Date: 20010420
Docket: IMM-2613-00
Neutral Citation: 2001 FCT 344
Between:
KARAMJIT SINGH
Applicant
- and -
THE MINISTER OF IMMIGRATION
AND CITIZENSHIP
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated May 2, 2000, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant is a 22-year-old Sikh farmer from the Punjab, India who claims to have a well-founded fear of persecution due to various circumstances arising in his past. In India, he worked on the family farm in Malwali, Nakodar. His father was the head of the Gudwara and the claimant worked as a Sewadar at the Gudwara. The following facts are taken directly from the Board's decision:
The claimant's father was arrested and detained illegally by the police in 1993 and 1995. In February 1995, he disappeared.
On September 1st, 1995, the claimant was called in at the police station and questioned about his father, his friends . . .. The police accused the claimant of hosting these suspected militants. The claimant was tortured and detained for two days.
The payment of a bribe by his mother secured his release on September 3, 1995.
On September 27, 1996, the claimant was called to the police station where he was asked to identify militants. . . .
The police also suspected the claimant of being recruited by his uncle Baldev Singh.
The claimant was released after two nights of detention with the help of the village council.
On March 17, 1997, the police raided the claimant's house. The claimant was arrested, detained for one night and beaten by the police. The claimant was beaten to confess his knowledge regarding his uncle Baldev Singh and his militant friend involved in the bomb blast in Jalandhar.
The claimant was released the next day with the help of the village council.
During 1997, the claimant's friend Ranjit Singh, . . . went underground. The police . . . raided the claimant's home in September and October 1997. They interrogated the claimant on Ranjit Singh's whereabouts and on his uncle Baldev Singh.
The claimant was arrested again on March 16, 1998, and questioned on both of them. The claimant explained to the police that he had not seen Ranjit Singh and that Baldev Singh had moved to Canada.
The police did not believe the claimant and tortured and sexually abused him.
The claimant was released on March 18, 1998.
Upon his release, the police took his fingerprints, photograph and forced him to sign blank papers. The police ordered him to report to the police station on a monthly basis.
Concerned for his safety, the claimant moved to Ludhiana.
While in Ludhiana, the claimant learned that the police raided his house on April 15, 1998, after he failed to report to the police station.
The claimant moved to New Delhi were arrangements were made for him to leave the country.
The police raided his house in May and June 1998 looking for him.
In June 1998, the claimant's mother divulged the claimant's whereabouts in New Delhi after being beaten by the police.
The police raided the claimant's residence in New Delhi looking for him.
[3] The claimant left India on August 16, 1998 and claimed refugee status in Canada on the following day.
[4] The Board found that the applicant is not a Convention refugee. The Board's relevant findings are as follows:
- According to the evidence, people who are not high profile militant suspects or are simply family members of high profile suspects are not at risk in the Punjab today.
- Further, as both the claimant's uncle and father disappeared in 1995, it is "highly improbable" that the police would continue to consider them militants or target the claimant because of their alleged "illicit" activities, of which they would have no evidence after 1995.
- Finally, if the police's goal was truly to have the claimant admit his ties with the militants, as he alleges, they could have obtained it easily by drafting a confession on the blank papers he had signed. Instead they released him. This account is highly improbable and illogical.
[5] Aside from drawing two somewhat arguable negative inferences (the Board concluded that it was "highly improbable" that the Punjab police would continue to target the applicant after his father and uncle disappeared. This conclusion has no solid basis, as there is no evidence of what the procedure is with respect to inactive files in India, and it ignores other reasons for targeting the family, such as "personal vendettas" or the fact that he may have been perceived as a "seed for future rebellion" (Immigration and Nationality Directorate's Report,Tribunal Record, A-3, pages 108 and 109). Further, the Board's inference with respect to the signed blank sheets is mere speculation - there is no indication on file as to whether the sheets had already been put to use or of what their intended purpose was), the Board did not point to a single contradiction or inconsistency in the applicant's evidence. In such circumstances, I have some difficulty accepting that the Board be allowed to discount the applicant's personal account of persecution on the basis of more general documentary evidence.
