Date: 19980311
Docket: IMM-2316-97
BETWEEN:
PARDEEP SINGH GOSAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to an application by the applicant for an order setting aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"). That decision found the applicant not to be a Convention refugee.
[2] I have been persuaded that the decision must be set aside. The reasons given for the decision contain a significant number of errors and unsupported findings of implausibility. Taken cumulatively, they lead a reviewing Court to conclude that the Board made its decision without regard to the material before it.
[3] The applicant's evidence of persecution in the Punjab can be described by reference to five events: an arrest in June 1993; an arrest in January 1994; an arrest in June 1994; an arrest in November 1994; the murder of a neighbour in April 1995. This last event led the applicant to flee. There was also evidence concerning letters to and from his wife, and concerning medical certificates relating to injuries he suffered while in detention, both of which the Board appears to have misconstrued.
[4] The Board's decision hinges on its finding that the applicant lacked credibility. The finding of lack of credibility starts with the Board's assessment of the evidence concerning the arrest of June 1993. The Board stated that it did not believe the applicant's evidence with respect to that event because he had stated in his PIF that he had been incarcerated for one day (i.e. overnight) while in his oral evidence he had testified that he did not know how long he had been detained, but it was at least several days. The transcript reveals that his oral evidence was that he had been detained overnight.
[5] The Board found his evidence about the January 1994 arrest to lack credibility because: (1) his evidence concerning the June 1993 incident had lacked credibility; (2) it was implausible that the police would have released him on condition that he become an informer when he had refused to act in that capacity; (3) it was implausible that he would have told the police that militants had been at his home.
[6] The first reason given is not supportable because it is based on the earlier unsupportable finding. The second reason is also not an accurate recounting of the evidence. The evidence does not support a finding that the applicant was released "on condition that he become an informer". The transcript records the applicant as stating that he had been repeatedly asked by the police to be an informer and he consistently refused. He was released, according to his evidence, on payment of a bribe. Also, the conclusion that it was implausible that he would have revealed to the police that militants had come to his home is, at least, a highly debatable conclusion. The applicant's evidence was that the police came to his house with the knowledge that "outsiders" had been there; informers had passed this information to the police. In those circumstances it would be just as plausible to conclude that the applicant would have disclosed the requested information to the police, as that he would not.
[7] The Board disbelieved the applicant's evidence concerning the June 1994 arrest because: (1) it had disbelieved his evidence about the earlier incidents; and (2) it was implausible that he would be arrested to identify suspected militants who were in detention, when he was not a political activist at the time, and because he was under close police surveillance.
[8] The first reason is not sustainable. It depends on earlier findings that are not sustainable. The second reason, again, is a somewhat debatable implausibility finding. The applicant's evidence had been that he was arrested in June 1994 because it was close to Blue Star, the anniversary of the attack on the Golden Temple that had taken place on June 6, 1984. He explained that the police were picking up many Sikhs in anticipation of celebrations related to the anniversary. As counsel for the applicant argued, the reason the applicant was picked up was logically for the same reason that he was under police surveillance. To conclude that he would not have been arrested because he was under close police surveillance seems to be based on dubious reasoning.
[9] With respect to the arrest of November 1994 and the murder of April 1995, the Board in writing its reasons co-mingles the two events. It would appear from the Board's decision that it thought that the applicant had been arrested for the murder of the neighbour and then released. This was not the case. The November 1994 arrest had been the result of an inspection at a roadside check point and because he was carrying militants in his taxi. This was separate and apart from the event in April 1995 that caused him to flee: the murder of his neighbour. The latter he testified was known to have been committed by militants; he was not arrested at that time.
[10] The Board stated that it placed little weight on the evidence that was submitted with respect to the communications with his wife because the applicant had testified that "he does not write letters to his wife as he fears that these will be intercepted by the police". The applicant's evidence was that he did write letters to his wife but eventually stopped doing so because they were being opened before his wife received them.
[11] The Board placed little weight on the medical certificates that the applicant produced because it found the claimant had agreed that they had been signed and issued before he left India, and that three of them seemed to have been written to explain his absence from work, yet the applicant's evidence had been that he was self-employed as a taxi driver. The Board concluded that the applicant "gave no further evidence to explain the dates or text of the certificates".
[12] The applicant did not clearly disagree with the Board's conclusions about the dates on the certificates, or the seeming purpose of the certificates, but his evidence was that he had not seen the certificates before he left India; that all doctors in India have these records in their files and if someone wants to take them, they do so; if the documents are not wanted, they are left in the file. He stated that he had asked his father to obtain the certificates for him, after he came to Canada and he had not seen them before that time. The panel may not have believed the applicant's explanation, but it was not correct to say that he gave no explanation concerning their dates or the text of the certificates.
[13] Counsel for the applicant also made arguments concerning the failure of the Board to refer to a psychiatrist's report that was placed in evidence and to the validity of the Board's IFA finding.
[14] Counsel for the applicant argues that the Board erred because it made no reference to a psychiatrist's report that had been placed in evidence. I am not persuaded that in all instances the Board has to refer to the psychiatrist's report. It will depend on the quality of that evidence and the extent to which it is central to the applicant's claim. 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.
[15] I agree with counsel for the respondent's argument that the IFA finding cannot be faulted because of a failure to identify a specific location or locations in India to which the applicant could relocate. Counsel for the applicant relies upon the decision in Rabbani v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 141. That decision related to Afghanistan and, as Mr. Justice Noël noted, "the documentary evidence indicated that control over the areas referred to by the Board moved back and forth amongst the protagonists". He concluded that "if the area within which an IFA is said to exist is uncertain, it can hardly be viewed as a realistic and reasonably accessible location". The areas in India where large numbers of Sikhs live safely do not have uncertain and shifting boundaries.
[16] In any event, as counsel for the respondent argued, and as noted above, the foundation of the Board's decision, including its decision with respect to an IFA, is based on its finding that the applicant lacked credibility. Since that conclusion cannot stand, the decision under review must be set aside and the applicant's claim referred back for reconsideration.
"B. Reed"
Judge
Toronto, Ontario
March 11, 1998
FEDERAL COURT OF CANADA
Date: 19980311
Docket: IMM-2316-97
BETWEEN:
PARDEEP SINGH GOSAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2316-97
STYLE OF CAUSE: PARDEEP SINGH GOSAL
-and-
| THE MINISTER OF CITIZENSHIP |
| AND IMMIGRATION |
DATE OF HEARING: MARCH 10, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: MARCH 11, 1998
APPEARANCES: Ms. Anne Weir
For the Applicant
Ms. Lori Hendriks
For the Respondent
SOLICITORS OF RECORD: Ms. Anne Weir
Barrister and Solicitor
372 Bay Street
Suite 1610
Toronto, Ontario
M5H 2W9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent