Bains v. Canada (Minister of Citizenship and Immigration)

Transcription

1 Bains v. Canada (Minister of Citizenship and Immigration) Between Gurmukh Singh Bains, applicant, and The Minister of Citizenship and Immigration, respondent [1999] F.C.J. No. 536 Court File No. IMM Federal Court of Canada - Trial Division Montréal, Quebec Blais J. Heard: April 7, 1999 Judgment: April 21, 1999 (12 pp.) Aliens and immigration Admission, refugees Grounds, well-founded fear of persecution Appeals or judicial review, grounds. This was an application by Bains for judicial review of a dis missal of an application for Convention refugee status. Bains was a citizen of India. He was of Sikh nationality and religion. Bains claimed that he had a well-founded fear of persecution in India because of his nationality, political opinion, religion and membership in a particular social group. Bains had been arrested in India five times and accused of assisting terrorists. He had been beaten and tortured while in custody. Bains fled to England and applied for political asylum, but after waiting several years he came to Canada. The board found that Bains did not have a subjective fear, given his willingness to leave England before his application for asylum had been processed. Bains failed to produce any evidence to support his claim that English authorities were deporting asylum seekers. The documentary evidence established that high profile suspects in India were no longer being harassed by the police, and that Bains was not a high profile suspect regardless. HELD: The application was dismissed. Bains did not contend that he had a fear of persecution in England. The board was justified in verifying the grounds Bains alleged for his departure from England. The fact that Bains left England did not demonstrate that his fear of being returned to his country was well founded, since English authorities indicated that Bains would not be deported until a decision on his status was made. The board's finding that Bains did not have a subjective fear was not unreasonable. Bains failed to establish that the board erred in law or based its decision on erroneous findings of fact.

2 Counsel: Jean-François Bertrand, for the applicant. Patricia Deslauriers, for the respondent. 1 BLAIS J. (Reasons for Order and Order): This is an application for judicial review of the Immigration and Refugee Board decision dated June 15, 1998, determining that the applicant is not a Convention refugee. FACTS 2 The applicant is a citizen of India, born in the Punjab in He came to Canada on March 1, 1997, and claimed refugee status on March 4, The applicant is of Sikh nationality and religion. He alleges he has a well-founded fear of persecution in his country for reasons of nationality, political opinion, religion and membership in a particular social group. 3 The applicant's story can be summed up as follows: In January 1985, while spectating at a rally of the AISSF (All India Sikh Students Federation), he was arrested by the police. 4 He was arrested a second time in July 1986 after a visit from two school friends. The police accused him of helping the terrorists and of being one himself. He was beaten and tortured. 5 In 1987, after completing his studies, he worked on the farm and helped in his family's transport business. When he was returning from a delivery with his truck, two men asked him for a ride. Along the way, they encountered a police barricade, and the two men told him not to stop or else they would kill him. 6 Fearing for his life, he obeyed the two men and did not stop his truck. Shots were fired by the police and the two men. Near the village of Dhadan, they ordered him to stop and not to tell anyone what had just happened. 7 The next day, the police came to his home and arrested him. They took him to the police station, questioned him about the two terrorists, and beat and tortured him. He was released on payment of rupees. 8 In September 1988, his truck was stolen. This was reported to the police. The next morning, he was arrested again and held at the police station. He was beaten and tortured.

3 9 In June 1989, fearing the police, he decided to flee to his sister's home in the state of Madhpradesh. People from his village informed him that the police were frequently looking for him at his family's home. 10 He stayed with his sister for four months and then went to stay with a friend in Assam. He was informed that the police had been to his sister's home. They also came to Assam, but the applicant was not home. 11 He then left for Maharastra. The Maharastra police arrested him. After he was held for a week, the Punjab police came and took him back to the Punjab. He was again beaten and tortured. He was released after several days, on payment of rupees. 12 Fearing for his life, he decided he had to leave India. He arrived in England in 1991 and applied for political asylum, but after waiting for five or six years, still without an answer, he came to Canada. DECISION OF THE BOARD 13 The Board found that there was no well-founded fear of persecution for the following reasons: At the first hearing, the applicant explained that he had never received a decision on his application for political asylum in England and that he left England because he had heard that refugee claimants were being deported. 14 The Board asked the applicant to produce papers from his asylum application in England, but the applicant replied that he had left them in England. He added that he had a work permit and a driver's licence that was valid until June The claimant maintained he had come to Canada because he was tired of waiting for the outcome of his application for political asylum and had been told claims were processed faster in Canada. 16 The Board allowed the applicant three weeks to produce documents concerning his status in England. On March 3, the Board received exhibit P-14, a letter dated February 24, 1998, in which his lawyer in England confirmed that the applicant had made an application for political asylum in 1991, that an interview had taken place on May 21, 1992, and that no decision had yet been made. His lawyer in England added that the applicant had been issued a National Insurance Number, which allowed him to work. 17 Therefore, by leaving the United Kingdom before discovering the outcome of his application, the applicant had not shown the will to pursue his application. This clearly indicated to the Board that the applicant did not have a subjective fear. Moreover, he had not produced any evidence that UK authorities were deporting asylum seekers.

4 18 In addition, at the time of the hearing in 1998, there was no valid basis for his claim. According to several credible sources, the documentary evidence clearly indicated that peace had returned to the Punjab since 1993; even families of high profile suspects were no longer harassed by the police, and the applicant certainly could not be regarded as one of them, considering his allegations. 19 For these reasons, the Board determined the applicant not to be a Convention refugee. ARGUMENT OF THE APPLICANT 20 The applicant argues he does not have to show that England might have deported him. A subjective fear has only to be felt; it does not have to be based on actual facts, but can be based on rumours or mistaken belief. Unlike the objective fear, only the fear has to be proved, not the basis for it. 21 The applicant submits that the evidence does not support the finding that there is clearly no longer any objective basis for fearing return to the Punjab. It is also unreasonable to find, based on the documentary evidence, that peace has clearly returned to the Punjab. 22 The applicant suggests the panel surely did not assess all the documents put before it as documentary evidence. Were the panel to have had regard to all the documentary evidence, it could not have found as it did. It should also have said why it disregarded the other documents, and why those other documents did not form an objective basis for a well-founded fear of persecution. ARGUMENT OF THE RESPONDENT 23 The respondent argues that the British officials of the Immigration and Nationality Department advised the applicant's lawyer in 1991 that the applicant could reside in England until his asylum application was decided and would not be deported. 24 The respondent argues that the Board was certainly entitled to be dissatisfied with the applicant's explanations, that is, that he had supposedly heard that the British authorities were removing claimants who were awaiting status, contrary to the formal written commitment not to deport them. 25 The respondent suggests the burden of establishing a well-founded fear of persecution rests on the shoulders of the claimant alone; unless he establishes on balance of probability that he has a serious fear of persecution, he cannot be determined to be a refugee. 26 With respect to the change in circumstances, the respondent suggests the applicant had the burden of showing that the Board's finding on the change in circumstanc es in the case at bar was patently unreasonable if he wished to have this Court intervene.

5 27 However, the applicant's submissions on this subject relate to the Refugee Division's assessment of the evidence, referring to certain passages from that evidence to the effect that some people might still be persecuted in the Punjab now. 28 The respondent suggests there is nothing in the applicant's evidence to suggest that the applicant could be described as a militant by the Indian authorities and could thus be a victim of persecution; the applicant did not show that the finding that there was no longer any objective basis for the applicant's fear was capricious or unreasonable. ANALYSIS 29 With respect to the reason for the applicant's departure from England, it appears that counsel, in his argument, is mistaken to suggest that a subjective fear is sufficient to justify the applicant's departure from England. 30 The fear to which the Convention refers is associated with persecution; no fear of persecution in England was alleged, and therefore the Board was justified in verifying the grounds the applicant alleged for his departure from England. 31 The applicant fled his country for fear of being persecuted and subsequently decided to leave the country where he found refuge while awaiting a decision on his refugee status; that does not demonstrate that his fear of being returned to his country was well founded, since England had clearly told the applicant he would not be deported before a decision on his status was made. 32 In Kante v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 525, Mr. Justice Nadon wrote: The law is clear that the burden of proof lies with the Applicant i.e. he must satisfy the Refugee Division that his claim meets both the subjective and objective tests which are required in order to have a well founded fear of persecution. Consequently an Applicant must come to a hearing with all of the evidence that he is able to offer and that he believes necessary to prove his claim. 33 It seems rather unlikely the claimant decided to leave England to come to Canada because he hoped a refugee claim would be processed more quickly and efficiently than in England. In my view, the Board's finding that the applicant does not have a subjective fear is not at all unreasonable in the case at bar and does not warrant the intervention of this Court. 34 With respect to the second ground, the applicant considers the Board's finding unreasonable given the documentary evidence to which it was to have regard. 35 It is important to recall that the burden of establishing a well-founded fear of persecution rests on the shoulders of the claimant alone; unless he establishes on balance

6 of probability that he has a serious fear of persecution, he cannot be determined to be a refugee. 36 With respect to the change in circumstances, it is for the Board to assess this in light of the evidence before it. The applicant had to show that the Board's finding on the change in circumstances in the case at bar was patently unreasonable in order for the intervention of this Court in that regard to be warranted. 37 To that end, the applicant referred to numerous parts of the documentary evidence before the Board. I find it helpful to quote the judgment of the Honourable Mr. Justice J.E. Dubé in Gurvinder Singh Sandhu v. Minister of Citizenship and Immigration of Canada, IMM : The voluminous evidence considered by the panel on the subject of the political and social situation in the Punjab is controversial and can be interpreted in different ways. Among the documentary evidence, the panel is entitled to rely on that which it considers most consistent with reality. The issue of changed circumstances is a pure question of fact, as the Federal Court of Appeal indicated in Yusuf 1. There is no prescribed legal test for determining whether there has been a change in circumstances in a country. The panel must use the documentatio n submitted to it to determine whether a change in circumstances has in fact occurred. 38 It is also worthwhile to recall a decision of Mr. Justice Lutfy in Sukhraj Singh v. M.C.I., IMM : 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. 39 Nor was it necessary for the Board to refer to each and every document in the voluminous documentary evidence; the Board assessed it, and a number of references support its decision. 40 In my view, the applicant has not succeeded in establishing that the Board erred in law or based its decision on erroneous or capricious findings of fact made without regard for the material before it; thus, the intervention of this Court is unwarranted. 41 For all these reasons, the application for judicial review is dismissed. 1 (1995), 179 N.R. 11, at p. 12 (F.C.A.).

7 42 Counsel for the applicant submitted two questions for certification: 1. Regarding the subjective fear: Does abandoning a claim in order to make one elsewhere, where the chances of success are believed to be better, suggest there is no subjective fear? 2. Regarding the assessment of prevailing country conditions: Where pieces of evidence are equally credible, is there a presumption that the panel had regard to a piece of evidence that contradicts the evidence the panel accepted, when the panel did not mention that piece of evidence? Is there such a presumption when that piece of evidence is also more recent? 43 Counsel for the respondent submitted written comments with respect to these two proposed questions. 44 The Court does not consider these to be serious questions of general importance for certification. Accordingly, no question will be certified. Certified true translation: Peter Douglas