Date: 19980925
Docket: IMM-4111-97
| BETWEEN: BIKKAR SINGH BHANDAL |
Applicant
| AND: THE MINISTER OF CITIZENSHIP and IMMIGRATION |
Respondent
REASONS FOR ORDER and ORDER
DENAULT J:
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (Refugee division) wherein it was determined that the applicant, a Sikh from India, was not a Convention refugee. The tribunal made an adverse finding on the general credibility of the applicant regarding two incidents when he was arrested by the police in December 1995 and in May 1996, and then denied any credence on the other portions of his testimony including a previous incident with the police in September1995.
[2] After hesitation, I have finally come to the conclusion that this application for judicial review ought to succeed. A brief analysis of part of the evidence with respect to the non-credibility finding will suffice to show why.
[3] When it began to analyse the facts of the case, the panel stated that the credibility of the applicant"s evidence was of utmost importance. Regarding the December 1995 detention of the applicant when he was arrested on his returning home after attending a religious ceremony at Darshan Singh"s house, he was questioned as to the number of people attending the ceremony. The applicant answered that there were a lot of people, without knowing the real number. Yet the panel refused to believe that the applicant had ever been arrested on that occasion and wrote (p. 11 of the applicant"s Record) :
| The mere attendance at a religious ceremony would hardly implicate the claimant. The 250 persons who attended the ceremony would hardly have done so if their liberty were at stake. There is no evidence that other guests were arrested and detained. We do not find it plausible that the police, at a time of reconciliation in Punjab, would have detained the claimant without having any knowledge of his participation in Darshan"s terrorist activities. |
[4] Having read the transcript of the applicant"s testimony and his answers to question 37 of his PIF (page 101 of the applicant"s record), I am of the view that the board misconstrued the evidence and drew unreasonable inferences with respect to this incident, thereby warranting the intervention of the Court.
[5] Firstly, the tribunal mistook the people attending the religious ceremony of December 1995 for the 250 persons present at the marriage ceremony of the applicant"s cousin that took place in May 1996. Secondly, it wrongly refused to believe the applicant on the basis of absence of evidence of other guests being arrested and detained when the applicant had no knowledge of that fact. Thirdly, the tribunal erroneously presumed that Darshan Singh was involved in terrorist activities, that finding being based on bare allegations by the police but not on the applicant"s opinion or knowledge.
[6] For these reasons, the application for judicial review should be allowed, the decision of the board dated September 11, 1997 set aside, and the matter returned to a differently constituted panel of the Refugee division for rehearing. No serious question of general importance is certified.
O R D E R
The application for judicial review is allowed, the decision of the board dated September 11, 1997 is set aside, and the matter is returned to a differently constituted panel of the Refugee division for rehearing.
J.F.C.C.