Date: 19990312
Docket: IMM-1572-98
BETWEEN:
BALDEV SINGH SIHOTA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985 c. F-7 [as amended] in which Baldev Singh Sihota ("the applicant") requests the Court to review and set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Refugee Division") dated March 17, 1998 dismissing the applicant"s claim to be recognized as a refugee.
[2] The applicant, a citizen of India, is a Sikh from Punjab who alleges that he was detained and tortured by the Punjab police in late 1995 and early 1996 as a result of visits to his home by two suspected Sikh terrorists. On one occasion they left a bag there, which attracted the attention of the police. The applicant came to Canada in 1996 and claimed refugee status on the ground that he had a well-founded fear of persecution at the hands of the Punjab police by reason of his suspected association with Sikh militants.
[3] The Refugee Division rejected the applicant"s claim primarily on the ground that it did not believe that he had been beaten and tortured as he had alleged, and concluded therefore that he did not have a well-founded fear of persecution. The Refugee Division also found that in any event there was an internal flight alternative in New Delhi available to him.
[4] Counsel focussed their submissions on the Refugee Division"s credibility findings. It is trite law that this Court is very reluctant to set aside decisions of an administrative tribunal that are based upon findings of credibility, whether they are made upon the basis of the demeanour of the witness, or on inconsistencies or implausibilities in the evidence. Nonetheless, if I am satisfied that the credibility findings made in this case were not reasonably open to the Refugee Division on the evidence before it, I may set the decision aside as erroneous in law, or made in a perverse or capricious manner or without regard to the material before it.
[5] The Refugee Division relied on five particular instances where it found the applicant"s evidence to be inconsistent or implausible. It stated that this list was not necessarily exhaustive. However, if I conclude that the particular credibility findings made by the Refugee Division are not sustainable, I am not prepared to comb through the transcript to find other possible instances of inconsistency or implausibility that would justify its conclusion that the applicant was not a credible witness.
[6] First, the Refugee Division relied on inconsistencies between the applicant"s personal information form ("the P.I.F") and his oral testimony about details of the circumstances in which he was taken away unconscious by the police after they had beaten him in front of his family. In the P.I.F. he did not mention that he was removed in a jeep, nor that he was thrown into it unconscious. However, I agree with Mr. Waldman, counsel for the applicant, that this is not an example of inconsistency, but rather the addition of a detail that rounds out the account of the incident from that given in the P.I.F. It cannot be said that the additional details are self-serving or bolster the applicant"s story.
[7] Second, the Refugee Division found implausible the applicant"s evidence that, while in hospital following his beating by the police, the wounds to his head and nose were bandaged, but he was otherwise left in his blood-soaked clothing, covered by a clean sheet. Again, given that the events occurred in a hospital in rural India, the Refugee Division"s finding of implausibility with respect to the hospital treatment strikes me as suspect to the point of unreasonableness.
[8] Third, the Refugee Division rejected as implausible the applicant"s evidence that while the police were beating and torturing him they repeatedly questioned him about a bag that the suspected terrorists had left in his house. The Refugee Division found it implausible that the questions would focus upon this one matter, and not extend to his knowledge of the men who had left the bag in his house. However, as is apparent from the transcript, the applicant also testified that the police asked him about the two men who had visited his home, so that the Refugee Division based this finding of credibility on a misapprehension of the evidence.
[9] Moreover, the applicant"s evidence was that, when he was arrested, one of the suspected militants was already in the jeep and said that the bag was in the applicant"s house. In light of the history of terrorist activities in Punjab, and the fact that one of the alleged militants was known to the police, it does not seem at all surprising that the police would be particularly interested in a bag that might contain weapons or explosives. This credibility finding cannot be sustained on the evidence before the Refugee Division.
[10] Fourth, the Refugee Division also found it implausible that the applicant"s wife and children did not know how to contact a friend of the applicant, a senior police officer stationed in Amritsar, which is 100 kilometres away from the village where they lived, in order to attempt to elicit his assistance when they feared that the applicant had been killed by the police. Again, on the evidence before the Refugee Division this finding was far from being so implausible as to justify a finding of non-credibility.
[11] On the other hand, I agree that it was open to the Refugee Division to find an inconsistency in the applicant"s testimony about the time when his sister knew that he was coming to Canada.
[12] Considering together the four highly questionable findings of implausibility or inconsistency made by the Refugee Division, I have concluded that the non-credibility finding made by the Refugee Division was not reasonably open to it on the evidence before it. It is not enough that the tribunal may have been on firmer ground with respect to another finding of inconsistency, which did not relate to the core of his claim.
[13] For these reasons, this application for judicial review is granted and the matter is remitted for redetermination by the Refugee Division differently constituted.
OTTAWA, ONTARIO John M. Evans
March 12, 1999. J.F.C.C.