Federal Court Decisions

Date: 19971231

Docket: IMM-448-97

BETWEEN:

     GILL, JAGDIP

     KAUR, SEVINDER

     GILL, SATINDERPAL SINGH

     GILL, MANDEEP

     GILL, KAREN

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

LUTFY J.:

[1]      In October 1992, the father and, in July 1994, the uncle of the applicant Satinderpal Singh Gill died, apparently as the direct result of the intervention of the police authorities in the Punjab region. Both were suspected of assisting Sikh militants. This applicant was also the target of police investigations and was himself detained for some two weeks in July 1994. In the latter part of 1994, as a result of these events, the applicants, which include Mr. Gill's mother, sister, wife and daughter, sought refuge in Canada.

[2]      Their claim for refugee status was denied by the Convention Refugee Determination Division. The tribunal's principal finding is twofold: (a) the applicant Satinderpal Singh Gill would not have been released in July 1994 if the police officials considered him "to be worthy of further attention"; and (b) the improved change in circumstances in Punjab.

[3]      In concluding that there has been "considerable changes for the better in Punjab since the tragic death of the male head of the family in 1992", the tribunal relied extensively on documentary evidence completed in November 1995 and published in February 1996 by the Research Directorate of the Immigration and Refugee Board concerning Sikhs in Punjab in 1994 and 1995. It is useful to cite at length the relevant portions of the tribunal's decision concerning the change in conditions:

The claimant's subjective fear is not in accord with police practices and conditions prevailing in his home state since peace has returned to Punjab bringing with it a resurgence in social, political and economic life. The Punjab economy, which remained functional even during the worst of the fighting, has been booming in recent years. Democratic elections have been held at the state, local, and national levels. As well, deaths as a result of the militancy, dropped off considerably after 1992.

The National Human Rights Commission (NHRC), after its appointment in October 1993 and visit to Punjab in April 1994, recommended that strong punitive action be taken against police convicted of human rights violations, that police stop using unlicensed vehicles which have been implicated in "disappearances," that the state government consider publishing a list of suspects wanted by the police in order to avoid arbitrary arrests, and that a state Human Rights Commission be set up.

In the last few years, many people have brought petitions to the Punjab, to Haryana High Court and to the Supreme Court regarding past abuses in Punjab, including petitions with respect to disappearances and alleged false encounter killings. In several instances, the courts have ordered investigations by the Central Bureau of Investigations and, in some cases, these investigations have led to criminal prosecution of Punjab police officials and compensation being paid to the surviving families. This suggests the claimant's [sic] could have sought redress for the loss of the head of the household at the hands of the police.

In an effort to improve the human rights record of Indian security forces, human rights training, involving organizations such as the International Committee of the Red Cross (ICRC) and the NHRC has begun in India. In May 1995, the NHRC reported that it had begun canvassing different states to find out what kind of human rights training is now offered for police. That same month, the NHRC convened a one-day meeting of directors general of police to begin the process of building a model syllabus for police human rights training.

In May 1995, the Indian government allowed the Terrorist and Disruptive Activities Prevention Act (TADA) to lapse. TADA was enacted in 1985 to give security forces increased powers to fight terrorism in Punjab, and is no longer a tool behind which they can hide abusive activities.

The assassination of Punjab's chief minister, Beant Singh, on August 31, 1995, does not necessarily signal a resurgence of militancy in Punjab as shown in the genuine outpouring of grief at the chief minister's funeral and the popular discontent with violence after the militant unrest.

All of this evidence suggests that with the principal claimant's profile, as a peaceful and successful farmer who has a long time family connection with the Akali Dal, a legitimate and major Sikh based Punjabi political party, he should have no serious difficulty in returning in safety to Punjab without a reasonable chance of facing treatment of a persecutory nature. [References omitted.]

[4]      I have reviewed the documentary evidence upon which the tribunal's reasons are based. I have also reviewed the transcript of the applicants' testimony and the written submissions filed on their behalf after the hearing. The documentary evidence discloses improvements in India generally and in Punjab in particular. There is also reference to ongoing abuses of human rights. The tribunal chose to rely more on the positive developments in 1994 and 1995 than on the improvements that had yet to be achieved. While another panel could have reached a different conclusion, it was open to this tribunal on the basis of its review of the evidence to decide as it did. The Court of Appeal made clear in Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11, that changed circumstances constitute a question of factual determination by the tribunal.

[5]      In Singh v. The Minister of Citizenship and Immigration, [1996] F.C.J. No. 1511 (QL), the application for judicial review was dismissed where, in January 1996, the Convention Refugee Determination Division also concluded that "militancy in Punjab has virtually disappeared and the police now focus more on the arrest and pursuit of known militants". In that case, the panel went on to find that, apart from the change in conditions in Punjab, there existed an internal flight alternative in India.

[6]      In my view, the applicants have failed to establish any reviewable error in the tribunal's decision. Accordingly, their application for judicial review must be dismissed. The tragic circumstances which led to their seeking refuge in Canada may be factors which the respondent will take into consideration in any assessment of the humanitarian and compassionate reasons for allowing them to remain in Canada.

[7]      Neither party has suggested the certification of a serious question.

    

     Judge

Ottawa, Ontario

December 31, 1997