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Federal Court
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Cour fédérale
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Date: 20090512
Docket: IMM-4815-08
Citation:
2009 FC 485
Ottawa,
Ontario, May 12, 2009
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
BALRAJ
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act),
of a decision dated October 9, 2008, by the Refugee Protection
Division of the Immigration and Refugee Board (panel) that the applicant is not a Convention
refugee or a person in need of protection.
[2]
For the
following reasons, the application for judicial review will be allowed.
Factual background
[3]
The
applicant, Balraj Singh, a citizen of India, is both a pharmacist and a farmer
in the state of Punjab. In August 2006, he hired a
young Muslim servant. In October 2006, under the excuse that all employees from
outside Punjab had to be questioned, the servant was arrested and tortured by
local police authorities.
[4]
On April
13, 2007, while the applicant and his servant were working in the fields, the
police arrived to arrest the servant. However, the servant managed to escape. The
applicant was therefore arrested, tortured and accused of being an accomplice
to Muslim extremists. The police authorities told him that they had found a gun
in the servant’s room.
[5]
The
applicant alleges having been arrested and beaten two other times, in June and
in August 2007.
[6]
Meanwhile,
the servant’s father held the applicant responsible for the torture his son endured.
He threatened the applicant and his family in August 2007.
[7]
The
applicant arrived in Canada on October 24, 2007, and
claimed protection on November 5, 2007.
[8]
The
applicant alleges that he cannot return to India because he would be arrested and
tortured by the police, who believe that he is associated with Muslim
extremists.
[9]
The panel
denied the applicant’s claim, stating that his narrative was fabricated and not
credible. The panel mentioned that even if it had erred in its credibility
analysis, the applicant had an internal flight alternative (IFA) in the city of
Delhi.
Analysis
Standard of review
[10]
In
questions of credibility and assessment of evidence, it is well established
under paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C.
1985, c. F-7, that the Court will intervene only if the panel based its
decision on an erroneous finding of
fact made in a
perverse or capricious manner or if it made its decision without regard to the
material before it (Aguebor v. Canada (Minister of Employment and
Immigration) (1993), 160 N.R. 315 (F.C.A.), 42 A.C.W.S. (3d) 886).
[11]
Assessing credibility and weighing the evidence
fall within the jurisdiction of the administrative tribunal called upon to
assess the allegation of a subjective fear by a refugee claimant (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35
(F.C.T.D.), 83 A.C.W.S. (3d) 264 at paragraph 14). Before Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, the standard of review applicable in
comparable circumstances was patent unreasonableness. Since that decision, the standard is reasonableness.
[12]
The
appropriate standard of review for IFA issues was patent unreasonableness (Khan
v. Canada (Minister of Citizenship and Immigration), 2005 FC 44, 136 A.C.W.S. (3d) 912 and Chorny
v. Canada (Minister of Citizenship and Immigration), 2003 FC 999, 238 F.T.R. 289). Following
Dunsmuir, the Court must continue to show deference when determining an
IFA and this decision is reviewed according to the new standard of
reasonableness. Consequently, the Court will intervene only if the decision
does not fall within the range “of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, at
paragraph 47). The reasonableness of a decision is
concerned with the existence of justification, transparency and intelligibility
within the decision-making process.
[13]
In the
present case, the panel committed errors that warrant the intervention of the
Court.
[14]
With
regard to credibility, the panel relied on documentary evidence to state that
it did not believe the applicant, that his story was fabricated and that it was
implausible that he was subjected to the alleged torture. The panel made no
reference to a document entitled “National Conference on Prevention of Torture
in India” dated June 2007 that was
nevertheless part of the package made available to the decision-makers.
[15]
The Court
believes that it would have been necessary to refer to the documentation that
contradicted the documentation used by the panel given that the torture
suffered by the applicant was a crucial element that he raised. The panel ought
to have explained why it set aside the documentation concerning torture or did
not believe that the documentation was relevant (Simpson v. Canada (Minister of Citizenship and Immigration), 2006 FC 970, [2006] F.C.J. No. 1224
(QL) at paragraph 44).
[16]
The panel
then mentioned that it did not put great weight on the affidavits filed by the
applicant because it believed that these affidavits had been typewritten on the
same machine. Even if there was no expert opinion in the record that could
support this finding, the panel’s error stems mainly from the fact that it
never confronted the applicant in this regard during the hearing. Nevertheless,
these affidavits corroborated the applicant’s arrests. Furthermore, nothing is
mentioned by the panel about a letter from a lawyer whom the applicant approached
and to whom he had told his narrative.
[17]
With
respect to the IFA, the panel mentioned that the applicant alleged that he could
not return to India because the police would arrest
and torture him since they believe that he is associated with Muslim extremists.
The panel conceded that the police are searching everywhere for extremist
terrorists (see paragraph 20 of the panel’s decision . . . “Muslim extremist
terrorists have police everywhere on the alert. . . .”).
[18]
Nonetheless,
the panel arrived at the conclusion that the applicant had an IFA.
[19]
The
applicant noted that he had been arrested in another state (Hariana) in India
and he explained why he believed he was in danger in the two suggested cities
of Delhi and Mumbai.
[20]
The
failure of the panel to take this important evidence into consideration, to
comment on it or to explain why an IFA was nevertheless available to the
applicant despite his assertions requires the intervention of this Court (Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312, 15
A.C.W.S. (3d) (F.C.A.)).
[21]
The
parties did not propose any question for certification and this application
does not give rise to any.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be allowed. The matter is referred for
redetermination by a differently constituted panel. No question is certified.
“Michel
Beaudry”
Certified
true translation
Janine
Anderson, Translator
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