Date: 20030527
Docket: IMM-1388-02
Citation: 2003 FCT 656
Ottawa, Ontario, May 27, 2003
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
DALJIT SINGH GILL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated March 6, 2002, which concluded that the applicant is not a Convention refugee.
Facts
[2] Daljit Singh Gill is a citizen of India. He alleges he was persecuted by Sikh militants. His claim is based on the following allegations:
C Some Sikh soldiers visited the family farm in February and October 1994, to obtain food and shelter for the night. After the arrest of one of these militants, and while the applicant was visiting his aunt, the police raided the family farm and arrested his father and his brother (Harjit), accusing them of aiding the militants.
· In September 1995, after the assassination of a minister in Punjab, the police raided the farm again and this time arrested Mr. Gill and his brother for the purpose of interrogating them. Mr. Gill was beaten and tortured before being released thanks to the intervention of the village council and his "sarpanch" (chief of the village council).
· Mr. Gill's parents decided to send the two brothers to live elsewhere; Mr. Gill to Calcutta and his brother, Harjit, to Muzaffarnagar, U.P.
· For close to five years, Mr. Gill worked for his uncle unloading trucks in the family trucking firm.
· At the end of August 2000, at the time of an automobile accident, Harjit was arrested in U.P. Mr. Gill's uncle was notified of the arrest, and sent him to live with one of his friends for a while.
· Several days later, the police made another raid, this time in Calcutta at his uncle's and at the trucking firm. His uncle decided that he could no longer keep him at his home.
· Mr. Gill's family therefore made arrangements to transfer him to Delhi in October 2000. There, he learned from his father that the police denied they had arrested Harjit. No one knows where Harjit is.
· While he was living in a room in Delhi, Mr. Gill was again arrested in a raid in the neighbourhood. Having identified him, the Delhi police turned him over to the Punjab police, who tortured him again and interrogated him concerning some recent bombings in Punjab and Delhi. He was again released on condition of reporting to the police every month. His father then organized his flight from India to Canada.
[3] To corroborate his story, Mr. Gill filed with the Board the affidavit of Mr. Tilakraj, the sarpanch of the village of Balachour, dated November 14, 2001, and a letter from the Jaskaram Hospital signed by Dr. Inder Mohan Singh, dated December 10, 2001.
[4] The Board rejected Mr. Gill's claim, saying his lack of credibility was the decisive issue. The Board then listed a series of contradictions that had led it to reject Mr. Gill's credibility; several are based on a comparison between the notes taken at the point of entry (NPE) and the personal information form (PIF). However, the Board does not discuss the documentary evidence filed in the case in its decision.
Issues
[5] Mr. Gill submits that the Board mistakenly interpreted the evidence presented and that the contradictions cited as the basis for finding that Mr. Gill is not credible are (i) unsupported by the evidence, or (ii) based on superficial factors, or (iii) ignore the explanations that were presented and lack sufficient reasons. Mr. Gill also submits that the Board failed to consider or comment on the documentary evidence that corroborates the major facts in his claim.
Analysis
[6] The applicable standard of review of the Board's decisions was recently described in the Federal Court of Appeal decision in Harb v. Canada (M.C.I.), 2003 F.C.A. 39, [2003] F.C.J. No. 108 (QL), at para. 14:
In so far as these are findings of fact, they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal Court Act, and is defined in other jurisdictions by the phrase "patently unreasonable"). These findings, in so far as they apply the law to the facts of the case, can only be reviewed if they are unreasonable. In so far as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous. (On the standard of review, see Shrestha v. The Minister of Citizenship and Immigration, 2002 FCT 886, Lemieux J. at paras. 10, 11 and 12.)
[7] I propose to examine first the second issue raised by Mr. Gill.
[8] The respondent submits that since the Board had found that Mr. Gill lacked credibility, it could extend this finding to all of the evidence filed by him in support of his claim. The respondent cites, to this effect, the Federal Court of Appeal's decision in Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 338 (FCA).
[9] The respondent adds that in any event the mere fact that the Board did not mention each of the documents that were produced in its decision is no basis for concluding that it did not consider them (Florea v. Canada (M.E.I.), [1993] F.C.J. No. 198 (FCA).
[10] The hospital letter was filed in order to corroborate the allegation of torture, an important factor in Mr. Gill's story. It specifies the dates of two stays in the hospital; these dates coincide with the end of the two imprisonments during which Mr. Gill alleges he was beaten by the police. It also describes the injuries for which he was treated:
Severe pain and bruises all over body especially both thighs, feet, soles. Haematomas at the back due to torture and stitches on left eyebrow and wounds in the head.
He was treated by following medicines. .....
[11] The affidavit of the village chief (sarpanch), Mr. Tilakraj, corroborates all of the essential points in Mr. Gill's claim: the arrest of his father, his arrest and the arrest of his brother, the harassment suffered by his family, the disappearance of his brother, as well as the fact that his parents have now left the village and that the council had to intervene to obtain their release.
[12] It also appears from the transcript that during the hearing before the Board, the refugee officer did not question the authenticity of these documents.
[13] The panel notes that in the Court of Appeal decision in Sheikh, supra, the Court dealt with a finding of no credible basis for a claim within the meaning of the old section 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2.
[14] In Rahaman v. Canada (M.C.I.), [2002] 3 F.C. 537 (F.C.A.), the Federal Court of Appeal clearly held that a finding that the claimant's testimony is not credible is not comparable to a finding of no credible basis unless the Board has considered all of the evidence that was put before it including the claimant's testimony and all of the documents filed in evidence and any other testimony.
[15] It is clear that in this case the Board simply concluded, in light of the contradictions that emerged in the evidence, that Mr. Gill's testimony was not credible.
[16] As to the second decision cited by the respondent, the Court notes that it is also clear, since the decision in Cepeda-Gutierrez v. Canada (M.I.C.), [1998] F.C.J. No. 1425 (QL), and the decisions that followed it, that the obligation to comment on documentary evidence in a decision depends on the importance of that evidence. The Board's duty to explain itself increases with the relevance of the evidence.
[17] As I have said, the documentary evidence ignored by the Board in its reasons bears on facts that are at the very heart of Mr. Gill's claim. As in Ngoyi v. Canada (M.C.I.), [2000] F.C.J. No. 272, I conclude that this omission is fatal to the Board's decision.
[18] In view of this conclusion, there is no need for the Court to decide the merits of the other arguments presented by Mr. Gill. However, the Court notes that a number of these arguments were serious. For example, the Board misinterpreted the evidence when it states in its decision: "According to the claimant, he was first arrested on September 2nd, 1995, along with two others. He never said that his brother Harjit was arrested as well on this occasion despite a couple of follow ups.... He is not a credible witness." In fact, the transcript of Mr. Gill's testimony indicates clearly: "No I am telling you that my brother and I were both arrested on the 2nd of September and two boys from the village were caught."
[19] The application for judicial review is allowed. Mr. Gill's claim is returned to the Board for reconsideration by a newly constituted panel.
[20] I agree with the parties that this case does not raise any question of general interest.
ORDER
THE COURT ORDERS:
1. The application for judicial review is allowed. The Board's decision dated March 6, 2002, is set aside. The claim is returned for reconsideration by a newly constituted panel.
2. No question of general interest is certified.
"Johanne Gauthier"
Judge
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: IMM-1388-02
STYLE: Daljit Singh Gill v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 19, 2003
REASONS FOR ORDER OF Madam Justice Johanne Gauthier
DATED: May 27, 2003
APPEARANCES:
Michel LeBrun FOR THE APPLICANTS
Daniel Latulippe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel LeBrun FOR THE APPLICANTS
1231 Ste-Catherine W.
Montréal, Quebec H3G 1P5
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
East Tower, 9th Floor
200 René-Lévesque Blvd. W.
Montréal, Quebec H2X 1X4
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