IMM-2121-96
B E T W E E N:
DHARAMPAL GOYAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D.J.:
This is an application for Judicial Review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) dated June 7, 1996, wherein it was determined that the applicant was not a Convention refugee.
In the decision the Board made the following findings:
| 1. There were inconsistencies between the applicant's statement in his Personal Information Form (P.I.F.) and his viva voce evidence as to what occurred at the funeral of Balwant Singh. The Board stated1: |
| The claimant's recurring problems with the police putatively started when he spoke at Blawant Singh Hindal's funeral wake. The panel finds the claimant to be inconsistent with what he said and how he said it. According to his written testimony, the claimant spoke passionately against the police, accusing them of killing Balwant. However, in response to questioning by the panel, the claimant stated that only Manjit Singh specifically spoke against the police. When asked to explain the discrepancy between his written and oral testimonies, the claimant stated that he only referred to the government as being unfair in his 10 minute speech. The claimant was given the opportunity to explain the discrepancy but he failed to provide any reasonable explanation. The panel determines that this inconsistency goes straight to the heart of the claimant's claim in that, according to his written testimony, the police clearly considered him to have the same views as the AISSF member because he had spoken against the police at the wake. |
The Board then proceeded to itemize the following implausibilities and inconsistencies between the applicant's P.I.F. and his viva voce evidences:
| 1. The panel found it implausible that the applicant would not make inquiries about the fate of Manjit Singh given his difficulties with the authorities as set forth supra; |
| 2. The panel found it implausible that the applicant's brother was unable to obtain legal representation given "India's long history of democracy and independent judiciary". |
| 3. The panel determined that it was not plausible that there was a continued presence of militants in the Punjab given the documentary evidence before the panel. |
ANALYSIS
In her Memorandum of Argument, counsel for the Respondent frankly concedes that the panel was in error when it found that the applicant's written and oral evidence "was inconsistent regarding what he had stated at the ceremony held in memory of his cousin". From this concession, it necessarily follows that the Board was in error when it reached the following conclusion:
| The panel finds that, given the above inconsistency and implausibility, the claimant was not arrested and tortured by the police in June 1994, nor was he twice visited and interrogated by the police after the funeral, as a result of an alleged speech that he gave at Jindal's wake, as he alleges.2 |
Given this concession by the Respondent, this application for Judicial Review must succeed. The other matters raised by the Board as being implausible are ancillary to the central issue as to whether or not the applicant faces further harassment, detention, and torture by the police upon his return to India, because of the political views expressed by him in his speech at the funeral of his cousin. It necessarily follows, in my view, that even if the Board was incorrect in finding these additional statements to be implausible, that the decision a quo is defective because it was based on a false appreciation of the central issue in the refugee claim.
As the Board stated in its decision, the question of what was said at the funeral and how it was perceived by the police "... goes straight to the heart of the claimant's claim in that, according to this written testimony, the police clearly considered him to have the same views as the AISSF members because he had spoken against the police at the wake."3 Since the Board erred in its consideration of this core issue, I have concluded that such a fundamental error is fatal to the validity of the decision a quo.
For these reasons the application for Judicial Review is allowed, the Board's decision dated June 7th, 1996, is set aside and the matter is remitted to the Board for rehearing and redetermination before a differently constituted panel of the Board.
Neither counsel suggested certification of a serious question of general importance pursuant to section 83 of the Immigration Act. I agree with that view. Accordingly, no question is certified.
"Darrel V. Heald"
D. J.
Toronto, Ontario
April 17, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2121-96
STYLE OF CAUSE: DHARAMPAL GOYAL
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: APRIL 16, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HEALD, D.J.
DATED: APRIL 17, 1997
APPEARANCES:
Mr. Lorne Waldman
For the Applicant
Ms. Kathryn Hucal
For the Respondent
SOLICITORS OF RECORD:
Lorne Waldman
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-2121-96
Between:
DHARAMPAL GOYAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 Applicant' Record - page 11.
2 Applicant's Record - Page 12.
3 Applicant's Record - Page 11.