Date: 20040630
Docket: IMM-1942-03
Citation: 2004 FC 921
BETWEEN:
DEV SINGH GILL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated March 10, 2003, wherein the Board found that the applicant is not a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Dev Singh Gill (the applicant) is a Jat Sikh male and a citizen of India who alleges a well-founded fear of persecution because of political opinions that are imputed to him. The applicant also claims to be a person in need of protection.
[3] The Board found that the applicant was not a Convention refugee or a "person in need of protection" because it found that his claim was not credible.
[4] Upon reviewing the evidence, I find that the Board drew many inferences on the basis of an erroneous interpretation of the evidence.
[5] First, the Board found that the applicant was not credible because he had omitted to include certain details in his Personal Information Form (PIF) narrative. Specifically, the Board notes that the applicant testified that the police asked him to raise his hands over his head during the October 1999 incident and that they searched his taxi. However, a careful reading of the hearing transcripts reveals that the applicant never said that his taxi was searched by the police. The hearing transcripts (at page 294 of the Tribunal record) indicate the following:
By Refugee Protection Officer (to claimant)
Q. Can you tell us what happened in October 1999?
A. [...] They knocked on the door, my door, and they opened the door. First thing they said, "Raise your hands on your head", then they asked my name, is my name Dev Singh? . . .
After that, they (inaudible), they asked me what work I do. I told them I drive a taxi and also doing farming work. [...] They told me, "Where is your taxi which you drive around?" There is a separate room, I told them, "It's parked there".
They searched the entire house, they made sure where is the taxi and the papers, documents. During this period, the police harassed me, . . .
[6] According to this segment of the transcripts, the applicant did not testify that the taxi was searched by the police, but the Board drew this inference on its own. Consequently, even though it is true that the applicant did not mention in his PIF that the police asked him to raise his hands on his head, the Board's credibility finding was partly based on an erroneous inference drawn from the applicant's testimony.
[7] Second, the Board found that when testifying about his treatment during his detention of October 1999, the applicant failed to mention that a heavy roller was rolled over his thighs until he was prodded. A review of the hearing transcripts reveals that in answer to the Refugee Protection Officer's (RPO) questions regarding the torture he suffered during the October 1999 detention, the applicant described in a very fast manner the torture he suffered. As he was describing the treatment he endured, the following exchange took place (page 302 of the Tribunal record):
By claimant
With the rope they pulled me upside down. They continued to torture on me. I kept telling them, "It's not my fault". They didn't stop. They'd stop for five minutes and then again. I had so much pain after some time, I couldn't even feel it.
By RPO (to claimant)
Q. You've written that they used a heavy roller; what do you mean by that?
A. First, they hung me upside down and beat me up. The next day, they put my legs together and let me lie on the ground for (inaudible), the two thumbs in the toes, they had tied with a rope, with a cord, and tied my hands in the back. I am telling you, they were hefty, strong men, policemen, big men. He put his legs through and put it on my bottom and he made me stay up like this.
Then you were talking about the wooden roller, he put it on my thigh...
By interpreter
He is pointing to his thigh.
By claimant
They make a man stand up and they toll this back and forth. One person on the side was helping to move that back and forth.
By RPO (to claimant)
Q. What is a roller? What does it look like?
A. It's wooden and it's round.
Q. How big is it?
A. It is this long and this thick.
[8] In light of the above testimony, I do not find that the Board could reasonably draw the inference that the applicant lacked spontaneity. The applicant is describing the treatment he allegedly suffered while he was in India; he is describing in detail the incidents that led him to seek refugee protection in Canada. As he is recounting the incidents, in an excited manner, the RPO merely asks him to tell a bit more about the roller he had described in his PIF narrative. Although the applicant got taken up in describing these events, the hearing transcripts in no way suggest that he had to be prodded to talk about the roller. Consequently, I find that the Board unreasonably concluded that the applicant was not credible because he lacked spontaneity.
[9] Third, the Board found that the affidavit from the Sarpanch lacked certain details. Specifically, the Board refers to the applicant's PIF and testimony where he indicated that an arrest warrant was possibly outstanding against him and that as a condition for his release in November 2001, he was not to leave the area without police permission. The Board attributed no probative evidence to the Sarpanch's affidavit because no mention is made of the arrest warrant or of the release condition. The Board's conclusion regarding these omissions in the Sarpanch's affidavit are unfounded. The hearing transcript, at page 333 of the Tribunal record, reveals the following:
By Presiding Member (to claimant)
Q. You said if you go back to India, the Punjab police is still looking for you. Is there any warrant outstanding against you?
A. It's possible they may have released after that. They did not take me to the court, they kept me in illegal detention.
Q. If there was a warrant outstanding against you, don't you think your sarpanch would mention it?
A. I can't say anything about. I don't know about it, I can't tell you.
[10] The applicant never stated that there was an arrest warrant against him but in response to the Board's question, he answered that there might be one, he didn't know. It is unreasonable for the Board to conclude from this that the applicant testified that there is an arrest warrant against him and that the Sarpanch should have mentioned this fact in his affidavit. Furthermore, the fact that the applicant was released from detention in November 2001 on the condition that he not leave the area without police permission is a peripheral detail that does not overcome the Board's error with respect to the arrest warrant. Consequently, I find that the Board's conclusion with respect to the Sarpanch's affidavit is completely unreasonable.
[11] Fourth, the Board found that the medical letter does not corroborate the applicant's testimony because it does not mention that he was injured on his right arm and lower legs during his October 1999 detention. The applicant indicated during his testimony that he was hospitalized for swelling and pain in his arm, on his back, on the soles of his feet, his lower legs and his knees. According to the medical letter, the applicant "was treated for multiple injuries of soft tissues, bruises and abrasions on the back and thighs, stiffness of joints, tender soles, inflammation of genitals" (page 49 of the Tribunal record). I find that the Board drew an unreasonable inference from the applicant's testimony and identified an unfounded inconsistency between the applicant's statements and the doctor's letter. The medical letter is ambiguous and the phrases "multiple injuries of the soft tissues" and "stiffness of joints" may be interpreted to include the alleged injuries to the applicant's arm and thighs. Consequently, I find that the Board unreasonably drew an adverse inference regarding the applicant's credibility from a microscopic and erroneous interpretation of the evidence.
[12] Although the Board refers to the documentary evidence in order to discredit the applicant's allegations that he is targeted by police for being an alleged member of the Jammu and Kashmir terrorist movements, it does not provide this evidence in the file. Furthermore, despite the fact that the evidence suggests that the militant movement in India was at its height during the 1980s and early 1990s and that since 1995 or 1996 life in Punjab has returned to normal, this does not directly call into question the applicant's allegations. The applicant explained that despite this change in situation, his problems stem from the Jammu and Kashmir terrorist movements and his being victimized by the police.
[13] For all the above reasons, I am of the opinion that, in spite of the respondent's counsel's able presentation, the Board made its decision on the basis of too many inferences that were drawn from a microscopic, overzealous and erroneous interpretation of the evidence. The application for judicial review is therefore granted and the matter, sent back for reconsideration by a differently constituted panel of the Board.
JUDGE
OTTAWA, ONTARIO
June 30, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1942-03
STYLE OF CAUSE: DEV SINGH GILL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 8, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: June 30, 2004
APPEARANCES:
Mr. Ethan Friedman FOR THE APPLICANT
Mr. Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ethan Friedman FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario