Date: 20010906
Docket: IMM-6554-00
Neutral citation: 2001 FCT 995
BETWEEN:
SATINDER PAL SINGH MANN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board), dated December 4, 2000, which determined that Mr. Satinder Pal Singh Mann (the applicant) was not a Convention refugee.
[2] The applicant is a citizen of India who claimed to have a well-founded fear of persecution by reason of his political opinions and membership in a particular social group.
[3] In support of his refugee claim, the applicant alleged the following:
[4] In September of 1989, the applicant's uncle was falsely accused in an arms case. He went to court and was exonerated in February of 1993. The applicant's uncle was again arrested in 1995, following the murder of Chief Minister Beant Singh.
[5] In January of 1996, the applicant's uncle and father joined the Akali Dal Anuitsar. They worked for the party, were arrested in April of 1996, and were accused of helping militants. They were released following payment of a bribe.
[6] On April 13, 1999, the applicant and his father joined the group of Sant Darshan Singh, who was going to Anandpur Sahib for the Khalsa's 300 anniversary celebrations. On April 17, 1999, the police raided the applicant's home and arrested him. He was beaten, tortured and released on April 20, 1999, following the intervention of the village panchayat and payment of a bribe.
[7] On May 10, 1999, the applicant's father organized a protest rally against the arrest of Sant Darshan Singh. On May 12, 1999, he was arrested and then released following the intervention of the village council.
[8] On October 12, 1999, the police raided the applicant's home and arrested him. The police alleged that the applicant's uncle and father were involved in a "snatching incident". He was tortured and released on October 15, 1999, following the payment of a bribe.
[9] The applicant left India on April 28, 2000, bound for Canada where he made a claim for Convention refugee status.
[10] In its decision, the Board considered the issue of state protection and whether the applicant's fear of persecution was well founded in relation to the possibility of obtaining state protection. The Board concluded that the applicant would be able to seek state protection for the following reasons:
The evidence in the claimant's claim showed that protection was afforded to the uncle who was the main reason for the claimant's problems. Exhibits P-6 & P-7 show that the uncle was accused of a criminal infraction by police and that he went through the court system and was exonerated in 1993. If the system was able to work for the uncle, then there is no reason to believe that it would not work for the claimant. The documentary evidence shows that there is a legislative and judicial system that works in India. The fact that the uncle who was (falsely) accused, was able to seek legal representation, go to court and obtain justice, shows that police are not all controlling and, in this case, did not have the power to circumvent the process and ensure the uncle's demise. It also shows that the courts are objective and not bias towards cases brought forth by the police. The situation in this claim and the clear evidence leads the panel to believe that the claimant would be able to seek protection from the courts for the alleged acts of persecution at the hands of the police. The panel believes that the claimant did not discharge his burden to seek state protection and that it would be reasonable to assume that state protection would be forthcoming in light of his uncle's experience.
[11] The Board supported its conclusion that the applicant would be able to seek state protection, by relying on the applicant's uncle's experience to the effect that the judicial system worked in India and that courts were objective and not bias towards cases brought forth by the police.
[12] It is a leap in logic to conclude that the protection afforded by the judicial system from false accusation by the police would extend to protection against beating and torture by the police. By focussing solely on the uncle's experience, the Board disregarded the overwhelming evidence demonstrating ineffective state protection against the actions of the police.
[13] If I follow the Board's reasoning, the applicant would be required to accept persecution from the police and wait to be falsely accused like his uncle in order to benefit from the Court system and be exonerated years later. I do not think that the threshold imposed on an applicant for state protection can be that high.
[14] This application for judicial review is granted. The matter is referred back for redetermination by a newly constituted panel.
Danièle Tremblay-Lamer
JUDGE
MONTREAL, QUEBEC
September 6, 2001.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6554-00
STYLE OF CAUSE:
SATINDER PAL SINGH MANN
Applicant
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: September 5, 2001
REASONS FOR ORDER OF
THE HON. MADAM JUSTICE TREMBLAY-LAMER
DATED: September 6, 2001
APPEARANCES:
Mr. Jean-François Bertrand FOR APPLICANT
Mr. François Joyal FOR RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers
Montreal, Quebec FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec FOR RESPONDENT