Date: 19980810
Docket: IMM-5366-97
BETWEEN:
PRITAM SINGH BAINS,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to an application seeking 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 because it did not find the claimant's evidence on the material facts in this claim to be either credible or trustworthy. The provisions of the United Nations Convention Relating to the Status of Refugees (the "Convention") are incorporated into Canadian law by subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-5.
[2] The Board began the reasons for its decision with the statement that "there were significant discrepancies between his [the applicant's] PIF and his oral testimony as well as implausibilities within his oral testimony." In reaching its conclusion, the Board reiterated this finding, stating that there were "significant discrepancies between the claimant's oral testimony and his PIF" and there were "implausibilities within his oral testimony".
[3] I could not identify, and counsel for the respondent could not refer me to a single discrepancy between the applicant's oral testimony and his PIF. Also, interestingly, the Refugee Claim Officer (RCO), when making her observations at the end of the hearing, commented: "[r]egarding credibility I have not noted any inconsistencies in his evidence."
[4] The implausibilities on which the Board based its decision were: (1) the applicant did not mention in his PIF the ten incidents of harassment and three detentions by Punjab police between February 1992 and December 1996 to which he referred in his oral evidence; (2) violence decreased in the Punjab after 1993 and, therefore, it was not reasonable for the applicant to have considered abuse by the police in the Punjab, after that date, as routine; (3) for the same reason, the applicant's evidence that he faced harassment but his teenaged son did not was not reasonable; (4) the applicant's evidence was not credible because his father had not been questioned or arrested for the sheltering of the militant while the applicant had; (5) the applicant's evidence that he had been tortured by the police to extract information concerning the identity and the hideouts of militants was not credible because the police had others in custody from whom they could seek such information, and the applicant had been co-operative with the police; (6) the applicant's PIF was amended at the hearing to state that the police arrested his father after he fled the country and it was not reasonable that the police would arrest only his father and not the applicant's two sons as well; (7) his evidence that he had sent a copy of his refugee claim home to India so that it could be shown to the Punjab police to prove he was not in the country was not credible because he had not taken the more expedient step of going to the Indian consulate in Toronto and informing them of his whereabouts.
[5] On examination, all of these implausibility findings are either based on speculation or lack an evidentiary foundation. With respect to the first, the applicant's failure to mention the incidents of harassment and detention in his PIF, claimants are instructed to recount only the significant incidents of their claim in that document. The applicant's claim was based on events that occurred in 1992 surrounding the election of that year in the Punjab and on events of 1996 surrounding his sheltering of an injured militant. He was asked directly at the hearing why he had not included a reference to harassments from 1992-1996 in his PIF, which harassments he had referred to in response to questions orally. He answered "I thought these are very ordinary problems and I wrote the major problems in the story." There is nothing unreasonable about that explanation. There is no evidentiary basis for the conclusion that it was unreasonable for him to have left them out of his PIF. These were not and he never sought to make them a focus of his claim. In addition, he does refer in his PIF to having "encountered numerous difficulties" as a member of the Jat community because of the demand for an independent Sikh homeland. Also, he refers in that document to the "general harassment of the police" and the "high handedness of the Punjab police."
[6] With respect to the finding that violence decreased and that it was unreasonable that the applicant should have faced harassment but not his sons, while there was documentary evidence that violence decreased, I was not referred to any evidence that stated that harassment and abuse by the police decreased. Also, I was referred to no evidence to support the conclusion that it was unreasonable for the applicant to have suffered harassment but his sons to have escaped such treatment. One son, at the time, would have been in his late teens; the other was younger. If the police only suspected the applicant of involvement with the militants, it would be reasonable for them to harass only him. The inference is based on speculation.
[7] With respect to the conclusion that the applicant's evidence was not credible because his father had not been questioned and arrested at the same time as the applicant, the applicant gave a completely logical explanation as to why this had happened: he had told the police that he had been responsible for bringing the injured militant into the home; the militant had only been there for a very brief period of time; there is no evidence that the father had had any opportunity to have any extensive involvement with the incident. The Board appears to have simply ignored this explanation.
[8] The finding that the applicant's evidence was not credible because he had been co-operative with the police and there were other detainees from whom information could be sought is completely unreasonable. One can, on the facts given, reach the opposite conclusion: he had been co-operative with the police in identifying two militants and therefore he must know the identity and hideouts of others; the other detainees were not disclosing any information and therefore it would be more useful to torture him rather than them. Both versions are speculation. Such speculation is insufficient as the basis for a finding that the applicant's evidence concerning his treatment at the hands of the police was not plausible or reasonable.
[9] With respect to the fifth finding of unreasonableness or implausibility, that is, that the applicant's PIF was amended to refer to the father's arrest and that it was unreasonable for the police to have arrested the father but not the applicant's sons, the applicant's PIF was not amended in the way the Board indicates in its reasons. It was amended to state that the applicant had only learned of his father's arrest after he arrived in Canada. The PIF always contained the assertion that his father had been arrested after the applicant left the country. Also, I was referred to no evidence that would support an inference that it was unreasonable for the police to have arrested the father but not the applicant's sons. I note that at the time of the 1996 incident, the older son was not in the house when his father allegedly brought the injured militant home, he was outside on the farm. The younger son while at home would have been 13-14 years old. Counsel for the applicant argues that in the absence of evidence showing that it is common practice for the Punjab police to arrest all the male members of a household in these situations, the inference is without factual foundation.
[10] Lastly, the conclusion that the applicant's evidence was not credible because he had not taken the more expedient step of informing the Indian Consulate in Toronto of his whereabouts, rather than sending information home to his family in the Punjab to convince the police he was no longer in the country, does not have an evidentiary base. Can one assume that informing the Consulate would be more effective than informing the Punjab police directly? Can one assume that, from the applicant's point of view, it would be easier to go to the Consulate with the information rather than mailing a letter to his family in the Punjab? There is no evidentiary basis to support a conclusion that his evidence that he sent the documentation home was unreasonable or implausible because he had not gone instead to the Consulate.
[11] In Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 at 305 (F.C.A), it was made clear that the Board must have valid reasons for finding that an applicant lacks credibility. The decisions in Attakora v. Canada (Minister of Employment and Immigration), (1989) 99 N.R. 168 (F.C.A.), and Owusu - Ansah v. Canada (Minister of Employment and Immigration), [1990] 8 Imm. L.R. (2d) 106 (F.C.A.), are both cases in which decisions were set aside because the inferences drawn by the Board were based on implausibility findings that were not inherently such. In Frimpong v. Canada (Minister of Employment and Immigration), [1990] 8 Imm. L.R. (2d) 106 (F.C.A.), a decision of the Board was set aside because it was based on inferences that were unsupported by the evidence. More recently in Arunthavarajah v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 956 (F.C.T.D.), reference is made to Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.), and the statement therein that a decision based on implausibilities may be less immune from review than one in which credibility is questioned as a result of demeanour or evasiveness or conflicting evidence. This is because a reviewing court, depending upon the nature of the alleged implausibilities, may be in as good a position as the Board to assess the validity of the alleged implausibilities.
[12] Applying this jurisprudence, I am convinced that the decision under review must be set aside. It is based, first of all, on a conclusion that there were discrepancies between the applicant's oral testimony and his PIF, when none can be found. It was based, secondly, on a number of conclusions that the claimant's evidence was unreasonable or implausible, which conclusions are in large part based on inferences founded on speculation or for which have no evidentiary basis could be identified.
[13] An order will issue in accordance with these reasons.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
10 August 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5366-97
| STYLE OF CAUSE: PRITAM SINGH BAINS |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, AUGUST 5, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: AUGUST 10, 1998
APPEARANCES:
Ms. Barbara Jackman
For the Applicant
Mr. Brian Frimeth
For the Respondent
SOLICITORS OF RECORD:
| Jackman & Waldman |
| Barristers & Solicitors |
| 281 Eglington Avenue East |
| Toronto, Ontario |
| M4P 1L3 |
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent