Date: 20080402
Docket: IMM-3605-07
Citation: 2008
FC 417
Ottawa, Ontario, April 2,
2008
PRESENT: The Honourable Justice Johanne Gauthier
BETWEEN:
Harjinder
Singh Bajwa
Applicant
and
Minister
of Citizenship and Immigration
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Bajwa seeks judicial
review of the Refugee Protection Division’s decision rejecting his claim under
sections 96 and 97 of the Immigration and Refugee Protection Act. S.C.
2001, c. 27.
[2]
The
applicant is a young man from India who owned a farm of about 25
acres in the village of Mudowwal, in Punjab province. One of his
hired hands, who worked several summers before being hired permanently and
given lodging, was a Muslim named Tarik. One day in April 2005, Tarik received
a friend who apparently left a bag containing a gun and a small bomb in his
room on the farm. This bag was found by the police who came to search Tarik’s
room shortly after he and his friend left the farm the next day. After this
discovery, the applicant was allegedly arrested, beaten and tortured by the
police, who wished to elicit information about the whereabouts of Tarik and his
visitor, whom they suspected of being J&K militants.
[3]
In his PIF
and his testimony at the hearing before the RPD, the applicant indicated that
he was released after a few days detention upon the intervention of the
Sarpanch and the payment of a bribe of 25 000 rupees, and having been made to
promise that he would notify the police of any new information he might learn
concerning Tarik or his friend. In support of his story, the applicant
produced documentary evidence from the medical clinic where he was treated upon
his release (at p. 307 of the certified record), as well as other documents, such
as an affidavit of the Sarpanch (at p.305) and documents related to the farm
(at pages 291-299).
[4]
About two
and a half months later, on July 3rd, 2005, Tarik and his friend
allegedly returned to the farm in the evening to claim their bag. When told by
the applicant about the police raid and his arrest and detention, they threatened
him and struck him over the head with a gun. They were interrupted however by
the sound of an approaching car, at which point they took fright and fled into
the fields, leaving the applicant shaken and afraid. On the advice of his
father, the applicant decided that with his father and the Sarpanch, he would
go to the police the next morning to report the incident.
[5]
The police
inspector was apparently furious that he had not been advised more promptly of
the appearance of Tarik and his friend at the farm. He asked the Sarpanch and the
applicant’s father to leave the room and proceeded to arrest and detain the
applicant for another three days, during which time he was again beaten and
mistreated. Again, he was allegedly released only after the intervention of
the village council and the payment of a bribe of 40 000 rupees. This time, and
under threat of death, the applicant was instructed to report back to the
police on August 1st with definite information on the actual
whereabouts of the two suspected militants.
[6]
Before the
expiration of the deadline, the applicant and his family went into hiding in
different places. When told by his neighbour that the police actually showed
up to ask about him after August 1st, he decided to flee with the
help of an agent, but using his own passport. With the agent’s help and advice,
he obtained a visa to visit his sister in Canada and to pass through Indian immigration
at the airport without facing any questions.
[7]
The RPD
rejected the claim about four months after the hearing in an unusually short
decision, which contains an analysis of no more than four paragraphs. In the
first two paragraphs the RPD explains that it rejects the applicant’s story as
inherently implausible because a) it was implausible that a person suspected of
representing a danger to the Indian State because of his association with
dangerous terrorists from Kashmir could be released at the urging of the
Sarpanch after only two or three days in custody; and b) that his second arrest
and release through the intervention of the village council and Sarpanch was also
implausible. It is not clear on what basis this finding in respect of the
second arrest was made; it is merely followed by various questions: If the
Sarpanch is so influential, why did he not object to the claimant’s arrest? Why
did he wait three days before intervening and allow him to be subjected to
torture for a second time?
[8]
The next
two paragraphs deal with the availability to the applicant of an internal flight
alternative (IFA). In that respect, the RPD wrote:
The panel also examined the possibility
of an internal flight alternative should the claimant’s story be credible. The
claimant alleged that he could be found wherever he goes in India. He was unable to satisfactorily tell
the panel how he, who is not a militant and who does not have an arrest warrant
issued against him, could be found if he used an internal flight alternative.
The panel points out the documentary
evidence that clearly demonstrates that an internal flight alternative is
possible for the claimant if his story is true and that he could be employed.
