Date: 19980121
Docket: IMM-838-97
BETWEEN:
SATNAM SINGH PARMAR
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JOYAL, J.
[1] This is an application for judicial review of a decision by the Immigration and Refugee Board, dated February 6, 1997. The Board decided that the applicant was not a Convention refugee as defined in sub-section 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
The Facts:
[2] The applicant is a citizen of India. He is of the Jat Sikh faith and was a farmer in the province of Punjab. The applicant's problems began in 1986, when his brother-in-law was killed by the Punjab police due to his alleged militant connections.
[3] Following the brother-in-law's death, the applicant and his family were regularly visited and harassed by both the Punjab police and Sikh militants. During those raids, the applicant's father and brother were frequently arrested, detained and tortured.
[4] In 1989, the applicant's father became a special police officer. He was subsequently shot by Sikh militants who suspected him of providing information to the police. The applicant and his family were harassed by both the police and militants for several years.
[5] In February 1994, the applicant's brother was arrested by the Punjab police and has not been seen since. He is presumed dead. After his brother's disappearance, the applicant was sent to live at his uncle's home and then, to several other relatives' homes. He obtained a passport in March 1994 and left India in June 1995.
The Refugee Board Decision:
[6] The Board concluded that the applicant did not have a well-founded fear of persecution if returned to India. According to the Board, the evidence did not show that the applicant had an objective fear of persecution.
The Issue:
[7] Did the Board err in law in determining that the applicant did not have a well founded fear of persecution, more specifically, by ignoring the evidence before it in making that determination?
Position of the Applicant:
[8] In summary, counsel for the applicant submits:
| 1. the Board erred in denying the applicant refugee status in spite of finding him to be credible; |
| 2. the Board erred in questioning the applicant on the subjective basis for his claim when it had already found him credible; |
| 3. the Board was wrong in the circumstances to reject the "well-foundedness" of the applicant's fear of persecution; |
| 4. the Board erred in concluding that delays in leaving the country after obtaining a passport and visa indicated a lack of fear on the part of the applicant; |
| 5. the Board was wrong in drawing negative inferences from the applicant's return trips to the Punjab; |
| 6. the Board was wrong in noting that militancy has died down in the Punjab, when evidence shows that it continues; and |
| 7. the Board failed to consider earlier documentary evidence relevant to the applicant's well-founded fear of persecution. |
Position of the Respondent:
[9] The respondent's pleadings may be summarized as follows:
| 1. the Board correctly applied the proper legal test to determine whether or not the applicant is a Convention refugee, by considering inter alia: |
| (a) that the applicant or his family had had no contact with the militia since 1993; |
| (b) that the applicant was never arrested or detained despite ample opportunity over a period of many months; |
| (c) the delay of some 15 months between the applicant's obtaining a passport and his leaving India; and |
| (d) his ability to leave India without incident. |
| 2. The Board, in its judgment-making role, may very well comment on certain aspects of the evidence, including the behaviour of an applicant, and therefrom make positive or negative inferences. |
| 3. It is properly open to the Board to determine that the applicant's own conduct, including his delays in leaving India, as well as his travels within India, were inconsistent with fear of arrest, detention and torture, and inconsistent with a well-founded fear of persecution by the police. |
| 4. It is also within the competence of the Board to weigh the evidence and make a judgment call on it. |
Analysis:
[10] No doubt, a Board decision in matters of refugee determination may be particularized, studied in isolation and analyzed in-depth until some substantive truth or untruth may be drawn from it. However, it is the function and duty of a Board to hear all of the oral evidence, most of which comes from the mouth of the claimant, and to analyze and balance all of the documentary evidence on the country involved. Jurisprudence is well established that upon absorbing all this, a Board is perfectly free to accept it or to reject it, in whole or in part, and where contradictory evidence is tendered, to favour one instead of the other. Unless a Board's judgment in all of these respects is patently erroneous or outrageous, it remains deserving of the diffidence always owed a tribunal which has developed its own expertise.
[11] A concomitant to this doctrine is the role of the Court itself where the decision is challenged by way of judicial review, which is a process to determine if the tribunal's decision is according to law, and not an appeal in the traditional sense. If the decision is according to law, it is not open to the Court to substitute its own appreciation of the evidence for that of the tribunal. Admittedly, the temptation to do so is always there, and may seem at times irresistible, nevertheless, the Court must not yield if it is to respect its own role.
[12] In the case before me, the main issue is whether or not the applicant has a well- founded fear of persecution. It was established long ago that this comprises two elements, one subjective, the other objective. The claimant has the burden of proving both elements. As stated by Heald J.A.1:
| The subjective element relates to the existence of fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated to determine if there is a valid reason for that fear. |
[13] The subjective component of the "well-founded fear" test is solely based on the applicant's credibility. When sworn to the truth of the allegations, the applicant's testimony is presumed to be true. The Board did not, in clear and unmistakeable terms, find that the applicant was lacking in credibility, and thus, we can conclude that the applicant did prove that he had a subjective well-founded fear of persecution.
[14] Counsel for the applicant submits that the Board did not properly acknowledge that the applicant had a subjective fear of persecution when it noted that he had delayed his departure from India for almost a year and that his actions were not consistent with a well founded fear of persecution (See the Board's Reasons, p. 5). With all due respect, the Board was indeed consistent with the Federal Court and the Court of Appeal jurisprudence relating to delays in making claims2.
[15] The objective component of the test requires that the applicant prove there is a "reasonable probability" or a "serious chance" of persecution if returned to his or her country.
[16] Counsel for the applicant submits that the Board referred to two documents only, out of the "hundreds" that were in evidence. However, the fact that the Board fails to recite all of the evidence when rendering a decision does not necessarily imply that the decision has to be quashed. The question that should be asked is whether the evidence not mentioned is so important and vital that failure to acknowledge it may constitute a reviewable error. After reviewing the documentary evidence, I do not think that the Board can be said to have failed to consider all of the evidence before it.
Conclusion:
[17] Although counsel for the applicant was able to put together a number of arguable issues, counsel for the respondent was able to traverse most of them. In any event, I should conclude that in spite of some blemishes contained therein, the Board's decision is in accord with the evidence and with the applicable law.
[18] The application for judicial review is therefore dismissed.
L-Marcel Joyal
J U D G E
O T T A W A, Ontario
January 21, 1998.
__________________1 Rajudeen v. Canada (M.E.I.), (1984) 55 N.R. 129 (F.C.A.).
2 See Lameen v. Canada , (1994) 7 F.T.R. 125; Huerta v. M.E.I., (1993) 157 N.R. 225 (F.C.A.); Hue v. Canada, March 8, 1988, Court file A-196-87 (F.C.A.).