Date: 20100217
Docket: IMM-1311-09
Citation: 2010 FC 161
Toronto, Ontario, February 17, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
DHARMINDER
KUMAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board that the applicant was neither a
Convention refugee nor a person in need of protection within the meaning of the
Immigration
and Refugee Protection Act, R.S.C. 2001, c. 27.
[2]
The
case is unusual in that the Board Member who presided over the hearing did not
make the decision. The decision under review was made, on consent, by another
Board Member on the basis of the transcript and documentary evidence. The
determinative issues were credibility, plausibility, and the availability of an
internal flight alternative (IFA).
[3]
For
the reasons that follow, this application for judicial review is granted.
BACKGROUND
[4]
Mr. Kumar is a citizen
of India and a member
of the Sikh faith. He was a farmer in Punjab state. He
alleges that on the night of January 15, 2005, five members of the separatist
party, Akali Dali, entered his house and forcibly demanded a meal. Mr. Kumar complied.
[5]
He
says that the next day, a number of Punjab police officers came to his house,
assaulted him, detained him, and took him to the police station. He was
interrogated about his involvement with the separatists and he says that he was
tortured. His father was able to obtain his release three days later after
paying a bribe.
[6]
On
April 13, 2005, after exiting a Sikh temple in a nearby village, Mr. Kumar was
again detained by the police and questioned about his involvement with
separatists. He says that he was again assaulted and tortured, this time over
a period of seven days. After his father again obtained his release, Mr. Kumar
fled to New
Delhi,
approximately an 8-9 hour drive from his village. He states that his father
joined him there after 2-3 days.
[7]
Mr.
Kumar alleges that the Punjab police followed him to New Delhi and that they
came looking for him with New Delhi police at his sister’s house where he was
staying. Mr. Kumar states that he was out at the market with his sister when
they arrived, and that his father, who was at the house, lied about his
whereabouts. Mr. Kumar states that his father was beaten and that the police
threatened to kill Mr. Kumar if they found him.
[8]
Through
the assistance of an agent, Mr. Kumar obtained a false Canadian passport and
departed India on June 7,
2005. On June 15, 2005 he claimed refugee status. His expressed fear was that
the Punjab police would
continue to assume he supported the separatists and that he would be persecuted
on the basis of this imputed political opinion.
[9]
On
February 12, 2009, almost two years after his hearing, the Board, differently
constituted, rendered a negative decision. The Board drew a negative
credibility inference based on an apparent inconsistency between the
applicant’s PIF and his testimony. The applicant in his Personal Information
Form (PIF) stated: “While I was in my sister’s place, Punjabi police came at my
place. My father lied and said ‘Dharminder Kumar is not living here’” [emphasis
added]. The Board reasoned that the use of the word “my” suggested that the
police came to the applicant’s house in Punjab state, and not to his sister’s
house in New
Delhi.
The Board disbelieved the applicant’s explanation that his father had joined
them in New
Delhi.
The Board also found it suspect that the applicant would be out at the market
with his sister when he was apparently in hiding. The Board determined “that
the claimant was not telling the truth about the police visit, and that the
claimant’s
father did not join him in New Delhi, and that
the police did not come to the claimant’s sister’s house.”
[10]
The
Board also found it implausible that a group of Punjab police would drive some eight
hours to follow an individual that “was merely suspected of supporting the
separatist faction.” The Board noted that “there is no established integrated
communication system within the police system in India” that would
facilitate the joint efforts of the Punjab and New Delhi police.
[11]
The
Board determined that the applicant had “virtually no political profile in
India” and that this lack of profile, combined with the non-existence of any
warrant for his arrest, supported the conclusion that he would not attract the
attention of authorities if returned to India.
[12]
Finally,
the Board determined that an IFA was available to the applicant. The Board
reasoned that the lack of “a central registry system that would enable the
police to find a person” throughout India, the applicant’s “low
political profile,” the legal freedom of movement for Sikhs, and the
applicant’s ability to work, all made relocation reasonable. The Board
concluded “that there is not more than a mere possibility that the police would
search for him throughout the country, if he were to return.” The Board cited
the example of the applicant’s stay in New Delhi, stating: “I
have found that they did not seek him out there, even if they went to his home
in Kular.”
ISSUES
[13]
The
applicant raised a number of issues:
1. Whether the Board’s
credibility and plausibility findings were unreasonable and reached in
violation of procedural fairness;
2. Whether the Board erred
by failing to consider the objective basis of the applicant’s claim despite its
credibility findings;
3. Whether the Board erred
by failing to provide a separate section 97 analysis;
4. Whether the Board’s
conclusion regarding the applicant’s political profile was unreasonable; and
5. Whether the Board’s IFA
determination was reasonable.
