEMBER:      You know, Counsel, you're putting it in a way that he was asked to torture people for some time. That is not what the man was saying. You have to put the evidence as it is. He was asked on one occasion.

COUNSEL:      That is what I'm trying to -

PRESIDING MEMBER:      He saw four people in the cell who looked as if they were badly beaten and tortured.

COUNSEL:      I'm trying to ---

PRESIDING MEMBER:      No, no, listen to me. And then people in the station told him that they are terrorists and they would be killed and he was asked to take part in that. For that -- it is that incident that caused him to report twice and he was transferred. So you're putting it to him when he refused to take part in torturing and killing people assume a different proportion altogether and this is how the -- this form is reflected. The man's story is completely different than what is stated here, so please don't put that to him.

COUNSEL:      Mr. ---

PRESIDING MEMBER:      Ask him, when they told him on that occasion, when they told him he had to take part in torturing people and killing them ---

COUNSEL:      Um ---

PRESIDING MEMBER:      --- if he took part in those incidents.

COUNSEL:      Honourable Panel, my concern was about his attempts of resignation. So I was trying to put the same words he said, maybe I mistake (INAUDIBLE) being regarded. So I will try to correct those things where there's confusion or something.

PRESIDING MEMBER:      It's misleading. ...

     The Presiding Member then turned to a few questions relating to the applicant's participation in any killing or torture activities and he denied participating in any. Thereafter there was the series of questions and answers:

PRESIDING MEMBER:      Yes, Counsel.

COUNSEL:      Thank you, sir, I will try to, you know, (INAUDIBLE) anything that's not clear, but in my understanding that is what he said and I hope we have Mr. RHO or Mr. Dombrady here and they're listening to the testimony as well.

Mr. Thiara, you testified that in January, 1989 you offered your resignation and they didn't accept your resignation.

CLAIMANT:      Yes.

COUNSEL:      After that did you try to resign again from the police force?

CLAIMANT:      I did this, I offered my resignation to the SSP two times that, please accept my resignation, I don't want to continue in the service.

COUNSEL:      I understand that your resignation was accepted by Mr. Arjeet (ph) Singh?

CLAIMANT:      Yes.

COUNSEL:      And what did you do after that?

CLAIMANT:      I was happy that I did not have to spend most of my time with them, with those who were killing men. I was very happy and relieved that I had come back home.

PRESIDING MEMBER:      Now, you said in your Personal Information Form, "I was very happy that I no longer had to torture innocent Sikhs in police stations or kill them in fake encounters." What do you mean -- what you meant by that?

CLAIMANT:      I didn't mean to convey that I was killing men earlier, I -- what I meant to say was that I was basically a sportsman or a gamer, I was playing games and I was -- I was paid to see if any of the policemen were indulging in those activities and it was a pain to my conscience, therefore I was very happy that I didn't have to be with them and work things like that, not that I had never killed anyone before.

PRESIDING MEMBER:      Well, this is what you said in your Personal Information Form and you said it was true and correct.

COUNSEL:      I ---

PRESIDING MEMBER:      Yes, Counsel?

COUNSEL:      I think that he explained those two lines you are concerned about and I want to draw your attention to line 49 and 49 which is very clear, which is before those two lines where he mentioned that, you know, that I was -- that I -- that's line 43 ---

...

PRESIDING MEMBER:      Who prepared this form for you?

COUNSEL:      Yes, unfortunately, I was a law student there and being the same Punjabi spoken guy -- so I have -- I had to interview him because he was speaking Punjabi, I understand Punjabi and we translated this and, you know, this is a problem. I understand this is what he was saying, this is what I put. But actually his (INAUDIBLE) was explained under oath before the Panel. Line 43 ---

RHO:      Counsel, you're giving submissions here, I'm sorry.

PRESIDING MEMBER:      Yes.

COUNSEL:      I'm just trying to answer the question ---

PRESIDING MEMBER:      He's a student-at-law so you have to give some latitude.

RHO:      I recognize.

PRESIDING MEMBER:      But you have put here things that you said the man didn't tell you. "I was very happy that I no longer have to torture innocent Sikhs in the police stations or to kill them in fake encounters." What, you were sleeping when you wrote that?

RHO:      Pardon me, we're asking Counsel to explain his own conduct, as an Interpreter here he certainly is in a very unenviable situation.

PRESIDING MEMBER:      Yes, I understand.

RHO:      You're asking him to testify. I don't know if we can do that fairly, to him.

PRESIDING MEMBER:      No, we're not asking him to testify, he's projecting a new meaning to words that have been written here which he, himself compiled. So I'm not asking him to give evidence. He said the man gave him his story in Punjabi. He wrote it down and then read it over to him and that's how he signed it. But today, what the Claimant is saying that except for that one occasion when he was asked to join the body of policemen who take part in torturing Sikhs in fake encounters, he had -- he had no other experience. He kept complaining. Anyway, the Minister Representative will get into that.

COUNSEL:      Thank you, sir. Now, Mr. Thiara, after resigning from the police force, what did you do?

