Sethi v. MCI, docket IMM-1483-00

Date: 20001101

Docket: IMM-1483-00

OTTAWA, ONTARIO, NOVEMBER 1, 2000

BEFORE: TREMBLAY-LAMER J.

Between:

RAJU SINGH SETHI

Plaintiff

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

ORDER

The application for judicial review is allowed. The tribunal's decision is quashed and the matter referred back to another panel for re-hearing.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

Date: 20001101

Docket: IMM-1483-00

Between:

RAJU SINGH SETHI

Plaintiff

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

REASONS FOR ORDER

TREMBLAY-LAMER J.

[1]         This is an application for judicial review against the decision of the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") that the plaintiff is not a Convention refugee.

[2]         The plaintiff is an Indian citizen. In support of his claim, he alleged that he has a reasonable fear of persecution because of his membership in a particular social group or his political opinions.

[3]         The plaintiff alleged that he had been unlawfully detained, tortured and threatened with death by the police for his supposed participation in the AISSF group.

[4]         The Refugee Division dismissed the claim on the ground that he was not credible.

[5]         It is clear that the tribunal has complete jurisdiction to assess the plausibility of testimony and draw the necessary inferences from it.^[1] Further, as counsel for the defendant pointed out, there is no doubt that the tribunal does not have to comment on all the evidence entered in the record.

[6]         However, when a document relates specifically to the plaintiff and it supports the central aspect of his claim, the tribunal cannot disregard it without giving reasons for doing so.

[7]         In the case at bar, the tribunal made no mention of the medical report entered in evidence. As in Kouassi,^[2] I consider that the tribunal should have explained why it attached no weight to a detailed medical report which at least in part corroborated the facts central to the plaintiff's claim, in particular the multiple scars which could be consistent with his allegations of torture:

In addition, the panel did not make any reference in its reasons to the medical report filed in evidence. That report is dated July 16, 1996, and was prepared by Dr. Pierre Dongier, who examined the applicant here in Canada. The report corroborates the applicant's allegations, to a point. Dr. Dongier states that the applicant [TRANSLATION] "presents physical marks, as well as psychological symptoms, that are consistent with his description of the violence he says was done to him".

Although the panel did not have to comment on all the evidence in the record, it did, in my opinion, have to address this report and explain why it placed no weight on it. As Gibson J. stated in Atwal v. Canada (Secretary of State):

It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. The fact that a Tribunal fails to do so does not, in ordinary circumstances give rise to a conclusion that the Tribunal has failed to take into account all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal's decision.^[3]

[8]         Similarly, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration)^[4] Evans J. noted the nature of this duty imposed on the tribunal: "the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts".^[5]

[9]         This error is serious enough to vitiate the tribunal's decision. The application for judicial review is accordingly allowed. The tribunal's decision is quashed and the matter referred back to another panel for re-hearing.

OTTAWA, ONTARIO

November 1, 2000

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                 FEDERAL COURT OF CANADA

                                                                TRIAL DIVISION

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                                                   IMM-1483-00

STYLE OF CAUSE:                                      RAJU SINGH SETHI

v.

MCI

PLACE OF HEARING:                                  MONTREAL, QUEBEC

DATE OF HEARING:                                    OCTOBER 20, 2000

REASONS FOR ORDER BY:                      TREMBLAY-LAMER J.

DATED:                                                          NOVEMBER 1, 2000

APPEARANCES:

KATHLEEN GAUDREAU                                                     FOR THE APPLICANT

GUY M. LAMB                                                                        FOR THE RESPONDENT

SOLICITORS OF RECORD:

KATHLEEN GAUDREAU                                                     FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                                                  FOR THE RESPONDENT

Deputy Attorney General of Canada