ANALYSIS
[14]
In
my view, it is unnecessary to consider each of the five issues identified by
the applicant because it is clear to me that the applicant succeeds on the
first issue.
[15]
I
find that the Board’s decision that it was implausible that Mr. Kumar would be
followed and persecuted in New Delhi was unreasonable. This
is not to suggest that the Board may not be correct. He may have lied about
the police following him to New Delhi; however, based on the
facts as found by the Board, that finding was unreasonable for the following
reasons.
[16]
The
Board made no findings with respect to the applicant’s allegations that he had
twice been arrested, detained, beaten, and tortured in his home state because
of his apparent association with separatists. It is trite law that “when an
applicant swears to the truth of certain allegations, this creates a
presumption that those allegations are true unless there be reason to doubt
their
truthfulness:” Maldonado v. Canada (Minister of
Employment and Immigration), [1980] 2 F.C. 302 at 305 (C.A.). The
silence of the Board on the first two allegations of abuse by the police must
be seen as acceptance of this aspect of the applicant’s testimony.
[17]
Having
accepted this outrageous conduct in Punjab state by the police, one must ask on
what basis the Board reached the conclusion that it was implausible that they
would have followed the applicant to New Delhi. The Board states that it
rested its finding on the fact that the applicant “was merely suspected of
supporting the separatist faction.” In fact there was much more evidence that
the Board appeared not to consider. Specifically, there were the two previous
instances of what the applicant asserts was “torture” at the hands of the
police over many days.
[18]
The
respondent correctly submits that plausibility findings must be made taking
into consideration what would be viewed by an objective third-party “as
reasonable in that place and in those conditions”: Gonzalez v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 805 (T.D.) (QL) at para. 27.
Given the Board’s acceptance of the applicant’s testimony regarding police
persecution in his home state, it is unfathomable to me how the Board could
reach its plausibility finding with respect to the allegation of police
persecution in New Delhi without referring to the previous instances of
persecution.
[19]
That
the applicant was detained and tortured on two occasions because of his imputed
association with separatists are serious allegations and gross human rights
violations. Such
treatment suggests that regardless of the
applicant’s profile and police suspicions, he was of significant interest to
the local authorities.
[20]
It
is not this Court’s role to pronounce on what a reasonable person armed with
knowledge of the applicant’s treatment by police in Punjab state would or would
not think plausible in terms of the police following him to New Delhi. However,
the Board’s plausibility conclusion must be reasonable; the Board’s failure to
situate the allegations of persecution in New Delhi within the context of
accepted prior instances of arrest and torture makes its decision
insufficiently justified and therefore unreasonable. The Board has failed to
explain why the applicant’s low political profile would subject him to arrest
and torture in his home state, but not to similar treatment in a neighbouring
state only eight hours away.
[21]
In
addition to the Board’s finding of implausibility with respect to the police
following the applicant to New Delhi, it also doubted the
applicant’s story to that effect; however, that finding is also, in my view,
not without question.
[22]
The
Board’s focus on the word “my” in the applicant’s PIF does appear to be a
microscopic analysis. An assessment of credibility on the basis of a single
word by a Member who did not hear the evidence or question the applicant must
be viewed with some suspicion. Further, the Board’s focus on the applicant’s
submission that the he was “in hiding” but yet out with his sister when the
police arrived might be characterized as either an inconsistency finding or an
implausibility finding. If it is an implausibility finding then the Board was
not obligated to put it to the applicant: Appau v.
Canada (Minister of
Employment and Immigration) (1995), 91 F.T.R. 225 at 228-229. However, if
it is a finding of inconsistency then the Board was obligated to put it to the
applicant for a response: Danquah v. Canada (Secretary
of State),
[1994] F.C.J. No. 1704 at para. 6 (T.D.) (QL). The Board viewed it as an
inconsistency rather than implausibility as is evident from its statement in
the decision: “This is another inconsistency”. The Board was therefore
obligated to put its concern to the applicant and it was a breach of procedural
fairness in not doing so.
[23]
Accordingly,
the basis for the Board’s decision with respect to the events in New Delhi cannot
stand. For this reason the decision must be set aside and the applicant’s
claim must be reconsidered by a different Board Member.
[24]
Neither
party proposed a question for certification and in my view there is none.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This application for judicial review is allowed and the applicant’s
application is remitted back to a hearing by a Board Member who has not
previously heard the application; and
2. No
question is certified.
"Russel W. Zinn"
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