Date: 20021122
Docket: IMM-5054-01
Neutral citation: 2002 FCT 1213
Ottawa, Ontario, this 22nd day of November 2002
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
JASBIR SINGH SIDHU
ANGREZ KAUR SANDHU
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application, pursuant to section 82.1(1) of the Immigration Act, R.S.C. 1985 c. I-2, for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD"), dated October 4, 2001, wherein it was found that the applicants were not Convention refugees.
FACTS
[2] The applicants are citizens of India and are sister and brother. They allege a well-founded fear of persecution by reason of their political opinion imputed to them by the police and membership in a particular social group, namely, their family connections.
[3] The applicants are from a Sikh family and lived in the State of Punjab. In 1990, their father and uncle became members of Shromani Akali Dal, a political movement to establish an independent state for the Sikhs. The applicants claim that during 1991 and 1996, their father and uncle were arrested and tortured several times and that their house was searched many times.
[4] The applicants also claim to have problems due to Mr. Harminder Sandhu's friendship with Mr. Ajit Pal Singh. Mr. Sandhu is the female applicant's husband.
[5] The applicants were arrested on two occasions, December 10, 1998 and October 10, 1999. On both times they were questioned and tortured about the whereabouts of Mr. Sandhu.
[6] In November 1999, while the applicants were in Bombay at their aunt's house, their father was arrested by the police.
[7] In August 2000, while the male applicant was away from the house, the police raided the aunt's house and arrested the male applicant's wife and his sister, Mrs. Sandhu. The latter was again arrested on September 25, 2000. Following the August incident, the applicants made arrangements to leave India. The male applicant arrived in Canada on September 20, 2000 and made a refugee claim two days later, while the female applicant arrived in Canada on December 5, 2000.
THE CRDD DECISION
[8] The CRDD found the applicant's story implausible and not credible for the following reasons:
[9] The applicants alleged that they were at risk because Mr. Harminder Sandhu had been targeted by the police, yet this man was a simple farmer without any connection whatsoever to politics and, in any event, had left India in 1998;
[10] The country condition reports speak to an absence of military in the State of Punjab at the time that the applicants claim they were targeted;
[11] The country condition reports speak to the implausibility of the police being interested in the applicants, because the applicants were never active in politics nor were they involved in anything remotely political, and also because during the height of the militancy, the applicants claimed to have had no problems with the police.
[12] The CRDD found it difficult to believe that the police would not target the father who was one of the principle sources of the problems and instead, target the applicants .
ISSUES
[13] The issue is the following:
1. Did the CRDD base its decision on erroneous findings of fact, made in a perverse or capricious manner or without regard to the material before it, particularly the medical reports, and affidavits on file, as well as some documentary evidence?
SUBMISSIONS AND ANALYSIS
[14] My understanding of the decision is that the CRDD made an adverse credibility finding because it did not believe the applicants' story in general and that it based this conclusion primarily on the fact that the claim contained allegations of police abuse during the period when all the experts and documentary evidence speak of virtually no problems in Punjab. The CRDD was entitled to make such a determination. However, my assessment of the decision shows me that some important errors of fact were made by the CRDD.
[15] On questions of fact decided by the CRDD, the standard of review is whether the decision on the questions of fact was made in a perverse or capricious manner, or without regard to the material before the CRDD, as enunciated by Justice Pelletier in Matharu v. Canada (M.C.I.), [2002] F.C.J. No. 13 (F.C.T.D.) at paragraph 29:
Whether a decision made in a "perverse or capricious manner or without regard to the material before it" is merely unreasonable or is patently unreasonable may be a distinction without a difference. Unlike the "jurisdictional" questions where a judge made standard of review applies, on the question of error of fact, there is a legislated standard of review. It may be useful for purposes of comparison to liken it the standard of reasonableness simpliciter or patent unreasonableness but this does not change the standard. It may be that a finding of fact which is perverse or capricious is "clearly wrong" which would approximate the standard of reasonableness simpliciter (see Canada (Director of Investigation and Research, Competition Act) v. Southam [1997] 1 S.C.R. 748 at para. 60). In the end result, however, the question should be whether the particular finding is "perverse or capricious, or made without regard to the material before it."
[16] The applicants submit that the CRDD concluded that the applicants' story of persecution is implausible because of its mistaken understanding that their father who was politically active currently resides in India without persecution, when in fact he is deceased. The applicants' Personal Information Form ("PIF") narrative stated that their father died just before they left India. Also, the evidence on file does include the father's death certificate, confirming that he died on August 15, 2000 and it was mentioned during the hearing. Therefore the CRDD' s finding was clearly wrong in light of the evidence before it. This is certainly an error of fact.
[17] The CRDD found it difficult to believe that the father was not persecuted, since he was a principal source of the persecution problem of the applicants. This is an unreasonable determination because the applicants never said that their father was not persecuted and there is no evidence supporting the fact that the father was not persecuted. Quite to the contrary, the applicants' narrative and testimony stated that the father was a victim of persecution due to his involvement with the Shromani Akali Dal, led by Simranjit Singh Mann.
[18] This error of fact resulted in the negative inference that if the applicants' father, who is a primary source of persecution, is able to reside in India free of persecution, the applicants would similarly not be targeted. Therefore, having found that the CRDD committed an error with regards to the father's persecution, this inference cannot stand. Had the CRDD mentioned instead that it did not believe that the father was persecuted, then the implausibility could have stood. Counsel for the respondent, having admitted the error, is asking the Court to take out the paragraph which includes the error and allow the remainder of the decision stand on its own. I do not think this is possible since the factual errors contributed to the adverse credibility finding. Furthermore, this is the paragraph from which the CRDD begins to explain the reasoning behind the findings. It appears to me that the content of the paragraph is important in substance and has effectively impacted the reasoning of the Board. Thus, this crucial error goes to the very heart of the decision.