[9] The footnote labelled “2”
refers to chapter 6.194 of the October 5, 2005 U.K report found at pages 73 and
following of the certified record. The applicant argues that the
implausibility finding is totally unreasonable and cannot be saved by the “pseudo
analysis” of the IFA issue, which refers to neither the explanation given by
the applicant at the hearing nor to the specific documentary evidence referred to
during the hearing, or to other documentation directly contradicting the finding
that the issue is “clear”.
Analysis
[10]
In respect
of those two questions of fact, in light of the decision of the Supreme Court
of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 and the pragmatic
analysis undertakenseveral judgments of this Court in respect of similar findings
of the RPD, there is little doubt that the standard of reasonableness must be
applied here.
[11]
At
paragraph 47 of Dunsmuir, it is set out that “[a] court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and the law.” This passage appears to have been adopted in
substance by the Federal Court of Appeal in Canada (Attorney General) v. Grover, 2008 FCA 97, at paragraph 6.
[12]
The
applicant adds that the Court should continue to apply the teachings of Canada (Director of Investigation
and Research) v.
Southam Inc., [1997] 1 S.C.R. 748, at paragraph 55, as regards the
content of the reasonableness standard. For the respondent, it is significant
that the Supreme of Canada in Dunsmuir did not deal specifically with
credibility findings, and says that it is not clear that it intended in any way
to attenuate the deference previously accorded decision makers in respect of
such findings, under the patent unreasonableness standard of review.
[13]
In this
particular case, whether the Court were to evaluate the decision against the
old standard of patent unreasonableness or the new standard of reasonableness set
out in Dunsmuir, there would be cause to intervene.
[14]
Despite
the fact that they were issued several months after the hearing, it cannot be
disputed that the reasons supporting the RPD’s implausibility findings are
hastily drawn and minimally developed. The applicant’s contention that they
are out of step with the teachings of the jurisprudence is well taken.
[15]
As noted
by Justice Edmond Blanchard in Divsalar v. Canada (Minister of Citizenship and
Immigration), (2002) F.C.T. 653, at para. 24:
Further, it is
accepted that a tribunal rendering a decision based on a lack of plausibility
must proceed with caution. I find it useful to reproduce the following passage
from L. Waldman, Immigration Law and Practice, (Markham: Butterworths Canada
Ltd. 1992) at page 8.10, paragraph s. 8.22 which deals with plausibility findings
and the impact of documentary evidence that may be before the tribunal:
s.8.22
Plausibility findings should only be made in the clearest of cases - where the
facts as presented are either so far outside the realm of what could reasonably
be expected that the trier of fact can reasonably find that it could not
possibly have happened, or where the documentary evidence before the tribunal
demonstrates that the events could not have happened in the manner asserted by
the claimant. Plausibility findings should therefore be "nourished"
by reference to the documentary evidence. Moreover, a tribunal rendering a
decision based on lack of plausibility must proceed cautiously, especially when
one considers that refugee claimants come from diverse cultures, so that
actions which might appear implausible if judged by Canadian standards might be
plausible when considered within the context of the claimant's background.
[16]
In respect of the first and second arrest, the RPD
appears to have assumed that the police thought that the applicant himself represented
a danger to the Indian State, and that he personally committed a grave crime. There is simply no
evidence to that effect. The evidence from the applicant himself was that the
police suspected him of aiding potential militants by offering them shelter.
Moreover, considering the ample documentary evidence attesting to widespread
corruption within the Indian police and the frequency of arbitrary arrest, the RPD
could not have based its assumption solely on the fact that the applicant was
arrested.
[17]
It is also unclear how one could reasonably
conclude based on common sense alone, and in light of the documented conditions
in India, that it would be
implausible for the police to release a person like the applicant on the
payment of a bribe. In the circumstances, the RPD would have had to indicate
on what particular documentory evidence or specialized knowledge it relied
upon, if any, to come to its conclusion. Without this information, the Court
cannot properly assess its reasoning.
[18]
With respect to the second and only other reason set
out for rejecting the testimony of the applicant and the corroborating evidence
produced, it is unclear which part of the story was found to be implausible.
Did the RPD believe that the village council or the Sarpanch would have had the necessary clout
to prevent the arrest of the applicant, if as it was alleged, the Sarpanch accompanied
the applicant when he went to the police? If so, there is no evidence in the
certified record supporting any such conclusion. The applicant himself testified
only that the Sarpanch was an elected official, a respected person, and later the
Chief of his village.