A. I started doing my farming on the village land, sir.

RHO:      Pardon me, does the Panel wish to go through the various different details of the contact with police, or militants, from the time of his resignation, right through until he left the country? How far, Counsel, do we want to go into detail here? Or do we have enough information here that you might simply cut to the chase, as it were, and address the issues of the current fear, who is feared currently?

PRESIDING MEMBER:      Right.

RHO:      And, also, internal flight. But, again, these are your -- this is your case to call, certainly, Counsel. At the same time, the Panel will indicate to you which areas are of particular interest.

COUNSEL:      Yes, that may be a sensible approach.

PRESIDING MEMBER:      But, you see, some of the credibility of some of these incidents may be in issue, because he was ---

COUNSEL:      He had problems with terrorists at the time. According to the documentary information that was not in ---

PRESIDING MEMBER:      Well, let us ask him what he fears if he returns now. And we will ask questions on the other portions, if need be.

COUNSEL:      So you don't want to ask questions about that incident, in order to have -- you are satisfied with the testimony on that?

PRESIDING MEMBER:      Not if you are satisfied with it. But we accept it as testimony. We will ask questions to -- to test its credibility. But you can ask him what he fears if he returns now.

COUNSEL:      Only in terms of that issue, I'll ask one or two questions.

     Counsel then asked Mr. Thiara some questions related to whether he had told people of his observations of tortured prisoners held by the police, and whether he feared persecution in areas of India outside the Punjab. Counsel then asked about the "'84 riots" because the applicant had made reference to his observation of the treatment of Sikhs at that time. Thereupon the Refugee Hearing Officer intervened to say:

COUNSEL:      You were talking about the '84 riots, can you give me anymore information about what happened on the '84 riots?

RHO:      Pardon me, Counsel. The Panel is well aware of the history of India and what may have happened back in 1984, but I don't think that strictly your address -- or consider your questioning too much, but at the same time we must ask what the potential relevance of this line of questioning. But again, does the Panel have any preference as to how Counsel may ---

PRESIDING MEMBER:      I thought we had agreed that the question would be placed that what he fears if he returns now. I think the RHO is correct, we understand what took place in 1981?

COUNSEL:      It's my point just to get clear the agents of persecution. I know the Panel is well aware about the history of India in '84 I'm just getting testimony about the agents of persecution.

PRESIDING MEMBER:      Yes, all right.

A few more questions were then asked by counsel concerning the applicant's fears if he were returned to India.

     The panel then took a brief recess. Upon its return, counsel for the applicant moved, with respect, that the presiding member remove himself from the panel on grounds that he was too aggressive towards counsel. His body language and attitude were said to be too aggressive, leaving counsel uncomfortable in representing his client before the panel. Counsel advanced this motion on instructions from his principal with whom he had contact by telephone during the recess. In the view of counsel there was a reasonable apprehension of bias for the applicant in continuing the hearing with the presiding member present.

     The RHO, the Minister's Representative, and the other panel member all agreed that the presiding member had not demonstrated bias. After each of them had been consulted, the presiding member dismissed counsel's motion. The presiding member commented that he understood the position taken by counsel on instruction of his principal and then commented, "In any event, if there was any apprehension of bias, it may be against you, not the client. But there was none really ...". I note that if there was bias, or the reasonable apprehension of bias, against the applicant's counsel, that can be a legitimate ground of complaint by the applicant.

     The hearing continued. That was the end of the direct examination of the applicant, which as noted, required only some thirteen or fourteen pages of transcript at the first hearing, including the four pages or more reproduced in these reasons. Thereafter, the Minister's representative proceeded with questions with virtually no interruption by the panel.

     Near the end of the second hearing in October, after questions by the presiding member of the panel, counsel for the applicant raised two questions, in reply, concerning general observations of the applicant concerning current conditions in the Punjab. In his response the applicant referred to a particular law, which the R.H.O. and the presiding member indicated had been repealed. To that the applicant responded that even if that were the case police would still have extra powers given by the government, but no law that he was aware of authorized or directed killing of persons by police. To this the presiding member commented:

Yes, all right. I don't want a lecture. I'm sorry, we cannot - we're not a university, this is a Hearing...

Conclusion

     In my view, reviewing the transcript as a whole, particularly that portion including his direct examination, I conclude that the applicant was denied a fair hearing. I appreciate there may be a fine balance between controlling a hearing, while permitting opportunity for reasonable presentation of the applicant's case, and intervening too much. In the circumstances here, it seems to me that the applicant and his counsel were not given a full and fair opportunity to present the case. The panel clearly directed questions to certain matters only and yet, as I read its decision, its determinations concerning credibility, in relation to incidents concerning the alleged arrest of the applicant, deal with matters about which the panel obviously had some difficulty, but which they had directed in the hearing that the applicant not be questioned about in his direct examination.

     It is my conclusion that the panel here went too far. During the hearing, the balance tipped to undue interference by the panel and, in my view, there was not a full and fair opportunity for the applicant to present his case.

     The decision of the panel is set aside and the matter is remitted to the C.R.D.D. for reconsideration by a new panel in accord with the law.

     _______________________________

     JUDGE

OTTAWA, Ontario

March 6, 1997.