Federal Court Decisions

     IMM-2803-95

BETWEEN:

     SUKHRAJ SINGH,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

LUTFY J.:

     The applicant seeks judicial review of the determination of the Convention Refugee Determination Division ("the Tribunal") that he failed to establish the objective component of a well-founded fear of persecution were he to return to the Punjab in India. In the view of the Tribunal, current conditions concerning human rights in India, while far from ideal, do not justify the applicant's fear of persecution for his religion, political opinion or membership in a particular social group. The Tribunal decision was issued on September 21, 1995, some three years subsequent to the events which caused the applicant to flee India.

     The applicant is a Sikh and supports the goals of the Khalistan movement. In December 1991, the applicant's brother was arrested by the Punjab police for his participation in the activities of Sikh militants. The applicant believes that his brother's death on December 15, 1991 was the result of police beatings.

     In April 1992, the applicant was forced by Sikh militants to provide them with shelter in his home. Police harassment of the applicant followed this incident. In August and October 1992, the applicant was arrested, interrogated and tortured by the Punjab police. Each detention lasted approximately six days. The police have the applicant's photograph and fingerprints. One of the persons arrested with the applicant in October 1992 was killed while allegedly attempting to escape. The applicant denied to the police any voluntary involvement with Sikh militants.

     The applicant's evidence was generally accepted by the Tribunal. Neither his credibility nor the subjective component of his fear of persecution is in issue. The applicant's counsel characterizes as an error in law for the Tribunal to have accepted the applicant's credibility and to have concluded nonetheless that his release from detention "...suggests that the police did not view him to be a militant." In my view, this finding is neither unreasonable nor inconsistent with the original accusations of Sikh militancy by the police and the applicant's denial in any involvement in such activities.

     Similarly, it was open to the Tribunal to have found the applicant credible and yet question the objective component of his fear of persecution. The Tribunal relied on documentary evidence in concluding that the circumstances in India, including the Punjab, had changed by 1995 with the result that the applicant's fear of persecution upon returning to his country was objectively not well-founded.

     The Tribunal acknowledged the indiscriminate killings of Sikh militants in 1991 through 1993 but relied on annual country reports, the 1994 report in particular, to conclude that both Sikh militancy and the police reaction it generated had substantially ceased.

     The documentary evidence is not unequivocal. It is noted, for example, that four Punjabi militants were killed in the last six months of 1994 as compared with more than 583 such killings in 1993. However, the same document confirms ongoing human rights abuses in India despite constitutional and statutory safeguards. The applicant relies in particular on the briefing received in August 1994 by the Immigration and Refugee Board from Professor Paul Brass who, while noting the general confidence in the improved situation, cautioned that the incumbent Director General of Police had not changed. He predicted that the current situation, improved but not yet certain, would probably remain until mid-1997.

     The scope of review of a tribunal's decision concerning a change in circumstances or the current situation in the country from which the refugee claimant has fled is set out by Hugessen J.A. in Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 at 12:

We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful", "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s. 2 of the Act: does the claimant now have a well-founded fear of persecution? Since there was in this case evidence to support the Board's negative finding on this issue, we would not intervene.

     The Tribunal, in my opinion, received sufficient evidence to support its decision concerning the changed circumstances in India. The record also establishes some contrary evidence on the same issue, including family correspondence warning the applicant not to return to India. However, it is not the function of this Court to determine whether a different view could have been reached from an analysis of the same evidence. In my view, there is no reviewable error in the manner in which the Tribunal reached its decision.

     Neither the Tribunal in its decision nor the applicant in his submissions before this Court dealt with subsection 2(3) of the Immigration Act, R.S.C. 1985, c. I-2. As stated by Hugessen J.A. in Canada (Minister of Employment and

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Immigration) v. Obstoj, [1992] 2.F.C. 739 at 748: "The exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of present day claimants."

     Accordingly, the application for judicial review is dismissed.

                         Allan Lutfy

                         Judge

Ottawa, Ontario

January 10, 1997