Date: 20070710
Docket: IMM-5284-06
Citation: 2007 FC 732
Ottawa,
Ontario, July 10, 2007
Present: The
Honourable Mr. Justice Blanchard
BETWEEN:
GURDHIAN SINGH
Applicant
and
MINISTER
OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA) of a decision dated September 6, 2006, by the Immigration
and Refugee Board, Refugee Protection Division (Board). On that date, the
applicant’s refugee claim was refused.
[2]
The applicant is asking this Court to set aside
the Board’s decision and to remit the matter for reconsideration by a
differently constituted panel.
2. Factual
Background
[3]
The applicant is a citizen of India who holds
the position of a granthi (priest). He claims to be a Convention refugee
and a person in need of protection on the ground that he fears persecution by
the police and by terrorists if he testifies against them.
[4]
On August 12, 2003, a Ragi Jatha (a group of
religious singers) came to the village temple. The next day, the police raided
the temple and found weapons in the singers’ musical instruments. Two of the
singers were arrested and a third, Dalip Singh, escaped.
[5]
The applicant was also arrested during the
police intervention. He was tortured by the cheera method before being
released. The applicant associates his release with the action taken by the
village and temple councils which paid a bribe to the police. He maintains that
he was treated by a doctor for his injuries.
[6]
Following these events, the police searched the
applicant’s house and told him that he would be called to testify against the
terrorists who had been arrested.
[7]
In the wake of these events, the applicant took
steps to obtain a visa for Canada but was unsuccessful.
[8]
On January 24, 2004, Dalip Singh went to the
applicant’s home and threatened him with death if he testified against his
friends. The applicant again unsuccessfully attempted to obtain a visa for
Canada.
[9]
On March 30, 2004, the police arrested the
applicant; he was tortured, then released. The applicant again associates his
release with action taken by the village and temple councils. However, he
states that his family also paid a bribe to the police. After his release, the
applicant was required to report to the police beginning May 1, 2004. He
maintains that he also received medical treatment for his injuries.
[10]
Carrying a false passport, the applicant left
India on July 23, 2004, for Canada where he sought refugee protection.
[11]
The Board decided the applicant’s refugee claim
on May 17, 2005. This decision was set aside by Mr. Justice Luc Martineau on
November 30, 2005, on the ground that the findings concerning state protection
and the non-credibility of the applicant were patently unreasonable.
[12]
Another hearing before the Board took place on
June 2, 2006, and a negative decision was made the same day. This is an
application for judicial review of that decision.
3. Impugned
decision
[13]
The Board determined that the applicant was not
a refugee under section 96 of the IRPA or a person in need of protection under
section 97 because he had not provided any credible or trustworthy evidence.
The Board therefore found no credible basis to the claim under
subsection 107(2) of the IRPA.
[14]
In its reasons, the Board explained why the
applicant’s evidence was not credible. The Board rejected the applicant’s
testimony regarding his allegations of torture and concluded that Dr. Dongier’s
report did not support these allegations. The Board essentially determined that
the findings of Dr. Dongier, who examined the applicant, did not confirm that
the applicant had been tortured. According to the Board, this report only
confirmed what the applicant said, i.e. that he suffers from pain in his legs,
back and arm. The Board noted that, according to the documentary evidence, the
torture that the applicant says he was subjected to leaves physical evidence
such as scars or damage to joints and muscles, which were not mentioned in the
expert’s report. The Board also noted that when the immigration officer asked
the applicant whether he had ever had any serious medical problems, he answered
in the negative. The Board did not accept the applicant’s explanation that he believed
the question related to problems for which he was taking medication.
[15]
Next, the Board considered it unlikely that the
arrest of the suspected terrorists was not reported in the newspapers, even
though the applicant admitted that some journalists had come to the village
after the incident. On this point, the Board rejected the applicant’s
explanations that the journalists abandoned the idea in order to avoid creating
a bad impression of the village and preventing his release. The Board also considered
it implausible that the police did not publicize the matter, since they usually
trumpet their success in the media when they have arrested suspected
terrorists, thus showing how effective the police force is.
[16]
Moreover, the Board believed that the applicant
made up the story, considering his statements that no charges had been laid
against him, no proceeding compelling him to appear before a court had been
recorded and he did not know whether charges had been laid against the
terrorists who had been apprehended.
[17]
Finally, the Board identified a contradiction in
the applicant’s story. At the second hearing, he filed a second affidavit of
the village sarpanch, i.e. exhibit P-10. In this affidavit, the sarpanch
states that bribes were paid to both the police and the terrorists, whereas the
first affidavit and the applicant’s story mentioned only that a bribe had been
paid to the police. Confronted with this contradiction, the applicant explained
that it was his son who paid a bribe to the terrorists after the applicant had
left for Canada. The Board rejected this explanation because according to the
second affidavit of the sarpanch, the bribes were paid before the
applicant left for Canada. The Board found that this inconsistency only added
to the implausibility of the applicant’s story and gave no probative value to
Exhibit P-10.
4. Issues
[18]
The issues to be determined by the Federal Court
in this proceeding can be summarized as follows:
-
Was the Board’s decision based on patently
unreasonable findings of fact?
-
Did the Board err in not assessing the
applicant’s refugee claim based on his membership in a particular social group,
i.e. baptized Sikhs?
5. Standard
of review
[19]
At the outset, the
Court must determine the appropriate standard of review for the different
issues that are before the Court. The first issue concerns the credibility of
the applicant and his story. The courts have consistently held that the
standard of review applicable to such findings is patent unreasonableness. See: Aguebor v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 732 (QL); R.K.L. v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 (QL) and Khaira
v. Canada (Minister of Citizenship and Immigration), 2004 F.C. 62.
[20]
The second issue
to be determined by this Court consists in assessing whether the Board should
have analyzed the applicant’s risks given that he is Sikh and is baptized. The
appropriate standard of review for this issue is correctness, since it is a
question of law.
6. Analysis
[21]
First, the applicant contends that the Board
erred in assessing the evidence and his credibility. In support of this
argument, he submits that a number of the Board’s findings of fact are
erroneous. I carefully reviewed the various findings that the applicant
referred to but found no error that would warrant review of the decision on
this basis.
[22]
Second, the applicant submits that the Board
could not conclude that the claim has no credible basis without analyzing the
evidence that baptized Sikhs, a group that he clearly belongs to, is a group at
risk of persecution in India. In support of his argument, he refers to Mr.
Justice Evans’ statements in Rahaman v. Canada (M.C.I.), 2002 FCA 89, [2002]
3 F.C. 537 at
paragraph 51:
Finally, while I
have not been able to accept the position advanced by counsel for Mr. Rahaman
in this appeal, I would agree that the Board should not routinely state that a
claim has “no credible basis” whenever it concludes that the claimant is not a
credible witness. As I have attempted to demonstrate, subsection 69.1(9.1)
requires the Board to examine all the evidence and to conclude that the claim
has no credible basis only when there is no trustworthy or credible evidence
that could support a recognition of the claim. [Emphasis added.]
In other words,
for the Board to refuse a refugee claim because it has no credible basis, the
Board must find that there is no credible evidence.
[23]
It is clear from the Board’s decision and the
transcript of the hearing that the issue of the applicant’s membership in a
particular social group, i.e. baptized Sikhs, was not addressed. The applicant
did not specifically raise this issue at the second hearing but did so at the
first. At the first hearing, the applicant had submitted documentary evidence
indicating that, although the situation for baptized Sikhs in India has
improved in recent years, members of this group are always regarded as suspect
by the authorities and are at risk of being arrested. Although the second
hearing, which the applicant was entitled to following the order of Martineau
J., was a hearing de novo of his refugee claim, all the documents
pertaining to the first hearing had been placed in the file for the new
hearing. From this perspective, the Board could not refuse the applicant’s
refugee claim on the ground that it had no credible basis without considering
the credible and trustworthy evidence in the file regarding the applicant’s
status as a baptized Sikh and the risks of persecution associated with this
status.
[24]
The evidence concerning the applicant’s
membership in the group of baptized Sikhs is limited to the documentary
evidence filed at the first hearing and the applicant’s testimony. It should be
noted that the applicant also identified himself in his Personal Information
Form (PIF) as a member of the Sikh religion and stated therein that he had
performed the duties of a priest in a Sikh temple. Furthermore, the applicant’s
status as a priest was also corroborated by exhibits P‑2 and P-3, which
consisted of an affidavit of the sarpanch, Surjit Kaur, and a letter
from the Sikh temple in Ibrahimpur.
[26]
Accordingly, since there was uncontradicted
evidence in the file establishing that the applicant was a Sikh priest and
where the documentary evidence showed that baptized Sikhs are a group at risk
of persecution in India, the Board could not properly find that the applicant’s
refugee claim had no credible basis.
[27]
The Board was required to analyze the evidence
that baptized Sikhs were a group at risk of persecution in India and to assess
the risks faced by the applicant as a member of this group. The Board failed to
do so.
[28]
For these reasons, the application for judicial
review of the decision of the Immigration and Refugee Board, Refugee Protection
Division, will be allowed. The matter will be remitted for reconsideration by a
differently constituted panel in accordance with these reasons.
[29]
The parties did not submit a serious question of
general importance for certification as contemplated by subparagraph 74(d)
of the IRPA. I am satisfied that no such question was raised in this case.
Therefore, no question will be certified.
ORDER
THE
COURT ORDERS:
1. The application for judicial review of the
decision dated September 6, 2006, by the Immigration and Refugee Board, Refugee
Protection Division, is allowed.
2. The matter is remitted for reconsideration by
a differently constituted panel in accordance with these reasons.
3. No serious question of general importance is
certified.
“Edmond P. Blanchard”
Certified true translation
Mary Jo Egan, LLB
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