Date: 20080114
Docket: IMM-2008-07
Citation: 2008 FC 22
Ottawa, Ontario, January 14,
2008
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
HARJINDER
SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1]
This is an application for judicial review of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (hereinafter
the RPD), finding that applicant is not a “Convention Refugee” or a “person in
need of protection” as defined by sections 96 and 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27.
[2]
The
applicant is a citizen of India who came to Canada on August 15, 2003, with a visa,
hoping that the Canadian Sikh community would sponsor him. He filed his refugee
claim on June 30, 2005. Accused of having ties with terrorists, he
alleges that he was arrested and tortured by the police in Delhi several
times between August 2001 and December 2002.
[3]
The
RPD condemned the applicant inter alia for having failed to file any
document directly corroborating his story. According to the RPD,
. . . To
corroborate his story, he filed exhibits P-7 to P-9, letters from people he
does not know. However, he could have filed affidavits or letters from his
wife, his mother or his father
. . .
The panel would
like to believe that hearsay is admissible, but it is admissible only when
there is no other alternative. .
. .
One thing is
certain: exhibits P-7 to P-9 are hearsay in the truest sense of the term. In
addition, the claimant was unable to provide reasons why he filed these
exhibits, while he could have filed evidence that was more credible.
. . .
In light of the preceding, the panel
determines that the claimant did not provide clear and convincing evidence of
the facts in his story. His evidence is not complete, although it could have
been.
.
[Emphasis added.]
[4]
The
applicant submits that the RPD erred in law by applying the “clear and
convincing” standard of proof. He also argues that this panel erred in fact in
its analysis of the evidence.
[5]
Even
though we afford the RPD considerable deference regarding its findings of fact,
on questions of law the applicable standard of review is that of correctness (Pissareva
v. Canada (Minister of
Citizenship and Immigration) (2000), 11 Imm. L.R. (3d) 233,
[2000] F.C.J. No. 2001 (F.C.T.D.) (QL)).
[6]
In
my opinion, the RPD, in this case, erred in law when it applied the “clear and
convincing” standard of proof to the applicant’s claim. In order to claim
refugee status, a claimant has the burden of establishing on a balance of
probabilities that he has a well-founded fear of persecution. It is only on the
issue of State protection that the burden requires clear and convincing
evidence (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689).
[7]
In
my opinion, this error in law is sufficient to justify the intervention of the Court.
[8]
The
application for judicial review is therefore allowed, the RPD’s decision is set
aside and the matter referred back to a differently constituted panel of the Refugee
Protection Division for redetermination.
“Yvon
Pinard”
Ottawa, Ontario
January
14, 2008
Certified
true translation
Kelley
A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2008-07
STYLE OF CAUSE: HARJINDER SINGH v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE
OF HEARING: Montréal,
Quebec
DATE
OF HEARING: December
4, 2007
REASONS
FOR JUDGMENT: Pinard J.
DATE
OF REASONS: January 14, 2008
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS
OF RECORD:
Michel
Le Brun FOR THE APPLICANT
Montréal, Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENT
Deputy
Attorney General of Canada
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