Federal Court Decisions

                                                                                                              Date: 20020104

                                                                                                     Docket: IMM-881-01

                                                                                        Neutral citation: 2002 FCT 10

Ottawa, Ontario, this 4^th day of January, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD   

BETWEEN:

                                               MAKHAN SINGH SIDHU

                                                                                                                        Applicant

                                                              - and -

                       THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                    Respondent

                                     REASONS FOR ORDER AND ORDER

1.                    The applicant is a citizen of India and claimed to have a well-founded fear of persecution in India based on his political opinion. The applicant has had two refugee hearings. After the first hearing, held in Montreal on May 11, 1999, the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Refugee Division") determined that the applicant was not credible and that he was not a Convention refugee. The applicant successfully sought judicial review of this decision. On April 4, 2000, this Court determined that the Refugee Division did err by ignoring documentary evidence but did not err in its assessment of the applicant's credibility. The applicant's refugee claim was sent back for re-consideration before a different panel.

2.                    On October 19, 2000, at the second hearing held in Vancouver, the following evidence was before the Refugee Division:

           (a)        the complete file from the first hearing, including transcripts of proceedings, the former panel's written reasons and Madam Justice Tremblay-Lamer's decision;

           (b)        a number of new exhibits introduced by the applicant comprising both personal documentation relating to the claimant and country condition materials;

           (c)         new oral evidence, related essentially to the new exhibits;

           (d)        updated country conditions documentation provided by the RCO.

On February 2, 2001, a second panel of the Refugee Division again determined that the applicant was not a Convention refugee basing its decision on the applicant's lack of credibility and lack of objective fear of persecution.

3.                    The applicant is now challenging this decision on the basis that the Refugee Division erred in both its assessment of the applicant's credibility and its finding of no objective fear of persecution. The applicant argues that the Refugee Division based its decision "...on erroneous findings of facts made without regard to the material and evidence before it, when it misconstrued evidence and/or when the Board [Refugee Division] drew inferences from the evidence that were not supported by the evidence or were previously drawn".

4.                    In its reasons the Refugee Division dealt first with the issue of lack of credibility and then considered whether there existed an objective basis for the applicant to fear persecution should he return to India. The following five areas of the evidence were considered by the Refugee Division:

           (a)        medical reports submitted by the applicant to corroborate the allegations of torture;

(b)        the applicant's political involvement in working with his brother, Maghar Singh Sidhu, in supporting the Khalistani movement or the Akali Dal Mann Party while in India;

           (c)         the photograph taken with the head of the Akali-Mann Group, Simrinjit Singh Mann and oral evidence given regarding his visit to Canada;

(d)        the affidavit evidence of the applicant's wife with regard to movement of family members, and harassment of his mother; and

(e)       the U.K. asylum applications of his two alleged brothers-in-law.

5.                    The Refugee Division re-assessed the applicant's credibility by reviewing his previous evidence against new evidence which was adduced to enhance the applicant's earlier allegations. The respondent accurately summarized in its memorandum of argument the following findings of the Refugee Division with respect to the credibility of the applicant and objective risk:

                                 (b)            the revised medical report provided by the Applicant appeared to be contrived purposefully with the sole intention of overcoming the credibility deficiencies in the Applicant's earlier testimony;

(c)             the discrepancies in the Applicant's first refugee hearing with regards to visiting villages with his brother in 1992 and 1993 were not resolved by the Applicant at his second hearing;

(d)            the testimony of Maghar Singh, the Applicant's brother ("Maghar"), who did not testify at the first hearing, could not be accorded as much weight as the Applicant's spontaneous sworn testimony at the first hearing. The Refugee Division did not accept Maghar's statements as credible evidence of the Applicant's personal involvement in support of the Khalistani cause;

(e)             the discrepancies noted in the Applicant's previous testimony remain unresolved and impact the credibility of his allegation that he was personally involved in the Khalistani movement or the Akali Dal Mann Party;

(f)             the Refugee Division did not find that a recent photograph of the Applicant, with Simrinjit Singh Mann, the head of the Akali Dal Mann Group ("Mann"), and Maghar, taken in a private residence in Canada, constituted reliable evidence that the Applicant, when in India, was independently and personally a supporter or a known supporter of Mann and the Khalistani cause;

(g)            the Applicant's evidence concerning the statements and positions of Mann was interested hearsay evidence and not supported by the documentary evidence;

(h)            the Applicant gave confusing and contradictory evidence concerning the location of his wife and children in India and their interaction with the Applicant's mother and the Refugee Division gave no probative value to the affidavit of the Applicant's wife;

(i)             the Refugee Division gave no probative weight to the photocopied U.K. letters pertaining to Jinder Singh and Surjit Singh, the Applicant's alleged brothers-in-law;

(j)             the Applicant was not a credible or reliable witness in respect to his allegations that he was personally involved in the Akali Dal Mann Party in India or that he was arrested and tortured in India;

(k)            there was no evidence of any kind to suggest that relatives or Mann Party members who have no ties to actual terrorist groups were now being arrested or persecuted in India;

(l)             while the documentary evidence suggested that there was a remote possibility that the Applicant may be briefly questioned concerning the whereabouts of Maghar, there was no reliable evidence that it would constitute harm to the Applicant amounting to persecution; and

(m)           there was no reliable objective [evidence] [sic] to suggest that the Applicant, as the brother of a member of the Mann Party, was at a reasonable risk or persecution in India at the present time.

6.                    I have carefully reviewed the written submissions of counsel for the applicant, and her oral submissions on the issue of the credibility findings of the Refugee Division. I have particularly considered all of the arguments advanced by the applicant challenging the Refugee Division's findings in the five areas of evidence referred to in paragraph 4 above. I conclude that the plausibility inferences drawn and the credibility findings made by the Refugee Division were reasonably open to it. In Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, pp. 316-317 at paragraph 4, Décary J. stated:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.

1.          I am of the view that the findings of the Refugee Division, pertaining to plausibility and credibility with regard to the applicant are reasonably open to it on the record and do not warrant the intervention of this Court.

7.                    In granting the judicial review of the decision of the first panel, Madame Justice Tremblay-Lamer stated at paragraph 20 of her reasons:

In fact, counsel contends, inter alia, that a recent document entitled "Harassment of members of AISSF", Response to Information Request dated September 17, 1998 [Exhibit A-19] which indicates that Khalistani activists and their family members remain at "significant risk" was ignored by the Board. Considering that the applicant's status as the brother of a Khalistani activist was not in dispute, I am of the view that it was indeed unreasonable for the Board not to consider the relevance of this document.

8.                    Given my determination that the Refugee Division's findings on credibility and plausibility will not be disturbed, we are left with the only credible evidence being the fact that the applicant's brother, Maghar Singh Sidhu, was a supporter of the Akali Dal Mann Party and the Khalistan cause. We are therefore left to assess the objective basis for the applicant's fear of persecution in India from his relationship with his brother.

9.                    The burden of proof is on the applicant to provide evidence of the well-foundedness of his claim to refugee status. In the end, whether the facts in a particular case support a finding of persecution is a matter for assessment and determination by the Refugee Division. The jurisprudence of this Court has generally accepted that the standard of review of decisions of the CRDD is patent unreasonableness. [Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300, p. 2 at para. 5].

10.              The September 17, 1998 report (the "September 17^th report") referred to by my colleague, Madam Justice Tremblay-Lamer, identifies three categories of people who remain at "significant risk" in India. The first category consists of militants or perceived militants, Khalistani activists and their family members who "top the list". The second category of persons at risk are those known as "history sheeters" or "habitual offenders", persons who have records of past arrests and detentions. The third category referred to in the report of persons at risk are women. The applicant's position is that he falls within the first category because of his relationship with his brother.

11.              The applicant submits that the documentary evidence clearly suggests that individuals who are family members of those who are advocates of the Khalistani cause are at risk of persecution. The applicant argues that the Refugee Division ignored the totality of the evidence by limiting the scope of the September 17^th report to militant organizations. The applicant further contends that the Refugee Division again ignored evidence when it concluded that, since the Akali Dal Mann Party no longer publicly advocates the creation of Khalistan, this is a basis to sever any connection between the Party and his brother from the first category of persons at risk. The applicant argues that his brother was known independently of the Akali Dal Mann Party as a Khalistani activist. The applicant, in support of his contention that Khalistani supporters are still at risk, points to documentary evidence of the arrest of the leader of the party in June 1999, during a period of relative calm. The applicant also takes issue with the Refugee Division's finding that there is only a remote possibility that the claimant might be briefly questioned concerning the whereabouts of his brother. The applicant points to documentary evidence that the Punjab police are known to go beyond simple questioning of people and engage in intense interrogation and torture techniques. The applicant also points to a May 5, 1997 report, that was before the Refugee Division, which reports the murder of Kashmir Singh, the Public Secretary of the Akali Dal (Mann), killed solely because of his political activism.

12.              In its reasons the Refugee Division conducted a comprehensive review of the September 17,1998 report and considered the categories of persons at risk mentioned in the report against the credible evidence before it and other even more recent documentary evidence. The Refugee Division after a careful review of the September 17^th report, concluded that its author's comments, " ... do not admit to a refined or very accurate assessment of most persons with Khalistani sympathies or perceived sympathies". The Refugee Division notes that the report from its title, is most likely a discussion of persons associated with certain factions of the Sikh Student Federation. The Refugee Division recognizes, from other reliable documentation, that members of the student federation and their immediate families are indeed at risk. But, the documentation, by contrast, does not support the contention that Sikhs who simply support, in a non-violent manner, the concept of an independent homeland, are at risk.

13.              In its reasons the Refugee Division did not accept the applicant's evidence that he was ever personally involved in the Akali Dal Mann Party and made the following findings of fact:

(a)             that Simrinjit Singh Mann has not been detained since June 1999;

(b)            that Simrinjit Singh Mann is now a member of the Punjab Assembly and the Indian Federal Parliament;

(c)             that, notwithstanding his private sentiments, Simrinjit Singh Mann has publicly renounced the goal of separating the Punjab from India;

(d)            that, according to statement attributable to Mann, "there had not been a militant movement in Punjab for the last three to four years.

The Refugee Division from its review of reliable documentary evidence, determined that there was no evidence to suggest that relatives of Mann Party members, who have no ties to actual terrorist groups, are now being arrested or persecuted in India. The Refugee Division concluded that there is no reliable objective evidence to suggest that the applicant, as the brother of a member of the Simrinjit Singh Mann Party, is at a reasonable risk of persecution in India at the present time.

14.              This issue turns on the appreciation of the evidence the Refugee Division had before it. On the evidence, I believe that it was open for the Board to conclude that the applicant, as the brother of a member of the Akali Dal Mann Party, is not at risk of persecution in India at the present time. In my view the Refugee Division, on the evidence, was entitled to conclude as it did, and with due respect to the contrary view, I have been unable to identify any capriciousness or perversity in its findings of fact.

15.              This is not a case where the Refugee Division denied the applicant fairness, ignored evidence or otherwise committed any reviewable error warranting the intervention of this Court. This is a case where the Refugee Division was not satisfied that the applicant had established a well-founded fear of persecution in India. I conclude that despite the submissions of the applicants, ably advanced by his counsel, the findings by the refugee Division in this case, were reasonable and open to it based on the totality of the evidence before it. For the above reasons this application for judicial review will be dismissed.

16.              Both parties, having been given the opportunity, have not proposed a question for certification. There is no question of general importance for certification.

ORDER

THIS COURT ORDERS that :

           1.         This application for judicial review is dismissed.

                                                                                                                               "Edmond P. Blanchard"                  

                                                                                                                                                               Judge