Date: 20010323
Docket: IMM-3240-00
Neutral citation: 2001 FCT 238
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] The single-member panel of the Convention Refugee Determination Division determined that the applicant, Gurcharan Singh, a 23-year old Sikh from the Punjab and a citizen of India, was not a Convention refugee.
[2] Mr. Singh claims to have a well-founded fear of persecution by the Punjabi police because of his perceived political opinion. The issue of his membership in a particular social group was not raised in this judicial review proceeding.
[3] At the end of the refugee hearing, immediately prior to oral submissions, the panel member indicated that the applicant was "a good witness". His reasons for decision note that credibility was not in issue. I conclude from this that the information in the applicant's personal information form and his oral testimony were accepted by this panel as truthful.
[4] The tribunal decision summarizes the five occasions when the applicant was either arrested, questioned or tortured by the police between December 1994 and January 1998:
... Each time, the police suspected him of having ties with terrorist militants and each arrest followed terrorist actions perpetrated or planned in his region or elsewhere in the Punjab.
On December 20, 1994 there had been an exchange of gunfire between terrorists and the police near the Temple where the claimant, his father and a few members of the Temple Committee were; the police arrested them and held them for two days.
On September 1, 1995, just over a week after the murder of Beant Singh, Prime Minister of the Punjab, the claimant was detained and questioned about the subject.
On April 26, 1996, the day before the legislative election, he was questioned about the militants' plan to interfere with the voting process.
On March 14, 1997 a bomb exploded in the Jalandhar train station. The claimant, who had been hiding in this city since his latest discharge, was arrested by the police after his parents told them his whereabouts. The police tortured him to get him to admit that he helped the terrorists transport weapons and explosives. Having admitted to nothing, he was released on March 20.
On January 25, 1998 he was again arrested. The police wanted to make him confess to his participation in a terrorist plot related to the selective murders of important persons.
The claimant said that he had never engaged in politics and had never had ties with the terrorists, and that his only misfortune was to have been at the Temple on the morning of his first arrest in December 1994.
He stated that with each arrest, the police tried to get him to admit that he had ties with the terrorist militants. He was never taken to court and was released each time on payment of a bribe to the police by his family.
[5] In his personal information form, the applicant described more fully his arrest, detention and torture in December 1994:
The police beat me to get information with [sic] I did not had [sic]. The police beat the palms of my hands, soles of my feet and pulled my legs. I became numb after this, as I felt a click in my groaning joints. After that I was thrown in one corner. I remained their [sic] unable to move to do anything. One doctor came, checked me and left after writing some medication on a piece of paper. I was kept for two nights and released on December 22nd, 1994.
[6] The applicant was questioned during the refugee hearing concerning the reasons for his December 1994 arrest and his interrogation concerning his knowledge of Sikh militants:
Q. So, what happened exactly in December of 1994?
A. On 20th of December 1994, there was an encounter between the police and the militants to the Muda Wali (phonetic) side from the temple, on one side of the temple.
...
Q. What were you doing at the Gurdwara at that time and what was your father doing at that time (inaudible)?
A. At that time, the... the ceremony had been completed and we were cleaning up. We were cleaning up and after that we felt that we would tell the priest and we would leave, by that time the police arrived.
...
Q. And why were you arrested?
A. They searched the whole village, they were not... they were unable to find anything from the village, they arrested myself, my father and other committee members.
...
Q. Okay. Have you been interrogated there?
A. Yes, when we were there, we were put in separate rooms and I was searched and then they asked me questions.
Q. What kind of questions were they asking you?
A. They said... they said that I knew... they accused me that I knew that the militants had come from the temple, that these militants had come from the temple and that I was not telling them and that I was helping them.
[7] While he accepted the veracity of the applicant's evidence, the panel member concluded that the arbitrary and sometimes brutal acts of the Punjabi police were unrelated to any of the five reasons for persecution set out in the definition of a Convention refugee. In particular, he found that the arrest, detention and torture suffered by the applicant were not linked to the political opinion imputed to him by the police. Rather, the panel member understood the motives of the police officers in the context of maintenance of law and order, greed and persecution.
[8] Concerning maintenance of law and order, the panel member noted that: "... if the torturers were only after a confession to criminal acts, this would not constitute persecution for one of the reasons set out in the definition of a refugee." However, there is no evidence to suggest that the police targeted the applicant to obtain his confession to criminal acts. In his personal information form and throughout his testimony, the applicant consistently stated that he was being questioned for his possible knowledge of the identity of the militants or for harboring them. He was not accused of having committed terrorist acts himself.
[9] In Ciobanu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 117 (QL) (T.D.), Justice Rouleau considered the situation in post-communist Romania where the applicant complained of decisions by governmental authorities concerning the distribution of land confiscated under the communist regime. The applicant was then interrogated and beaten by police officers. One month after he went into hiding, the applicant's spouse was raped by another police officer. Justice Rouleau concluded that the applicant's actions were not political but were aimed at protecting his personal interests:
Likewise, the treatment meted out to the applicant does not demonstrate a political campaign against the applicant by the authorities. He was never detained for more than 24 hours. The police obtained a warrant before conducting the search. Other demonstrators were also interrogated. The investigation appears to have been conducted in compliance with Romanian law. The applicant was beaten; however, as the panel stated: "[Translation] [P]olice stupidity and immature investigation techniques do not invariably warrant recourse to international protection in the absence of credible proof of a desire by the police to persecute." Finally, the record does not indicate that the female applicant was raped on account of her husband's actions. She appears to have been the victim of an isolated crime.
In Mr. Singh's case, it was inappropriate, in my view, for the panel to rely on Justice Rouleau's statements concerning a dispute over land in post-communist Romania to justify the torture and other arbitrary actions by the Punjabi police against a young Sikh first arrested in a temple in December 1994.
[10] The tribunal, after referring to the documentary evidence concerning the violence in the Punjab between 1984 and 1994, concluded as follows:
In this context, it is not surprising that the police arrested the claimant every time a terrorist act was committed or was about to be. Each time, of course, the police used their usual means of investigation, i.e. torture, brutality and intimidation.
[11] It would have preferable, in my opinion, for the tribunal to have relied on the analysis by the Supreme Court of Canada in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, where China's population policy was in issue. The Court was reluctant to pronounce on the merits of that policy and acknowledged that there may well be appropriate means for a country to achieve the objectives of its policy without infringing basic human rights. Justice La Forest noted, however, that there is a point where the implementation of the policy may violate the security of the person and can constitute persecution (at paragraph 65):
However, when the means employed place broadly protected and well understood basic human rights under international law such as the security of the person in jeopardy, the boundary between acceptable means of achieving a legitimate policy and persecution will have been crossed. It is at this point that Canadian judicial bodies may pronounce on the validity of the means by which a social policy may be implemented in an individual case by either granting or denying Convention refugee status, assuming of course that the claimant's credibility is not in question and that his or her account conforms with generally known facts.
[12] The country condition evidence for the relevant time period was not referred to in the tribunal's decision. One report (U.K. Home Office, India Assessment, September 1999) clearly describes police brutality against Sikhs who were often arrested on "mere suspicion":
5.6.26 Various human rights organisations have strongly criticised the Punjab police for their misuse of power during the 1980s and early 1990s. ...
5.6.27 Amnesty International detected a pattern to the arrests, detentions, torture and disappearances which they reported. They concluded that Sikhs were often arrested on mere suspicion that they were linked to armed secessionist groups. Family members of suspects were arbitrarily detained and tortured in order to extract information about the suspect's whereabouts or activities. Amnesty said that women had been arrested and tortured simply to deter them from giving food and shelter to Sikh militants. They described torture in police custody as routine and there were persistent allegations that political prisoners died in custody as a result of torture.
5.6.28 Amnesty International also reported that hundreds of members or sympathisers of armed Sikh groups were allegedly captured, sometimes tortured, and then extra-judicially executed, the killings attributed by the police to armed "encounters".
[13] It was wrong for the tribunal to accept that torturing Mr. Singh was a normal means of investigation where the commission of a terrorist act was suspected. This is all the more true, of course, when the person being interrogated is only seen as possibly having some information concerning the identity of the suspected terrorists.
[14] Similarly, the panel member's reasoning concerning the bribes paid on behalf of Mr. Singh to secure his release after each detention is seriously suspect:
...it seems perfectly reasonable, under the circumstances, to conclude that [the payment of money] was the police officers' real objective regarding the claimant.
Evidently, such an acknowledgment does not allow us to conclude that there was persecution in the sense of the definition, since the police officers acted this way to obtain money and not for one of the listed reasons for persecution.
Moreover, it is not unreasonable to think that the police were in fact motivated by both objectives simultaneously, or consecutively. ... In this way, their second objective incidentally completes the first.
[15] Here, the tribunal attributes to the police the dual motives of torture and greed and concludes that the greed "incidently completes" the torture and neither constitutes persecution. In my respectful opinion, this reasoning is perverse, particularly in view of the evidence concerning country conditions in the Punjab around 1994 with respect to police brutality against Sikhs, such as Mr. Singh, suspected of having information concerning militants.
[16] Finally, the tribunal erred in dismissing the imputed political opinion as a link between the police brutality and Mr. Singh's claim to the status of Convention refugee.
[17] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, Justice La Forest considered imputed political opinion in these terms (at paragraph 119):
First, the political opinion at issue need not have been expressed outright. In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions. In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant.
[18] The tribunal, in my view, embarked on a misguided analysis of Ward and other doctrinal authorities to conclude as follows:
Given that the definition of a refugee is an entity, including both inclusion and exclusion clauses, it is reasonable to express the belief that if a person is excluded from the application of the Convention and there are serious grounds for believing that this person has committed terrorists acts, it would be incongruous to consider terrorism as a political opinion in the sense of the inclusion clause.
In other words, it would be illogical to exclude known terrorists on the one hand, and on the other, elevate the precepts of their violent ideas to the rank of political opinions that merit protection.
The analysis showed that the claimant's argument for the police having ascribed political opinions to him because he was allegedly linked with terrorists was unfounded since terrorism is not a political opinion in the sense of the definition of a refugee.
[19] Again, I must respectfully conclude that this reasoning is perverse and fails to take into account Mr. Singh's testimony. There is not a scintilla of evidence that Mr. Singh was a terrorist. According to his evidence, which the tribunal chose to believe, he was arrested and tortured because he was a Sikh suspected of having knowledge of and assisting terrorists. These are facts which establish imputed political opinion to the applicant. This evidence is totally unrelated to his possible exclusion as a Convention refugee because of any complicity in crimes against humanity.
[20] In summary, the tribunal's analysis totally disregarded the oral testimony which it accepted and the documentary evidence concerning police brutality against Sikhs suspected of aiding militants. The decision under judicial review must be dismissed.
[21] Neither party suggested the certification of a serious question.
A.C.J.
Ottawa, Ontario