[6] In Okyere-Akosah v. Minister of Employment and Immigration (1992), 157 N.R. 387, the failure to give explicit reasons for preferring the documentary evidence over the direct evidence of the claimant was problematic, particularly in light of the absence of specific findings on credibility and the Board's failure to consider all the evidence. The Federal Court of Appeal stated, at page 389:
. . . Since there is a presumption as to the truth of the appellant's testimony (Ranjit Singh Thind v. M.E.I. (27 October 1983), A-538-83 (F.C.A.) at 2.), the Board was bound to state in clear and unmistakable terms why it preferred the documentary evidence over the appellant's testimonial evidence (see Hilo v. M.E.I. (1991), 130 N.R. 236, at 238-239 (F.C.A.)). It did not explain why it retained statements found in the June 18, 1989 edition of the magazine West Africa while ignoring its edition of November 20-26, 1989 regarding the ban of three other churches and the protest of prominent religious leaders in Ghana. The Board's comments with regard to the minor role played by the claimant in his church and his ignorance of certain important characteristics of his church remain unexplained considering that the Board did not cast any doubt upon the claimant's credibility. The only comment by the Board was that "the testimony given by the claimant appeared ... to be rather vague and often made up of generalities which reflected the general nature of certain situations in Ghana but not the claimant's individual, personal story" (A.B. at 198). Yet, no comments were made as to what the Board believed or disbelieved in the claimant's story.
(My emphasis.)
[7] As emphasized by Reed J. in Kansadamy v. Minister of Citizenship and Immigration (November 5, 1997), IMM-4730-96, the preference of documentary evidence to an applicant's testimony, in itself, is not sufficient to invalidate the Board's decision. Nonetheless, Reed J. makes the following observations:
. . . The danger in preferring documentary evidence over an applicant's direct evidence, is that documentary evidence is usually general in nature. An applicant's recitation of what occurred to him or her, is particular and personal. Thus, without some clear explanation as to why the general is preferred over the particular one may doubt a conclusion that is based on a preference for the former over the latter. . . .
[8] As for the documentary evidence in the case at bar, I also have some difficulty reconciling the Board's decision with the Country Information and Policy Unit (Immigration and Nationality Directorate's Report, supra), which discussed the current human rights situation in Punjab. The first paragraph seems to support the Board's findings, but upon reading further, one discovers the many exceptions to the general rule:
5.6.52 . . . People who are not high profile militant suspects are not at risk in Punjab. They have much less to fear from the police and now have better access to judicial recourse if they are treated improperly.
5.6.53 The DIRB also interviewed representatives of three human rights groups which work in Punjab, and one human rights lawyer from Punjab. All were agreed that the human rights situation in Punjab had improved since the violence between 1984 and 1995. However there had been two recent cases of disappearances: . . . Torture and ill treatment in custody remain serious problems, but his was said to be a problem throughout India, not just in Punjab.
(. . .)
5.6.57 However Dr Mahmood points out that human rights abuses continue to occur in Punjab, the police and still out of control in many areas, and human rights workers have themselves been targets of harassment and abuse. . . . Dr. Mahmood concludes that the current improvement does not present a durable and fundamental shift in the Indian human rights climate.
5.6.58 Sikhs do not constitute a persecuted group at the present time, and rank and file members of groups that were at one time targeted eg the AISSF, are in general terms now safe. There are exceptions such as people with a local history of abuse at the hands of the police, who may continue a personal vendetta; and militants together with their close relatives and supporters who continue to be followed as potential seeds for further rebellion.
(My emphasis.)
[9] For all the above reasons, I find that the Board did not consider the totality of the evidence before it and this application is therefore allowed. The decision of the Board is quashed and the matter is remitted for rehearing by a differently constituted panel.
JUDGE
OTTAWA, ONTARIO
April 20, 2001