Date: 19990525
Docket: IMM-2908-98
BETWEEN:
DAVINDER SINGH BAGRI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The applicant challenges by way of judicial review the decision of the Immigration and Refugee Board (Refugee Division) (the "CRDD"), dated 22 May 1998, in which the CRDD determined that the applicant is not a Convention refugee within the meaning of s.2(1) of the Immigration Act .
Background
[2] The applicant, Davinder Singh Bagri, is a 38 year old citizen of India. His claim for Convention refugee status is based on his fear of persecution on the grounds of membership in a particular social group, in this case family members of Sikhs persecuted because of their involvement in the Separatist Movement. The applicant fears persecution for himself and his family at the hands of the Punjab police.
[3] In support of his claim, the applicant"s Personal Information Form provides the following detailed account:
| " On 3 June 1984, the Indian army attacked the Golden Temple, the holiest place of worship for Sikhs. Due to this, Davinder"s brother Nirmal and many other Sikhs who were members of the Indian army began to travel to the Golden Temple in order to defend it. Nirmal was arrested, tortured and imprisoned by the army and was subsequently released only in 1990. After his release, Nirmal became very politically active in the Akali Dal Group following which Nirmal and Davinder experienced harassment by the police on a number of occasions. |
| " In February of 1992, after accompanying Nirmal to a meeting urging Sikhs to boycott the upcoming provincial election, both Davinder and Nirmal were arrested and beaten by the Punjab police. This was followed by continued police harassment. |
| " On 4 June 1994, Davinder and Nirmal were returning from a meeting on the 10th anniversary of the attack on the Golden Temple when they were arrested, detained and beaten by the police. Davinder was released only upon the payment of a bribe by his village council and the police denied having ever arrested Nirmal. The assumption was that he had been killed while in police custody. |
| " Despite police threats not to report Nirmal"s disappearance to anyone, in January of 1995, Davinder decided to report the matter to a human rights group. Before he could do so, however, the police raided the family home, arrested everyone and made further threats against Davinder"s life. Shortly afterwards, the police again raided their house, assaulted his sister-in-law in the absence of other family members, ransacked the home and made further death threats against Davinder. |
| " The next day, Davinder Bagri fled to a neighbouring province with his wife and family where he hid for approximately two years. On 2 January 1997, however, after returning home, Davinder Singh was told that the Rajisthan and Punjab police had raided the home looking for him and arrested his wife and children and taken them to Punjab. He was advised by his relatives that he should flee the country to preserve his life. |
| " Shortly thereafter, he left for Delhi where he met his mother and brother-in-law. Davinder"s brother-in-law told him that the police had brutally beaten his wife and sexually assaulted her and that due to this abuse, she was suffering from mental illness. Davinder"s brother-in-law warned him to leave the country soon, or that he would be killed by the police. |
| " Davinder then secured false papers and travelled to Canada where he claimed refugee status. |
| " In support of his claim, the applicant submitted records of his brother"s imprisonment as well as medical reports of injuries suffered by both himself and his wife. |
The CRDD"s Finding Respecting Credibility and the Fabrication of Evidence
[4] In its reasons, the CRDD accepted that the claimant had suffered harm amounting to persecution in 1992 and 1994 because of his membership in a particular social group (family) due to his brother"s activities.1
[5] Later in its decision, however, the CRDD states that it found the Applicant"s claim to being pursued by the police in 1997 in Rajisthan because of his intention of reporting his brother Nirmal"s disappearance to a human rights agency was implausible, and, therefore, not credible.2
[6] In addition, with regard to the incidents on 2 January 1997, the CRDD concluded that the Applicant:
| ...fabricated the evidence that his family was taken by the police |
| back to Punjab in order to force him to give himself up and that |
| his wife was raped by the police. A medical report states that his |
| wife was "admitted with multiple injuries and in a severe |
| depression". The claimant testified that in their culture, reference |
| to the sexual assault would not be made. Considering all the |
| evidence, the panel finds that there is insufficient evidence to |
| establish, on the balance of probabilities, that the family was |
| arrested, brought back to Punjab and that his wife was sexually |
| assaulted..3 |
[7] In coming to these conclusions, the panel considered and apparently rejected the medical report submitted by Dr. Ramesh Kumar who had treated Jagdish Kaur, Davinder"s wife, from 7 January 1997 to 22 January 1997, immediately after the alleged assaults. The report stated that Jagdish was "admitted with multiple injuries and in a severe depression" and that she was treated for anxiety depression as a result.
Reviewable Error
[8] I find that the CRDD"s conclusions respecting credibility and the alleged fabrication of evidence were made in reviewable error.
[9] In Maldonado v. Canada (MEI), [1980] 2 F.C. 302, the Federal Court of Appeal held that when an applicant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there is reason to doubt their truthfulness. The Court held that a Board acts arbitrarily in choosing to disbelieve an applicant"s testimony where there exists no valid reason to doubt the truthfulness of it. Thus, while it is open to the CRDD as the trier of fact to evaluate the evidence and accord weight, any inconsistencies it finds must be supported by the evidence.
[10] In Ahortor v. Canada (MEI) (93-A-237, 14 July 1993), Mr. Justice Teitelbaum held that the CRDD erred in finding an applicant not credible because he was not able to provide documentary evidence corroborating his claims. Thus, while a failure to offer documentation may be a valid finding of fact, it cannot be related to the applicant"s credibility, in the absence of evidence to contradict the allegations.
[11] In the present case, in effect, the CRDD apparently found the medical report submitted by the Applicant to be contradictory of the applicant"s evidence, not for what it said, but for what it did not say. To follow established authority, the medical report must be considered for what it did say. On its face it supports the Applicant"s evidence, and does not contradict it.
[12] Contained in the record before it, the CRDD had information from Dr. Cynthia Mahmood who, according to the Documentation, Information and Research Branch (the "DIRB")of the Immigration and Refugee Board is a well-known specialist of Sikh militancy in the Punjab and who regularly provides the DIRB with information on Sikh militants and militancy. In her information, Dr. Mahmood states that tactics such as custodial rape are commonly used by the Punjab police, that internal flight is impossible for the majority of women due to cultural factors, and that a Sikh woman who has in any way been involved with the police in Punjab would have a well-founded fear of persecution.4 While this statement does not directly address the case at hand, it does provide support to the evidence of the Applicant as to what happened to his wife while she was in the custody of the police.
[13] On its face, all of the evidence in the record before the CRDD supports the Claimant"s testimony as to what occurred on 2 January 1997 as told to him by his brother-in-law. In my opinion, it was not open to the CRDD to disregard this evidence without giving the clearest of reasons, which were not provided.
[14] Therefore, pursuant to s. 18.1 (4) (d) of the Federal Court Act, I find that the decision of the CRDD was made without regard for the material before it.
[15] Accordingly, the CRDD"s decision is set aside and the matter is referred back for redetermination before a differently constituted panel.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
May 25, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2908-98
STYLE OF CAUSE: DAVINDER SINGH BAGRI v. MCI
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: May 21, 1999
REASONS FOR ORDER AND ORDER OF CAMPBELL, J.
DATED: MAY 25, 1999
APPEARANCES:
Ms. Rishma Sharif for the Applicant
Mr. B. Hardstaff for the Respondent
SOLICITORS OF RECORD:
Major Caron for the Applicant
Calgary, Alberta
George W. Thomson
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent
__________________4 Cynthia Mahmood, Information on the Current Situation in Punjab, DIRB, 21 May 1997, pp. 158-59 of the record.