Date: 20070323
Docket: IMM-4620-06
Citation:
2007 FC 309
Ottawa, Ontario, March 23, 2007
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
KULWANT SINGH
SHADHRA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of the decision of
Michael Crelinsten, of the Refugee Protection Division (the panel), dated July 26,
2006. The panel determined that the applicant was not a “Convention refugee” or
a “person in need of protection”, since he had an internal flight alternative
(IFA) in India.
ISSUE
[2]
Is
the panel’s decision patently unreasonable?
[3]
The
answer to this question is affirmative. As a result, the application for
judicial review will be allowed.
FACTUAL BACKGROUND
[4]
Born
in India on June 12, 1976, the applicant is a Sikh from the state of Uttar
Pradesh. He arrived in Toronto on January 23, 2005, and claimed refugee
status the same day.
[5]
The
applicant alleges he was arrested and tortured by police in India on two different
occasions. According to the applicant, the first time, on August 12, 2003,
he was interrogated and tortured and released four days later after a bribe was
paid. The police took his fingerprints and photograph and forced him to sign
blank pages. Following these incidents, the applicant had to seek medical
attention for his injuries. He unsuccessfully attempted to leave India with the
help of a smuggler.
[6]
On
May 29, 2004, the police went to the applicant’s home looking for his eldest
brother. The applicant was arrested again, interrogated and beaten. He was
released on June 7, 2004, after a bribe was paid. He was again
hospitalized and treated.
[7]
After
he was released, he was required to report to the police every month. Fearing
the worst, he chose not to comply with this condition. He decided to flee the
family home and find refuge in Sikh temples. He lived this way for seven
months, until he left for Canada in January 2005.
[8]
The
applicant alleges that his father was arrested and tortured on April 16,
2005, after the latter allegedly complained to the police superintendent
concerning the harassment he and his sons were supposedly subjected to. The
police purportedly went to his parents’ home at least once a month to try to
find him and his eldest brother.
[9]
The
applicant submitted a letter from Jeevan Jyoti Health Center & Hospital
(P-6), where he was treated twice for injuries inflicted by the police. The
letter reports the treatment given immediately following the incidents of torture.
The doctor wrote:
Both times, he was treated as an indoor
patient for a day and was further treated at home. The patient was suffering
from same types of swellings, pain, contusions and brulses (sic) spread
all over his body. The patient alleged this problem due to beating in police
custody.
[10]
The
applicant also submitted a letter from Dr. Vincenzo Colavincenzo (P-17),
of the Clinique de médecine familiale de Lasalle, in Quebec, where he has been
treated since April 2005 for the following problems:
I met this gentleman seven times since
the month of April 2005 and he reported physical and psychological problems
that were allegedly connected to the experiences of fear and violence while
living in India. He stated that he was a victim of police harassment, false
accusations and physical assaults that traumatized him and that were
responsible for leaving his country. . . .
[11]
The
applicant’s file also includes an affidavit from Gurmeet Singh, Sarpanch of Kajri
Niranjanpur, Tehsil Puranpur, Uttar Pradesh, India, the applicant’s village
(P-3). The Sarpanch’s letter, dated July 20, 2005, indicates:
1.
. . . Kulwant
Singh Shadhra son of Sh. Ajmer Singh Shadhra and his family are residents of my
village. I am well known to their problems due to the police.
2.
That the
police illegally arrested and tortured Ajmer Singh’s other son Manjit Singh
because militants took help from them. Police tortured him and linked him with
militants.
3.
That
police again arrested and tortured Manjit Singh. He left home and went in
hiding. According to his family his whereabouts are not known.
4.
That the
police illegally arrested Kulwant Singh two times to find his brother and
others. Police tortured him badly.
5.
That Kulwant
Singh also left home and started to live in hiding to save his skin.
6.
That the
village council and I helped this family all times and this family paid bribe
to the police.
7.
That
Kulwant Singh left his country because of the fear of Police arrests and tortures.
Police also arrested Ajmer Singh because he complained against police and
also approached prass (sic) to get help.
8.
That the
life of Kulwant Singh is not very safe in India and therefore he cannot be
advised to come back. Police still comes and harassed Ajmer Singh and family. .
. .
[Emphasis added]
[12]
The
panel made a negative decision on July 26, 2006. This is the decision
being challenged here.
IMPUGNED DECISION
[13]
After
considering all the evidence and applicant’s testimony, the panel determined
that the applicant was not a Convention refugee or a person in need of
protection, since his return to India would not subject him to a reasonable
fear of persecution, to a risk to his life or a risk of cruel and unusual
treatment. The panel based this determination on the fact that the applicant
has an internal flight alternative.
ANALYSIS
Standard of review
[14]
The
standard of review applicable to pure questions of fact is patent
unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 732 (F.C.A.) (QL)).
[15]
Although
it considered his story to be slightly exaggerated, the panel did not doubt
that the applicant had been arrested, detained and mistreated by the police.
However, the panel was not convinced that the applicant was specifically
targeted by the police.
[16]
The
panel concluded that the applicant had not provided reasonable explanations for
a major omission in his Personal Information Form (PIF). In fact, the panel placed
a lot of emphasis on the fact that the applicant did not amend his PIF to
indicate that his father had been arrested and tortured in April 2005. It
should be noted that the PIF is dated February 2005, about two months
before his father was arrested.
[17]
The
panel thus came to a negative conclusion, determining that the applicant had
not established on a balance of probabilities that the police had arrested and
tortured his father. According to the decision, this omission significantly
undermined the applicant’s credibility.
[18]
In
coming to this conclusion, the panel stated as follows with respect to the
Sarpanch’s affidavit (page 4):
[T]he significance of this omission is
reinforced by the omission of any reference, in exhibit P-4, an affidavit
submitted by the sarpanch of the claimant's village, to the father's arrest.
The panel notes that the affidavit was signed by the sarpanch on July 26, 2005
or well after the alleged arrest and torture of the claimant's father. He
states that, "I am well known to their problems due to the police (sic)"
but, nevertheless, makes no reference to the alleged arrest and torture of the
claimant's father, which would have, allegedly, taken place merely two months
previously. The panel concludes that this omission further detracts from the
credibility of the claimant's allegations of police interest, on a forward looking
basis, in either him or his father.
[19]
However,
in paragraph 7 of the Sarpanch’s affidavit, he clearly states that the
police arrested the applicant’s father because he had made a complaint and had
informed the press. The unchallenged newspaper article (P-5), on page 188
of the panel’s file, corroborates the applicant’s statements and the Sarpanch’s
affidavit.
[20]
The
Court is of the opinion that this is a patently unreasonable error, as the
panel’s conclusion is not remotely corroborated by the evidence.
[21]
In
the case at bar, at the hearing, and even before the applicant testified about
the events surrounding his father’s arrest in April 2005, the applicant’s
representative asked for the panel’s permission to make a correction precisely
to add this important piece of evidence to the claim. Referring to the
stenographic notes, one can see that a discussion ensued and that this element
is the root of the panel’s negative decision.
[22]
The
intervention of this Court is necessary.
[23]
The parties have not submitted any questions of general
importance for certification and this case does not involve any.
JUDGMENT
THE COURT
RULES that the application for judicial review be allowed. The matter
is remitted for reconsideration before a differently constituted panel. No
question of general importance is certified.
“Michel Beaudry”
Certified
true translation
Jason
Oettel
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