Date: 19980812
Docket: IMM-5243-97
BETWEEN:
MOHINDER SINGH GILL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Calgary, Alberta
on Tuesday, August 4, 1998 as edited)
ROTHSTEIN, J.:
[1] In its decision, a panel of the Immigration and Refugee Board accepted that the Applicant was persecuted by the Punjabi police in the past as a result of his activities with the Akali Dal (Mann) party. The sole issue as framed by the panel was whether the Applicant had an internal flight alternative if he returned to India and lived in Uttar Pradesh or Delhi. Normally, when a panel frames the sole issue before it in this way, it accepts (or assumes) that if the Applicant returns to his or her area of origin, persecution will ensue. The only question is whether the Applicant has a viable IFA elsewhere in his or her country, such that a fear of persecution may not be well-founded (Kanagaratnam v. Canada (MCI) (1996), 194 N.R. 46 (F.C.A.), per Linden J.A.).
[2] In this case, however, the panel"s analysis did not proceed on this basis. Although the panel stated IFA was the issue it was addressing, its actual analysis deals with whether conditions have changed sufficiently in India, and in particular in the Punjab, such that the Applicant is no longer at risk of persecution if he returned.
[3] In making its assessment of the profiles of people currently at risk, the panel relied on documentary evidence, some of which was provided by Cynthia Keppley Mahmood, Associate Professor of Anthropology at the University of Maine and a noted expert in Sikh militancy. The documentary evidence included the following paragraph from Professor Mahmood which the panel quoted in its reasons, with the exception of the last two sentences.
| ASSIIF and Akali Dal Mann workers |
| While being in a prominent position in these organizations may be risky (as in Kashmir Singh case, above), I do not know of any recent harassment of the rank and file. |
| It is well-known that the Indian police (not only in Punjab but elsewhere too) keep lists of habitual offenders. ...Asylum seekers who claim to fear being picked up because they were on a list stemming from the early 90s may be telling the truth, and they may be at continuing risk. I would point out that this "list factor"; does mitigate somewhat my general comment that the rank and file, uninvolved Sikhs are today minimally at risk. If someone today can show that he or she was on a list from the early 90s, when abuses ran rampant, he or she may indeed have reason to fear. To ascertain this, (whether someone is on a list), I would ask whether they had been picked up on previous occasions, ie during the early 90s. Get the details. |
| [emphasis added] |
I consider the failure by the panel to quote the last two sentences of the paragraph to be a significant omission.
[4] Although the panel accepted that the Applicant had been arrested in 1992 and that the police had made efforts to locate him in Uttar Pradesh in September of that year, the panel concluded that there was no evidence that he was on a police list dating back to the early 1990's or that he could be considered an habitual offender. Obviously the Applicant could not produce the police list. The very expert the panel relies upon states that if an individual has been picked up on previous occasions this may be evidence that he or she is on a list and has reason to fear. The evidence that the Applicant was picked up and that the police tried to locate him in Uttar Pradesh was accepted by the panel. Such evidence, however, was ignored by the panel when it concluded that there was no evidence he was on a police list.
[5] A panel is entitled to accept, reject and weigh documentary evidence. If a panel states it is relying on specific documentary evidence, however, it cannot arbitrarily disregard integral portions of that evidence (D"Mello v. Canada (MCI), [1998] F.C.J. No. 72 (T.D.), per Gibson J. (QL)). The omission of the last two sentences in a paragraph that are interrelated to preceding sentences and which materially affect the application of the preceding sentences to the facts of the case at bar raises a serious concern. In addition, it is troubling that the panel framed the sole issue as IFA and then proceeded with an analysis of changed country conditions.
[6] The judicial review is allowed and the matter is remitted to a different panel of the Immigration and Refugee Board for redetermination.
"Marshall Rothstein"
Judge
Toronto, Ontario
August 12, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5243-97
| STYLE OF CAUSE: MOHINDER SINGH GILL |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, AUGUST 4, 1998
PLACE OF HEARING: CALGARY, ALBERTA
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: WEDNESDAY, AUGUST 12, 1998
APPEARANCES: Mr. Charles Darwent
For the Applicant
Mr. Randy Benson
For the Respondent
SOLICITORS OF RECORD: Charles Darwent
| Barrister & Solicitor |
| Suite 250, Centre 15 |
| 1509 Centre St. South |
| Calgary, Alberta |
| T2G 2E6 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980812
Docket: IMM-5243-97
Between:
| MOHINDER SINGH GILL |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER