Date: 20040317
Docket: IMM-841-03
Citation: 2004 FC 407
BETWEEN:
GURDEV SINGH KALSI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), wherein the Board determined that the applicant was not a Convention refugee nor a person in need of protection according to the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] The applicant is an Indian citizen, born on January 2, 1955. He arrived in Canada on November 23, 2001, and claimed refugee status on November 26, 2001. He claims a fear of persecution on the basis of imputed political opinions. Moreover, the applicant submits that he is a person in need of protection because he is subject to a risk to his life or to a risk of cruel and unusual treatment or punishment if he returns to his country of origin, and he alleged the following facts in support of his claim.
[3] The applicant was the owner of a tractor repair shop. On January 10, 1999, police raided his shop looking for one of his students, Amrik Singh, in order to interrogate him on his ties to terrorists. When they did not find Singh, they arrested the applicant and tortured him in order to get him to admit his own ties to terrorists. He was released five days later as Singh was arrested.
[4] On July 24, 2000, there was an explosion in Ballan. On July 25, 2000, police raided the applicant's house and interrogated him concerning Singh. The police allegedly felt Singh had become a "high profile militant".
[5] The applicant was unable to provide them with any information. He was arrested and tortured once again. He was released two days later on the condition that he help them capture Singh and other terrorists.
[6] On August 12, 2001, Singh appeared at the applicant's shop with some militants and asked him to repair their Jeep. A few minutes later, after having spotted two police vehicles, they escaped through the rear of the shop. After having arrested one of the militants and having found weapons in the back of their vehicle, the police proceeded to arrest and torture the applicant again.
[7] The applicant was released on August 16, 2001 on the condition that he help in the arrest of Singh and his militant friends.
[8] The Board concluded that the applicant was not credible mainly because the applicant was not able to show that he was actually in India during the period when he alleged his problems took place.
[9] The respondent correctly submitted that according to the Federal Court of Appeal's decision in Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238, a general finding of lack of credibility on the part of the applicant can extend to all the relevant evidence emanating from his testimony and conclude in a finding that there is no credible evidence upon which the applicant can base his claim.
[10] However, where there is relevant evidence that does not emanate from the claimant's testimony which can link the claimant to his claim, the Board must consider it (Vijayarajah v. Canada (Minister of Citizenship and Immigration) (1999), 167 F.T.R. 295). In the case at bar, the Board rejected the medical evidence from Dr. Kang where he mentioned that the applicant was treated at the Nirmal Hospital on January 15, 1999 and July 27, 2000, suffering from multiple injuries, bruises and pain. Dr. Kang states that he also treated the applicant on August 16, 2001 for multiple injuries, including severe burns on his back and his legs, bruises and pain.
[11] I am of the opinion that before making a conclusion in regards to the applicant's credibility, the Board had an obligation to deal with the evidence contained in this medical document, not only because it corroborated the applicant's testimony that he was in India during the time period in question, but also because it demonstrates that the applicant had suffered from injuries that could be the result of torture. The significance of this evidence increases when one considers that the dates of the applicant's three hospital visits correspond exactly to the alleged incidents of torture. Moreover, Dr. Kang includes in his testimony that the applicant had told him at the time that his injuries had been the result of torture by the police. This also corroborates the applicant's claim.
[12] In summary, while I am aware that it is not the role of this Court to substitute its findings of fact for those of the Board, I am of the opinion that the medical evidence was particularly relevant and should have been included in the Board's analysis of the applicant's credibility. The fact that the Board simply rejected this evidence once it had found the applicant not to be credible is a patently unreasonable error.
[13] For these reasons, the application for judicial review is granted. The matter is referred back for redetermination by a differently constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.
Montréal, Quebec
March 17, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-841-03
STYLE OF CAUSE:
GURDEV SINGH KALSI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 16, 2004
REASONS FOR ORDER :
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: March 17, 2004
APPEARANCES:
Mr. Stewart Istvanffy FOR APPLICANT
Ms. Diane Lemery FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Stewart Istvanffy FOR APPLICANT
Montréal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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