Date: 20030903
Docket: IMM-1673-02
Citation: 2003 FC 1022
BETWEEN:
JASVIR SINGH SIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of an adjudicator of the Immigration and Refugee Board (Adjudication Division), dated April 8, 2002, wherein it was determined that the applicant was inadmissible under clause 19.(1)(f)(iii)(b) and paragraph 19.(1)(j) of the Immigration Act, R.S.C. 1985, c. I-2, as amended.
Order Sought
[2] The applicant seeks the following relief by way of judicial review pursuant to subsection 18.1(3) of the Federal Court Act, R.S.C. 1985, c. F-7:
1. An order that the tribunal do any act or thing it has unlawfully failed or refused to do or has unreasonable delayed in doing; or
2. An order to declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of the tribunal.
Background
Introduction
[3] The applicant is a Jat Sikh from Village Umarpura Kalan, District Jalandhar, Punjab, India. The applicant spent the period from December 1994 to July 1999 in various jails and the period from July 1999 to June 2000 in hiding in various locations in the Punjab. On June 10, 2000 the applicant came to Canada, and on August 10, 2000, the applicant claimed refugee status. His claim was based upon a well-founded fear of persecution due to his membership in a particular social group, as well as his actual and perceived political opinion. The applicant's mother, Preetam Kaur Sian, brother, Ranjit Singh Sian, and nephew, Davinder Singh Sian, all reside in British Columbia.
Allegations and Inquiry
[4] The Minister of Citizenship and Immigration alleged that there was credible and trustworthy evidence that the applicant had taken part in serious activities in the Punjab and that he was a member of the Khalistan Liberation Force ("KLF"). The matter was directed to an inquiry, which took place on January 24 and 25, 2002. The Minister alleged that the applicant was a member of an inadmissible class under subparagraph 19.(1)(c.1)(I), clause 19.(1)(f)(iii)(b), and paragraph 19.(1)((j) of the Immigration Act, supra.
Reasons of the Immigration and Refugee Board (Adjudication Division)
Ranjit's Withdrawal of Sponsorship
[5] In December 1992, the applicant's brother, Ranjit, withdrew his sponsorship of the applicant stating that the applicant was a "Sikh extremist and [his] mother [was] in Canada so [he] want[ed] to process the application in Canada".
[6] The adjudicator noted that "extremist" was not synonymous with "terrorist", but found that the withdrawal raised concerns. The adjudicator concluded that on a balance of probabilities Ranjit had obtained the information both directly from the applicant himself and through hearsay from other persons, and was sufficiently concerned with his brother's alleged activities that he took the drastic step of withdrawing his sponsorship.
Davinder's Claim to Refugee Status
[7] The applicant's nephew, Davinder, claimed refugee status due to harassment arising from the applicant's problems with authorities in India. This was outlined in his Personal Information Form ("PIF"). Noting Davinder was of tender years (15) at the time of filing of the PIF, the adjudicator found that an individual acting on his behalf would not implicate a close blood relative in potentially serious activities without valid reasons. The adjudicator concluded that the PIF statements were credible and trustworthy statements of Davinder's subjective reservations regarding the applicant's alleged conduct.
Ranjit's Testimony
[8] At Davinder's refugee hearing, Ranjit testified that the applicant told him that he was a member of the KLF. The adjudicator found this evidence to be credible and trustworthy.
Newspaper Articles
[9] The adjudicator found an excerpt from the Vancouver Punjabi Tribune stating that the applicant had been arrested, was a high profile militant, and member of the KLF and other organizations, to be only minimally credible and trustworthy as there was no independent verification of facts in the article. The adjudicator found that its minimal probative value extended mainly to confirmation of certain charges against the applicant, which were corroborated by independent evidence.
[10] The adjudicator also considered articles from the Ajit Newspaper, finding one was only minimally credible and the other had little to no probative value.
Gurpreet Singh: Terrorism, Punjab's Recurring Nightmare
[11] The adjudicator found information regarding the applicant in the book by Gurpreet Singh, entitled Terrorism, Punjab's Recurring Nightmare, to be only marginally credible and trustworthy.
Indian Court Matters
Expert Testimony of Navkiran Singh, Advocate
[12] The testimony of Navkiran Singh, the applicant's counsel in India, was accepted as that of an expert in the areas of the state of Indian domestic law and general human rights issues in India. The adjudicator noted that the issue of potential bias arose with Navkiran's testimony. Navkiran was present in the hearing room during the hearing and was well acquainted with the applicant. The adjudicator found the issue of bias arose when considering the weight to be given to his evidence, particularly that regarding the interpretation of the applicant's conviction on First Information Report ("FIR") No. 3.
TADA (Terrorist and Disruptive Activities (Prevention) Act) and the Indian Judicial System
[13] Navkiran testified that TADA "was considered a draconian law which infringed into the life and liberty of individuals. It was widely misused by the state against minorities, against the Sikhs, against the Muslims, throughout India". The adjudicator found that bias reduced the weight to be given to these statements.
Judgment on FIR No. 3
[14] FIR No.3 notes that the applicant was prosecuted under TADA for possession, without permit, of illicit articles. The adjudicator notes that the applicant contended that he was being held in illegal detention at the time that the alleged offences, arrests and recovery of illicit articles took place. The adjudicator did not find that clear and convincing evidence of a general reversal of onus of proof onto the accused had been adduced.
Additional FIRs
[15] The applicant was ultimately acquitted of all FIRs, other than FIR No.3. The adjudicator found that the other FIRs did not constitute credible and trustworthy evidence of other offences allegedly committed by the applicant, but did find them to be probative of the fact that not all FIRs resulted in convictions which were upheld on appeal to the Supreme Court of India.
Probative Value of Conviction on FIR No. 3
[16] The applicant's conviction on FIR No.3 was not overturned by the Supreme Court of India. The adjudicator found this conviction to be credible and trustworthy evidence of the facts alleged in that proceeding.
The KLF and Jasvir's Alleged Membership
The Applicant's Alleged Membership in the KLF
[17] The adjudicator concluded that there were reasonable grounds to believe that the applicant was a member of the KLF at the time in question. The adjudicator considered the evidence including hearsay evidence emanating from Ranjit, the statements in Davinder's PIF, newspapers articles, and the applicant's conviction on FIR No. 3. The adjudicator accepted Navkiran's testimony that a proceeding under TADA presumes activity in areas related to terrorism. The adjudicator also noted that the illicit articles found in the applicant's possession assisted in making a reasonable inference regarding his alleged membership in the KLF.
The Nature of the KLF
[18] The adjudicator concluded that there were reasonable grounds to believe that the KLF was an organization engaged in terrorism around the time of the applicant's membership in it.
Interpretation Matters
Best Evidence Rule
[19] The adjudicator determined that the evidence regarding Davinder and Ranjit was of minimal probative value. The adjudicator considered the evidence as a whole and determined what cumulative probative weight should be assigned to individual elements of the evidence. The adjudicator determined that examination of a witness essentially providing hearsay evidence not determinative of any issue on its own was not essential to the ultimate fairness of the hearing. The adjudicator concluded that to adhere to the best evidence rule in these circumstances would be illogical.
Adverse Inference
[20] The adjudicator found that the initial evidence regarding Davinder and Ranjit, together with the documentary evidence, satisfied the initial onus on the Minister regarding certain allegations, and that the onus then shifted to Jasvir. As counsel did not cross-examine these witnesses, or call the applicant to testify as to his non-membership in the KLF or the circumstances surrounding FIR No.3, the adjudicator drew an adverse inference that none of the applicant's testimony would have been beneficial to his case.
Conjecture/Speculation vs. Reasonable Inference
[21] The adjudicator noted that inferences made regarding various aspects of the evidence were carefully, logically and reasonably drawn having regard to the totality of the evidence adduced.
Analysis of Law
[22] The Minister's counsel withdrew the allegation respecting subparagraph 19.(1)(c.1)(i) of the Act.
[23] The adjudicator concluded that the applicant fell within clause 19.(1)(f)(iii)(b) of the Act as there were reasonable grounds to believe that the applicant was a member of the KLF and that the KLF was engaged in terrorism.
[24] The adjudicator also concluded that there were reasonable grounds to believe that the applicant was complicit in crimes against humanity which were committed by the KLF and that the applicant came within paragraph 19.(1)(j) of the Act. The adjudicator found that the KLF murders in this case constituted "inhumane acts", were targeted at specific civilian and identifiable groups, and were crimes against humanity at the time and in the place of their commission pursuant to international law. While the adjudicator did not find there was credible and trustworthy evidence to confirm the applicant's direct involvement in the KLF murders, he found that there were reasonable grounds to believe that the applicant was complicit in crimes against humanity committed by the KLF. The adjudicator found that there was no evidence that the applicant's membership in the KLF was other than fully voluntary and that he could have severed ties with the organization, that the applicant and the KLF shared a common brutal purpose or were complicit in crimes against humanity, that the applicant was a member of the KLF for an extended period of time, and that the applicant would have been aware of the KLF's widespread terrorist activity.
Conclusion
[25] The adjudicator concluded that the applicant was a person in Canada who was neither a Canadian citizen, nor a permanent resident and that he was a member of two inadmissible classes. The adjudicator concluded that the applicant "is a person who there are reasonable grounds to believe":
1. is or was a member of an organization that there are reasonable grounds to believe was engaged in terrorism, and
2. has committed an offence referred to in any of s.4 to 7 of the Crimes Against Humanity and War Crimes Act.
Accordingly, the adjudicator issued a conditional deportation order against the applicant.
[26] This is the judicial review of the adjudicator's decision.
Applicant's Submissions
[27] The applicant submits the adjudicator based his decision and order on an erroneous finding of fact that he made in a perverse or capricious manner and without regard to the material before him.
[28] The applicant submits the adjudicator completely ignored the applicant's PIF in rendering his decision. It is submitted that a consideration of all of the applicant's evidence and in particular his PIF would not have led to the conclusion that he was a person described under clause 19.(1)(f)(iii)(B) or paragraph 19.(1)(j) of the Immigration Act, supra. It is submitted that the adjudicator cannot ignore the applicant's PIF and if the adjudicator found that it was not credible, he was required to explain why.
[29] The applicant submits the adjudicator improperly discounted the evidence of Navkiran Singh. It is submitted the adjudicator cannot discount expert evidence because the expert is perceived to be biassed in favour of the applicant. It is submitted that the test in assessing a witness's testimony is whether the evidence is credible or trustworthy, not whether someone is biassed in favour of one party.
[30] The applicant submits that the adjudicator's inferences were not reasonable in light of the evidence before him. It is submitted that the inferences drawn by the adjudicator are not sufficient to support the conclusion that the applicant participated in terrorism.
[31] The applicant submits the adjudicator failed to observe the principles of natural justice, procedural fairness and other procedures that he was required by law to observe.
[32] The applicant submits the adjudicator erred in law by shifting the burden of proof which lay on the Minister to the applicant. It is submitted that the burden of establishing the applicant to be in an inadmissible class rests with, and stays with, the government.
[33] The applicant submits the adjudicator exhibited bias in his decision in consideration of the treatment of the evidence. It is submitted the adjudicator was not impartial to the evidence presented to him and only considered the evidence that supported the Minister's version of events.
[34] The applicant submits the adjudicator failed to consider the application of subsection 269.1(4) of the Criminal Code, R.S.C. c. C-46, in light of the evidence in the applicant's PIF that he was tortured prior to his conviction. It is submitted that the adjudicator was obligated to consider whether the statements that the applicant made to the police and resulted in his conviction were given under torture. It is submitted that the applicant's conviction should not be considered when assessing inadmissibility under subsection 19.(1) of the Immigration Act, supra.
Respondent's Submissions
[35] The respondent submits that the applicant is really arguing about the weight given to the evidence by the adjudicator and that this is not a proper ground for judicial review. The respondent acknowledges that the burden of proof is on the Minister at inquiries, and submits that the standard of proof is a bona fide belief in a serious possibility based on credible evidence. The respondent submits the adjudicator carefully considered and weighed all the evidence before him and correctly applied the burden of proof throughout the inquiry.
[36] The respondent submits there is no foundation for the applicant's assertion of bias. It is submitted that a review of the reasons would not lead a reasonable person to conclude that the adjudicator was biassed in any way.
[37] The respondent submits the applicant's argument that the adjudicator failed to consider subsection 269.1(4) of the Criminal Code, supra is without merit. The respondent submits that the applicant's complaint is with the manner in which the adjudicator weighed the evidence. It is submitted that the reasons clearly demonstrate that the adjudicator carefully reviewed all the evidence with respect to the Indian judicial system, both generally and with specific reference to the applicant.
Issues
1. Did the adjudicator base his decision and order on erroneous findings of fact that he made in a perverse or capricious manner and without regard for the material before him?
(a) Did the adjudicator completely ignore the applicant's PIF in rendering his decision?
(b) Did the adjudicator improperly discount the evidence of Navkiran Singh?
(c) Are the adjudicator's inferences unreasonable in light of the evidence before him?
2. Did the adjudicator fail to observe the principles of natural justice, procedural fairness and other procedures that he was required by law to observe?
(a) Did the adjudicator err in law in shifting the burden of proof which lay on the Minister onto the applicant?
(b) Did the adjudicator exhibit bias in his decision in the consideration of the evidence?
(c) Did the adjudicator fail to consider the application of statutory duress under subsection 269.1(4) of the Criminal Code, supra in light of evidence in the applicant's PIF that he was tortured prior to his conviction?
Relevant Statutory Provision
[38] Subsection 19.(1) of the Immigration Act, supra states in part as follows:
|
19.(1) No person shall be granted admission who is a member of any of the following classes:
. . .
(f) persons who there are reasonable grounds to believe
. . .
(iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in
. . .
(B) terrorism,
except person who have satisfied the Minister that their admission would not be detrimental to the national interest;
. . .
(j) person who there are reasonable grounds to believe have committed an offence referred to in any of sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; |
19.(1) Les personnes suivantes appartiennent à une catégorie non admissible:
. . .
(f) celles dont il y a des motifs raisonnables de croire qu'elles:
. . .
(iii) soit sont ou ont été membres d'une organisation dont il y a des motifs raisonnables de croire qu'elle se livre ou s'est livrée:
. . .
(B) soit à des actes de terrorisme,
le présent alinéa ne visant toutefois pas les personnes qui convainquent le ministre que leur admission ne serait nullement préjudiciable à l'intérêt national;
. . .
(j) celles dont on peut penser, pour des motifs raisonnables, qu'elles ont commis une infraction visée à l'un des articles 4 à 7 de la Loi sur les crimes contre l'humanité et les crimes de guerre; |
[39] Subsection 269.1(4) of the Criminal Code, supra states:
|
269.1(4) In any proceedings over which Parliament has jurisdiction, any statement obtained as a result of the commission of an offence under this section is inadmissible in evidence, except as evidence that the statement was so obtained. |
269.1(4) Dans toute procédure qui relève de la compétence du Parlement, une déclaration obtenue par la perpétration d'une infraction au présent article est inadmissible en preuve, sauf à titre de preuve de cette infraction. |
Analysis and Decision
[40] Issue 1(a)
1. Did the adjudicator base his decision and order on erroneous findings of fact that he made in a perverse or capricious manner and without regard for the material before him?
(a) Did the adjudicator completely ignore the applicant's PIF in rendering his decision?
At page 2 of the decision, the adjudicator stated:
III. ANALYSIS OF EVIDENCE
Minister's Counsel maintained that there was credible and trustworthy evidence from several sources regarding acts allegedly committed by Jasvir, his alleged membership in the KLF and the activities and objectives of the KLF. Each of the primary elements of evidence was examined in turn to firstly determine whether that element was credible and trustworthy, and secondly what weight could be assigned to it, either on its own or cumulatively:
A. Ranjit's withdrawal of sponsorship
B. Davinder's claim to refugee status
C. Ranjit's testimony
D. Newspaper articles
E. Gurpreet Singh: Terrorism, Punjab's Recurring Nightmare
F. Indian court matters
G. The KLF and Jasvir's Alleged Membership
H. Interpretation matters
Minister's Counsel submitted that Jasvir had involvement with Indian courts respecting very serious matters which tended to confirm the allegations against him. In this Adjudicator's view, certain aspects of the court proceedings constituted the most credible and trustworthy evidence tendered upon which full weight could be ascribed, and upon which the rest of the evidence drew meaning and context. The probative value of all evidence was addressed, having regard to potential involvement of the "best evidence" rule, adverse inference and bias.
This would appear to indicate that the adjudicator considered this to be the evidence for the application. The applicant's PIF contains his allegations of fact relating to his alleged activities. I have reviewed the adjudicator's decision and I cannot find where the contents of the applicant's PIF was addressed by the adjudicator. There is no doubt that it is the role of the adjudicator to consider the evidence presented to him and to give it a certain weight. In the present case, the adjudicator did not find the applicant to be not credible. In fact, the adjudicator appears not to have dealt with the statements contained in the PIF.
[41] When the evidence, if accepted, could be crucial to the outcome of the application, it is all the more important for the adjudicator to address this evidence. I am of the view that the adjudicator made a reviewable error by failing to address the statements made by the applicant in his PIF. If the statements contained in the PIF had been addressed by the adjudicator, there is no way of knowing whether the decision with respect to clause 19.(1)(f)(iii)(B) or paragraph 19.(1)(j) would have been different.
[42] The application for judicial review is allowed.
[43] Because of my ruling on the above issue, it is not necessary that I deal with the remaining issues.
[44] The parties shall have one week from the date of this decision to submit any serious question of general importance for my consideration and a further week for any submissions with respect to any question that may be submitted.
"John A. O'Keefe"
J.F.C.
Toronto, Ontario
September 3, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1673-02
STYLE OF CAUSE: JASVIR SINGH SIAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: VANCOUVER, BRITISH COLUMBIA
DATE OF HEARING: MARCH 6, 2003
REASONS FOR ORDER : O'KEEFE, J.
APPEARANCES: Mr. Christopher Elgin
FOR APPLICANT
Ms. Brenda Carbonell
FOR RESPONDENT
SOLICITORS OF RECORD: Elgin Cannon & Associates
Vancouver, British Columbia
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20030903
Docket: IMM-1673-02
BETWEEN:
JASVIR SINGH SIAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER