Date: 20030828
Docket: IMM-4020-02
Citation: 2003 FC 1003
Between:
AMRIK SINGH GILL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated July 8, 2002, determining him not to be a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant is a citizen of India. He claims to have a well-founded fear of persecution in that country on the ground of perceived political opinion and membership in a particular social group, that of Sikhs in Punjab.
[3] The applicant's refugee claim was rejected after the Board found him not to be credible. In order properly to examine the issue of credibility, the Court must be able to assess whether the Board drew inferences from the evidence which were reasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and if its grounds are explained clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)).
[4] The applicant submits that the Board misread, misinterpreted or misapplied the documentary evidence when it concluded that the torture and detention described by the applicant did not fit the context of the atrocities being committed at the time.
[5] It is necessary to review the documentary evidence on country conditions in order to determine whether the Board's analysis of it is patently unreasonable. However, the relevant evidence is not included in the Certified Copy of the Tribunal's Record (the "CCTR"). The Board has merely included a list of the articles which were before it at the time of the hearing, but not copies of the articles themselves. Justice Reed has held in Kong et al. v. Canada (M.E.I.) (1994), 73 F.T.R. 204 at 211, that such an omission can be grounds for a reversal of the decision:
[20] What is more, although the record which was sent to the court is certified as a true copy of all the material which was before the Board, I can find no copy of the article from which the quote was taken included therein. Thus, I cannot consider the context from which the quote was taken. It would appear from one of the indexes on the file that there is more material than just this one article which is missing from the certified record. A certified record should include all the evidence which was before the Board. The absence of such can itself be grounds for a reversal of the decision.
[6] In this case, the Board relied heavily on the documentary evidence. In fact, its negative credibility finding hinges on its interpretation of the evidence regarding country conditions. This interpretation is contested by the applicant. The documentary evidence is not, as the respondent submits, irrelevant to the establishment of a subjective fear on the applicant's part, since it was because of its interpretation of it that the Board found the applicant's testimony regarding the 1991 and 1992 arrests to be implausible. The remainder of the applicant's testimony was rejected as a result, as the Board itself states at page 3 of its reasons:
As the panel does not believe that the claimant was ever arrested in 1991 and 1992, we do not believe that his name was put on a police blacklist and consequently do not believe that he was arrested in 1997 and had to take refuge in Bombay in 1998.
[7] The respondent submits that the applicant did not demonstrate to the Board that the Indian authorities were not able to protect him, since he did not use the available mechanisms to request state protection, and since the objective documentary evidence indicated that he would not be at risk in India in 2002. Again, the relevant documentary evidence is missing from the CCTR, which makes it impossible for this Court to evaluate the accuracy of the Board's interpretation of it, as Heneghan J. has stated in Sardar Mumtaz Ahmed v. The Minister of Citizenship and Immigration (February 17, 2003), IMM-4571-01, 2003 FCT 180:
[25] In my opinion, the deficiencies in the record give rise to the apprehension that the Board rendered a conclusion in the absence of evidence to support it. . . .
[26] It then proceeded to consider whether an IFA was available and concluded that it was. The Board reached this conclusion primarily on the basis of certain documentary material. However, the certified tribunal record does not include the material in question.
[27] The absence of this evidence casts doubt upon the conclusion of the Board, that an IFA was reasonably available. One of the purposes of an application for judicial review is to test the reasonable basis for a decision of a statutory tribunal. In this case, the Board's conclusion is not justified by the evidence submitted, by the Respondent, to the Court.
[8] Given that the present applicant's story concerns police brutality in two separate areas of the country, this Court cannot assess the validity of the Board's decision regarding his ability to receive protection from state authorities without being able to review the documentary evidence upon which it relied in reaching its conclusion.
[9] Given the lack of independent documentary evidence on the record, which makes it impossible to examine the excerpts relied upon by the Board in context, the application for judicial review is granted and the matter sent back for redetermination before a differently constituted panel.
[10] The respondent proposed the following question for the purpose of certification:
In the judicial review of a RPD decision where the certified tribunal record does not include document(s) referred to, and relied upon by the tribunal, does the Applicant bear the onus of producing the evidence s/he wishes the Court to rely upon?
[11] However, rule 17(b) of the Federal Court Immigration and Refugee Protection Rules, SOR/93-22, makes it clear that it is incumbent upon a tribunal to prepare and produce, without delay, a record containing, inter alia, "all papers relevant to the matter that are in the possession or control of the tribunal". In that respect, I fully agree with the following notes printed underneath rule 17, in Federal Court Practice, 2003, by Sgayias, Kinnear, Rennie and Saunders, at page 1026:
Rule 17 is a departure from the procedure that usually applies to judicial review applications. Under Part 5 of the Federal Court Rules, 1998 it is for the parties to prove the record. They may request, under rule 317, that the tribunal file material relevant to the application. Rule 17 would appear to supplant rule 317 as the summary way of putting the relevant material before the Court and avoiding delays that could occur if this were left to the parties and to the usual practice.
[12] Considering, therefore, rule 17(b) of the Federal Court Immigration and Refugee Protection Rules, considering the particular circumstances of the present case, and considering the criteria established by the Federal Court of Appeal in Canada (M.C.I.) v. Liyanagamage (1994), 176 N.R. 4, for certification of a serious question of general importance, the question proposed by the respondent ought not to be certified.
JUDGE
OTTAWA, ONTARIO
August 28, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4020-02
STYLE OF CAUSE: AMRIK SINGH GILL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 8, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: August 28, 2003
APPEARANCES:
Jack B. Rosenfeld FOR THE APPLICANT
Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jack B. Rosenfeld FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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