Date: 19980902
Docket: IMM-5116-97
B E T W E E N:
GURPAL SINGH
Applicant
" and "
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
STRAYER J.A.
Relief Requested
[1] This is an application for judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (hereafter "Board") of November 4, 1997. The Board in the course of hearing a claim to refugee status by the applicant determined that he was excluded from entitlement to that status by virtue of paragraph F(a) of Article 1 of the Convention. Persons within that paragraph are excluded from refugee status by virtue of section 2 of the Immigration Act . The relevant part of Article 1 of the Convention provides as follows:
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: |
| (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes . . . . |
The Board found that there were serious reasons for considering that the applicant had committed crimes against humanity during his time of service with the Punjab Armed Police.
Facts
According to his Personal Information Form (hereafter "PIF") the applicant voluntarily joined the Punjab Armed Police in November, 1992 shortly he had completed his grade 10 at school and when he was 19 years old. He resigned from the force in February, 1995. According to his PIF he had witnessed a number of instances of abuse by other police personnel of Sikh militants or suspected militants in police custody. He also said in his PIF that he had refused to kill or torture militants but observed other officers do this. He also said that on one occasion upon refusing to do what he was ordered, he was "physically and verbally abused by an Inspector named Mangatram".
The hearing before the Board took place in the afternoon although the time of commencement is not indicated. Early in the proceedings the Chairman announced that his board colleague had to leave by 4 o"clock.1 At the outset the Board identified the issues it thought relevant: namely, credibility, who were the agents of persecution, internal flight alternative, possible delay in making a Refugee Claim, and "the issue of exclusion". The Refugee Claims Officer asked that the issue of well-foundedness of the alleged fear of persecution also be an issue.2 The Chairman at this point asserted that "There is no need for the claimant to repeat everything he has told us in his Personal Information Form". In fact the Chairman frequently interrupted counsel for the applicant in his examination of his client, apparently all in aid of hastening the process. The claimant gave evidence as to the first incident after he joined the Force where Sikh militants were brought in to the police station at Jalandhar. He testified that they were severely beaten and later shot. He said that he refused to participate in the torture and interrogation but instead stood guard at the "main gate" of the police headquarters. His counsel tried to elicit from him more information as to the nature of the guard duty he was performing, apparently with a view to demonstrating that he was performing a general guard duty for the headquarters and not directly furthering the interrogation and torture by protecting it from interruption. The Chairman of the Board interrupted this examination and did not allow counsel to pursue it fully.3 The applicant then testified that he observed three more incidents at Jalandhar. After he had testified with respect to one of these other three incidents and was in the course of testifying to a second, the Chairman concluded that the evidence of this latter incident was complete. The Chairman then adjourned the hearing at 2:35 p.m. for 20 minutes.4 When the panel returned the Chairman announced that at that point they wished to have certain questions put to the applicant as to why he had not left the police force after these three incidents. Counsel for the applicant objected saying that he wished to continue to ask questions including questions as to the quality of the applicant"s participation in these incidents. The Chairman refused to allow him to do so and insisted that the questions be put as to why the applicant did not leave the police force.5 After these questions were asked and answered, counsel tried to ask questions concerning the fourth incident which was said to involve Inspector Mangatram. At this point the Board went off the record and upon returning told counsel that they would like to hear observations and submissions on the issue of exclusion: that is, they declined to hear any more evidence with respect to the applicant"s alleged involvement in crimes against humanity.6 At the end of these submissions the Board reserved on the question of exclusion and its subsequent decision was confined to that issue.
Analysis
Without going into all of the issues raised by the applicant, I am satisfied that there was a denial of natural justice or fairness committed by the Board in preventing the applicant and his counsel from presenting his case.
In not permitting counsel to examine the applicant more fully on the nature of his role in respect of the first and third incidents, the Board may well have refused to hear evidence which could have been quite relevant. It is well established in the jurisprudence that the nature of a refugee claimant"s role during the commission of crimes against humanity is of vital importance in determining whether they can be considered to be a party to those crimes.7 Further, it is not clear what the claimant might have added to the evidence about the third incident but it is clear that the Board unilaterally determined that his evidence was completed on this point.
With respect to the fourth incident the Board declined to hear any testimony. It appears that this evidence would have expanded on what the applicant adverted to in his PIF, namely the abuse he suffered from an Inspector Mangatram when he refused to do what he was ordered to do on that occasion.8 While it is not possible for me to say precisely what the oral evidence would have been in this respect, or to say whether it would have affected the outcome in any way, it was a denial of a fair hearing to prevent counsel from putting questions to his client with respect to this matter. It could have been relevant to the general nature of the relationship of the applicant to his superiors and what he might reasonably have anticipated had he sought to either continue to refuse to participate directly in beatings and killings or to leave the police force. It is striking that while the Chairman announced at the outset that it was not necessary for the claimant to repeat all of his evidence in the PIF, and that the PIF contained evidence as to abuse of the applicant by a superior officer, the Board concluded that
| the claimant was under no duress at the time of the incidents described in testimony.9 |
This statement has some validity only because the Board did not permit the claimant to give testimony beyond the third incident. The Board was in the circumstances not entitled to ignore the PIF and to confine itself to the oral testimony: indeed, it had assured the applicant that it was not necessary for him to repeat everything in his PIF.
Because of this interference with the presentation of the applicant"s case and the Board"s failure to take into account evidence in the PIF when it said it would do so, the decision cannot stand.
Disposition
Therefore the decision of the Board of November 4, 1997 must be set aside for denial of natural justice and fairness and the matter remitted to a differently constituted panel for redetermination.
Judge
__________________
1 Record, at 416.
2 Ibid, at 415-16.
3 Ibid, at 426-27.
4 Ibid, at 434.
5 Ibid, at 434-36, 439.
6 Ibid, at 440.
7 See e.g. Ramirez v. M.E.I. [1992] 2 F.C. 306; Moreno v. M.E.I. [(1993) 21 IMM. L.R.(2d) 221; Randhawa v. M.E.I. (1994) 93 F.T.R. 151.
8 Application Record at 37, lines 38-43.
9 Record at 13.