[19] The applicants further submits that the CRDD ignored the medical reports, the affidavits from friends of the family and some documentary evidence.
[20] The only reference the CRDD made to the medical reports is in the second paragraph of its decision: It said, "The evidence presented at the hearing by the claimants, their counsel and the refugee claims officer (RCO) consisted of the claimant's testimony, medical reports, some personal documents, and documents regarding the socio-political situation in India."
[21] In Gosal v. Canada (M.C.I.), [1998] F.C.J. No. 346, at paragraph 14, Justice Reed held that the need for the panel to refer, in its reasons, to medical reports filed in evidence will depend on the quality of that evidence and the extent to which it is central to the claim. He continued:
When such reports are nothing more than a recitation of the applicant's story, which the Board does not believe, and a conclusion based on symptoms, which the applicant has told the psychiatrist are being experienced, then, Boards cannot be faulted for treating such reports with some degree of scepticism. When they are based on independent and objective testing by a psychiatrist, then, they deserve more consideration.
[22] Justice Rothstein, in Javaid v. Canada (M.C.I.) (1993), 157 F.T.R. 233, held that:
As a general rule, the Court does not require that a panel address every piece of evidence or argument made before it as long as its decision is coherent and logical and is based on the evidence before it. Further, the weighing of evidence is solely within the purview of the panel.
However, a panel does not immunize itself from judicial review simply because it says it considered evidence. The circumstances must be taken into account. Where the evidence is specific and important to the applicant's case, prima facie credible and persuasive, I think a panel has some obligation, even very briefly, to explain why it is not persuaded by that evidence. In this case, I am not satisfied that the panel did have regard for the psychological assessment in arriving at its conclusion.
[23] Dr. Colavincenzo's medical opinions refer to scars that the applicants have and which would have been caused by torture. When the medical opinions are read in connection with their respective PIF narratives where they describe the traumatic events, it can only give to an objective reader an indication of prima facie evidence.
[24] In the case at bar, the CRDD did not even state whether it considered the said medical evidence, it only mentioned that it was part of evidence presented at the hearing by the applicants. In light of the above case law, I find that this is not sufficient. The CRDD did not even dispose of the medical evidence because of its implausibility finding. At the very least, it should have explained whether it affected their decision, and if so in what way.
[25] The respondent argues that in any event, there is no indication of this doctor's qualifications and that the letter demonstrate obvious bias. I am not in a position to evaluate the evidence on file, this was the CRDD's duty and counsel's submission cannot compensate for what the CRDD should have written. Surely if the CRDD thought that the doctor's qualifications were in dispute, and that his reports showed bias, it could have expressly rejected the evidence. This was not done. Using the wording of Justice Rothstein above, since the evidence was prima facie credible and persuasive, I think that the CRDD had the obligation, even briefly, to explain why it was not persuaded by that evidence.
[26] As for the affidavits of friends of the family, it is true that no mention was made of them, except for that second paragraph, supra, which indicates that personal documents were presented at the hearing. The respondent argues that the affidavits have a low probative value and are self-serving to the applicants cause. On this issue, in Ozdemir v. Canada (M.C.I.) (2001), 282 N.R. 394, the Federal Court of Appeal held at paragraphs 9 and 10:
As for the second point, which was based on the inadequacy of the reasons, if the PCDO was required by the duty of fairness to give reasons for her decision, her reasons sufficed to discharge that duty. Decision-makers are not bound to explain why they did not accept every item of evidence before them. Much depends on the significance of that evidence when it is considered in light of the other material on which the decision was based: see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
Nor will a reviewing court infer from the failure of reasons for decision specifically to address a particular item of evidence that the decision-maker must have overlooked it, if the evidence in question is of little probative value of the fact for which it was tendered, or if it relates to facts that are of minor significance to the ultimate decision, given the other material supporting the decision.
[27] I would normally agree with this position, however, in the case at bar, the evidence contained in these affidavit corroborates the applicants' testimony regarding the profile of their father and the fact that he was persecuted. Therefore, the evidence relates to facts that were significant to the ultimate decision. Had the CRDD considered this evidence, it would have given it the proper weight it thought it deserved according to the circumstances of the case.
[28] As for the documentary evidence, there is no requirement for the CRDD to refer to all of the evidence mitigating against its finding. It is trite law that the CRDD need only cite some of this evidence as opposed to every item. In fact, the CRDD cited much mitigating evidence in its decision.
[29] I believe that there are sufficient errors of fact which are central to the claim to consider the decision patently unreasonable in light of the evidence that was before the CRDD. From this standpoint and for the above reasoning, I think the CRDD decision should be quashed and the matter be sent back for re-determination by a different panel.
[30] Counsel for the parties were asked to suggest question to be certified. They declined the offer.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review of the CRDD decision is allowed;
The CRDD decision is quashed; and
The matter is being sent back for re-determination by a different panel. No question is to be certified.
"Simon Noël"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5054-01
STYLE OF CAUSE : JASBIR SINGH SIDHU and ANGREZ KAUR SANDHU and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING : Toronto, Ontario
DATE OF HEARING : November 19, 2002
REASONS FOR ORDER : THE HONOURABLE JUSTICE SIMON NOËL
DATED : November 22, 2002
APPEARANCES :
Lani Goslan FOR THE APPLICANT
Stephen Jarvis FOR THE RESPONDENT
SOLICITORS OF RECORD :
Max Berger & Associates FOR THE APPLICANT
Toronto, Ontario
Department of Justice FOR THE RESPONDENT
Ontario Regional Office
Toronto, Ontario
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