Date: 19990927
Docket: IMM-6424-98
Ottawa, Ontario, September 27, 1999.
Present: THE HONOURABLE MR. JUSTICE DENAULT
Between:
MANDEEP SINGH CHAHAL
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed, the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated November 10, 1998, is set aside, and the matter is referred back to a different panel of the Board for rehearing.
PIERRE DENAULT
Judge
Certified true translation
Peter Douglas
Date: 19990927
Docket: IMM-6424-98
Between:
MANDEEP SINGH CHAHAL
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DENAULT J.
[1] In this case, the Court has to determine an unusual issue: whether it is open to the Refugee Division to find a refugee claimant not credible because there is no reference in his narrative of "significant incidents" (Question 37 of the Personal Information Form (PIF)) to an event mentioned in his testimony that involved others and occurred after he signed his statement; if not, whether he was required to report the event at the outset of the hearing when the panel invited him to amend his PIF if he wished.
[2] This is thus an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Refugee Division) dated November 10, 1998, that the applicant, an Indian citizen, is not a Convention refugee.
[3] A summary of the facts is necessary. The applicant ran a milk delivery business. On October 9, 1992, three armed men seized his vehicle, warned him not to report anything to the police and told him his vehicle would be returned to his family home. He and his parents were discussing this misfortune with the mayor of the village1 when shots were fired. As they entered the applicant"s house, the three armed men were exchanging fire with the police. When the applicant went inside the house, he saw three police officers searching the place and then saw his uncle and aunt sprawled dead on the floor. He fainted.
[4] The applicant was arrested, held for seven days and tortured. After this ordeal, he sold his delivery vehicle and went to live with an uncle in Calcutta. When the police came to inquire after him, his father told them his son had gone abroad.
[5] When the applicant returned to his village in 1997, the police arrested him. He then realized his problems with the police would continue on account of the 1992 incident. He felt there was no alternative but to seek international protection. He arrived in Canada on October 4, 1997, and claimed refugee status the same day.
[6] The Refugee Division found the applicant not credible based on implausibilities and inconsistencies in his testimony, including factual omissions in his Personal Information Form (PIF), and dismissed his refugee claim.
[7] In support of his application for judicial review, the applicant argues to begin with that the panel erred in law by introducing a new credibility concept. He also argues that the Refugee Division made unfounded findings of omission. I will come back to these two arguments later. Last, he argues that the panel found six implausibilities that go against him, and that all are unfounded. Knowing that it is for the Refugee Division to assess the facts and witness credibility, and that this Court must intervene only in the event of a patent error, I will refrain from intervening. The applicant has not convinced me that the panel"s assessment of some of the events he spoke of or included in his PIF was unreasonable. In my view, in light of the applicant"s explanations, some of the implausibility findings1 are of little relevance and barely reasonable, but they do not warrant this Court"s intervention.
[8] Having found these implausibilities in the applicant"s evidence, the panel made the following comment:
| All these events considered separately would not have prevented the claimant to be granted the benefit of doubt. Taken together, they led the panel to consider that Mr. Chahal is not a credible witness. |
The applicant sees in this comment by the Refugee Division the statement of a new credibility concept. He rephrases that comment as follows: apparently, each event does not deprive him of the benefit of the doubt, but taken together the same events remove the benefit of the doubt . . . and make the witness so much less credible that his testimony as a whole is invalidated and dismissed in its entirety. In my view, this proposition put by counsel for the applicant is sound if it means that an applicant who is given the benefit of the doubt about each event cannot be found not credible based on a subsequent refusal to give him the benefit of the doubt about the events taken together. Such a concept clearly makes no sense and would constitute an error in law with respect to which this Court would have to intervene.
[9] I am of the opinion that in the instant case, however, the Court"s intervention is unnecessary because the panel"s comment can be interpreted differently. In my view, the two sentences that comprise the comment the applicant considers erroneous must be split up and analysed separately. It was therefore not incorrect to begin by saying that all the events considered separately did not prevent the claimant from being entitled to the benefit of the doubt. By then stating that all those events, taken together, did not make him a credible witness, the panel was in my view no longer referring to the notion of the benefit of the doubt, but rather to the sum of events, which, having been found to be implausible, made him not credible. Thus, the Refugee Division"s comment does not state an unreasonable concept, as the applicant claims.
[10] There remains the last ground the applicant raised: the omissions the Refugee Division considered in finding him not credible. Those omissions, if well-founded, played a major role in that they are at the very root of the panel"s decision. The Refugee Division said the following:
| Yet, during his oral testimony, it became manifest that he omitted to mention in his PIF that, allegedly, he was detained and tortured during four days in 1997, that his father was arrested in January 1998 and had been into hiding since his release, and that his uncle in Calcutta was also arrested and released the same day. Asked to explain these omissions, the claimant stated that when the PIF was filled, the interpreter told him not to write everything. This explanation is not acceptable since he made some amendments when the hearing began and he confirmed afterwards that his PIF was true and complete. |
[11] After a careful review of the record, I am of the opinion that the first omission the applicant supposedly made"not mentioning in his PIF that he had been detained and tortured for four days in 1997"is not an omission, because in his narrative in reply to Question 37 of his PIF (p. 22 of the applicant"s record), he stated the following:
| After five years, I decided to come back hoping things have changed. After four days the police came home. I was arrested and taken to local police station. There they interrogated and asked me where I lived for such a long time. I again told them the truth, however they did not believe me again. |
| Rather they alleged that I was linked to militants and had come to Punjab again to bring violence back. The police threatened me they will kill me, pushed me around and beat me, as well. [Emphasis added.] |
In my view, under the circumstances, it was perverse for the panel to fault the applicant for such an omission when he had stated in his PIF that he had been detained and beaten.
[12] The other omissions the panel noted"his father and uncle"s arrests in January 1998"raise the unusual issue I set out at the beginning of these reasons. In this regard, it is important to review the specific facts pertaining to the analysis of this argument. The applicant signed his PIF on December 12, 1997 (p. 24 of the applicant"s record). In it, he stated facts that occurred in 1992 and 1997, before he came to Canada in October 1997. When the Refugee Division heard his claim on October 22, 1998, the presiding panel member asked the applicant whether he had any amendments to make to Question 37 of his PIF (p. 273 of the panel"s record). A minor amendment was made. It was only during his testimony that the applicant mentioned his father and uncle"s arrests in January 1998.
[13] As I said above, the panel dismissed the applicant"s claim because he omitted to state those facts in either his PIF or an amendment at the outset of the hearing. In my opinion, in so doing, the Refugee Division made an error that warrants this Court"s intervention.
[14] To begin with, it goes without saying that when the applicant signed his Personal Information Form on December 12, 1997, he could not have included events that were to take place only in January 1998. Should he have revealed them when invited, in October 1998, to amend his PIF? I do not think so. Otherwise, the applicant would have been invited to give a new account of the significant incidents relating to his claim, rather than to make amendments. Furthermore, it was not unreasonable for the applicant not to amend his PIF to state facts involving other people and only indirectly related to his refugee claim based on the persecution he claimed to have suffered.
[15] For these reasons, the application for judicial review must be allowed. In view of the conclusion the Court has reached, there is no serious question of general importance to certify.
PIERRE DENAULT
Judge
Ottawa, Ontario
September 27, 1999
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6424-98
STYLE OF CAUSE: MANDEEP SINGH CHAHAL v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: September 14, 1999
REASONS FOR ORDER OF DENAULT J.
DATED September 27, 1999
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Simon Ruel FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 Called "the village Sarpanch" in the applicant"s narrative.
2 That the applicant could not recognize two men at night; that his young sister did not stay at home in the evening with his uncle and aunt; that the police could not self-accuse; etc.
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