[19]
If instead
what triggered the conclusion of implausibility was the allegation that the council
only intervened to secure the applicant’s release three days after the arrest,
once again the only evidence on file is the testimony of the applicant, who
indicated that he did not know when the Sarpanch or the village council
intervened, or whether they were obliged to negotiate his release while he was
in detention, because he simply was not privy to that information. In the
circumstances, the RPD’s assumption that the intervention only came about three
days after the arrest is difficult to follow. In the absence of a specific
reference to documentary evidence or specialized knowledge supporting this
finding, again here the Court cannot conclude that it was reasonably drawn from
the evidence on file.
[20]
It remains to
be considered whether these errors are material to the outcome, given the RPD’s
second conclusion as regards the existence of an IFA. The applicant noted that
the language of the first paragraph of the portion of the decision which deals
with an IFA (cited above at paragraph 8) leaves the impression that the RPD failed
to appreciate that the determination as to the existence of an IFA relies on an
objective test. To conclude in the sense urged by the applicant would require
that one read the sentence to indicate that the RPD only considered the applicant’s
explanation, and had no regard to the documentary evidence dealing with persons
similarily situated.
[21]
The Court is not prepared to come to such a
conclusion on the sole basis of the wording of the first paragraph.
[22]
But what is more troubling is the fact that at the
hearing, the RPD specifically refered to paragraph 6.194 of the U.K report, the
only document cited to support its conclusion that there was “clearly” an IFA
for the applicant. The applicant initially answered that were he to relocate, a
newcomer like him would quickly attract the attention of the local police, who
would then require him to identify himself. Later, his counsel made a point of
noting during his statement that the particular information relayed by the UK report was dated, and was in fact contradicted
by other documents on file. Counsel drew the RPD’s attention to the fact that in
the time since the U.K report was issued, the police in several areas have instituted
mandatory tenant verification forms, through which it is ostensibly possible to
track newcomers to various districts (see pages 273 and following of the
certified record, as well as the copy of one such form reproduced at page
283). There is also evidence on the record that makes it clear that the Punjabi
police will track down people whom they want to track; this appears to be undisputed.
What is the subject of some contradictory evidence in the documentation is the
profile of persons for whom the police would actually make such an effort. Some
documentation indicates that it is “high profile” suspects that are at risk,
while elsewhere it is suggested that any person who has been the subject of
human rights abuses in the past would be at risk, particularly those of the
lower economic class and with no political clout. (see for example IRBC
document no. IND100771.EFX at p. 77 of the certified record)
[23]
In light of the above, the Court agrees with the
applicant that the use of the word “clearly,” considered alongside the impugned
decision’s lack of any specific reference to either the applicant’s detailed
explanation at the hearing or the documentation referred to, leads one to
conclude that either the RPD failed to appropriately articulate the reasons for
its decision, or simply failed to consider the specific explanation and
documentation referred to by the applicant at the hearing, for in this
particular instance, the Court is prepared to infer as much from the RPD’s
silence (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),
[1998] F.C.J. No. 1425). Either way, these flaws vitiate the RPD’s conclusion
in respect of the existence of an IFA.
[24]
As noted at the hearing, the Court certainly does
not wish to discourage succinct and shorter reasons, but as a famous author
once wrote, “I have made this letter longer than usual, only because I have not
had time to make it shorter”. Brevity demands clarity and precision; absent
these qualities, brief reasons will risk falling short of the requirements of
both the reasonableness standard of review and the duty of fairness. The
essential point is that reasons must be sufficiently clear and intelligible to
enable a reviewing Court to discharge its duty.
[25]
Obviously, none of these comments should be taken to
reflect on the underlying merits of the claim and availability or not of an IFA
for the applicant in India.
[26]
The parties
did not present any questions for certification. The Court is satisfied that
this case turns on its own facts and involves no question of general interest.
ORDER
THIS COURT ORDERS that the application is granted. The
decision is set aside and the matter will have to be reconsidered (after a new
hearing) by a new panel differently constituted.
“Johanne
Gauthier”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3605-07
STYLE OF CAUSE: Harjinder
Singh Bajwa. v. MCI
PLACE OF
HEARING: Montréal,
Québec
DATE OF
HEARING: March
18, 2008
REASONS FOR
JUDGMENT
AND JUDGMENT: GAUTHIER J.
DATED: April
2, 2008
APPEARANCES:
|
Mr.
Jean-François Bertrand
|
FOR THE APPLICANTS
|
|
Ms. Lisa
Maziade
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Bertrand,
Deslauriers
Montreal, QC
|
FOR THE APPLICANTS
|
|
Department of
Justice
Ms. Liza
Maziade
Montreal, QC
|
FOR THE RESPONDENT
|
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