Date: 20040903
Docket: IMM-6436-03
Citation: 2004 FC 1213
Ottawa, Ontario, the 3rd day of September 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
SHARANJIT SINGH BHAGTANA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] By his application for judicial review the applicant is challenging the decision of July 31, 2003, rejecting his application for asylum.
POINT AT ISSUE
[2] Is this Court's intervention justified here?
[3] My answer to this is in the affirmative and I will allow the application for judicial review. I conclude that the impugned decision contains errors which in my opinion are patently unreasonable (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)).
FACTUAL BACKGROUND
[4] The facts reported by the panel are the following:
[TRANSLATION]
He is a citizen of India, but of Sikh nationality and religion. After completing his seventh year of schooling, he left school in March 1989 to begin work on the family farm. His brother works in the Sikh temple and he became a member of the Akali Dal Mann party in 1997.
As he was living in an area where terrorists were to be found, the police often made raids on the neighbouring farms to see whether Sikh or Pakistani terrorists, or drug traffickers, had taken refuge there.
At about 9 p.m., on March 13, 2000, three terrorists came to the family farm asking for food and shelter at gunpoint. However, when they saw police cars coming to the farm, they fled. Some police officers set off in pursuit. Others searched the applicant's farm and arrested him with his brother. They were charged with being terrorists and were questioned and tortured, then released after two days thanks to the help of the sarpanch and certain leading figures in the town, and the payment of a bribe of 36,000 rupees. They were also asked to help the police arrest the terrorists.
On April 2, 2001, the applicant's brother was on a motorcycle when he was approached by terrorists, who threatened him with their weapons. They seized the motorcycle and asked the applicant's brother not to report the incident to the police, or he would be killed.
The following day, early in the morning, the police raided the farm and searched it. They accused the applicant and his brother of giving the terrorists the motorcycle. The applicant's brother was absent and the applicant himself was arrested and taken to the police station. They took his fingerprints and his photo and ordered him to sign a blank document. He was then charged with having links with terrorists and helping them by giving them food, shelter and the motorcycle. He was then tortured and released after five days, again with the help of the village council and leading figures in the town and the payment of a bribe of 60,000 rupees. He was freed on condition that he report after one month and give the police information about his brother Kamaljit Singh and terrorists.
On May 8, he appeared and was beaten by the police because he had no information to give. He was released and ordered to report the following month, again to give information about his brother and terrorists. As he could not meet that condition, he decided to leave the village.
On May 25, 2001, he left for the home of his uncle Basant Singh at Paharganj in New Delhi. This is where he contacted an alien smuggler who enabled him to leave his country on December 14, 2001, and come to Canada.
[5] The panel concluded that the applicant was not credible.
ANALYSIS
[6] The panel objected that the applicant had contradicted himself about the following points.
1. In the Immigration questionnaire the claimant answered "No" to the question "Have you ever been detained or put in jail?" while in his Personal Information Form (PIF) and in his testimony he referred to being detained at the police station several times. When this was put to him, he explained he thought he was answering the question "put in jail" instead of "detained at the police station". This explanation was not absolutely improbable (Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.).
2. In the Immigration form regarding his personal history, the applicant answered "No" to the question "Have you ever had any serious diseases, physical or mental disorder?". When his testimony is compared, there appears to be a clear contradiction. Here again he explained that he had never been subject to serious physical or mental disorders but had been tortured several times. Further, he still had several scars attested to by physicians. This answer cannot be described as improbable (Owusu-Ansah, supra).
3. The panel alleged that he had indicated the address in his village as his last address before coming to Canada. Nevertheless, certain documents in the record signed by the applicant on his arrival in Canada did indicate "New Delhi" as his last place of residence before leaving India.
[7] Noting that there were several contradictions and improbabilities, the panel disregarded a letter from an Indian physician, a medical report from a Canadian physician and an affidavit from the sarpanch supporting the applicant's allegations and the story he told.
[8] The Court considers that the explanations given by the applicant are realistic and plausible. The panel did not take them into account. The fact that the Canadian medical report noted scars supports and corroborates the applicant's story.
[9] The Court finds the negative inferences drawn by the panel to be patently unreasonable. The claimant only had seven years of schooling and often asked that certain questions be repeated. Several times in the transcript, we find [TRANSLATION] "I do not understand the question". Was this a lack of communication or defective interpretation?
[10] In the particular circumstances of the case at bar, the decision should be quashed. The application for judicial review is allowed. The applicant's claim is referred back for consideration by a different panel of the Immigration and Refugee Board.
[11] The parties declined to submit any serious questions of general importance. No question will be certified.
ORDER
THE COURT ORDERS that the application for judicial review is allowed. The decision on July 31, 2003 is quashed and the applicant's claim is referred back for consideration by a different panel of the Immigration and Refugee Board. No question is certified.
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6436-03
STYLE OF CAUSE: SHARANJIT SINGH BHAGTANA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 31, 2004
REASONS FOR ORDER AND ORDER BY: MR. JUSTICE BEAUDRY
DATE OF REASONS AND ORDER: September 3, 2004
APPEARANCES:
Jean-François Bertrand FOR THE APPLICANT
Evan Liosis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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