Date: 20010321
Docket: IMM-1997-00
Neutral Citation: 2001 FCT 215
BETWEEN:
AJAY SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks to set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated March 28, 2000, whereby the Board dismissed his claim for refugee status in Canada.
[2] The applicant, born on August 28, 1965, is a citizen of India. His claim is based on his imputed political opinion, i.e. the police suspect him of helping the militants and the militants suspect him of helping the police. The applicant left India on December 20, 1998, and arrived in Toronto on the same day. He claimed refugee status in Montreal on December 23, 1998.
[3] In dismissing his claim, the Board concluded its reasons as follows:
After a review of the claimant's testimony, the documentary evidence, and submissions by counsel, the panel has determined that the claimant did not discharge his burden of proof to establish that there is a "serious possibility" or a "reasonable chance" that he would be persecuted in India. This determination is based on the claimant's lack of credibility.
[4] Mr. Mastromonaco, for the applicant, argued that the Board made a number of errors which justify this Court's intervention. Firstly, he points to the first paragraph of page 3 of the decision, and submits that the Board erred in finding that the applicant never mentioned in his Personal Information Form ("PIF") that he had "signed a paper to become a witness". Mr. Mastromonaco submits that, contrary to the Board's finding, the applicant did mention this fact in his PIF. Mr. Mastromonaco is right that there is mention of this fact in the PIF, which can be found at page 19 of the Tribunal Record, where the applicant states that before he was released on November 5, 1996, "I was forced to sign on a blank paper, ...".
[5] Ms. Demers, for the respondent, conceded, as she had to, that the Board had indeed made a mistake, but she argued that this error was in no way determinative of the issue. I agree with her, but, as will appear shortly from my reasons, this error combined with other errors is, in fact, determinative.
[6] Secondly, Mr. Mastromonaco takes issue with the second and third paragraphs of page 3 of the Board's reasons, where the Board writes the following:
The claimant further testified that he went to Uttar Pradesh on June 1, 1998, where he remained until September 30, 1998. From there he went to New Delhi, where he remained until December 20, 1998. This means that he was in India for approximately six months after having left his home allegedly out of fear. Moreover, he testified that although he learned of the death threats by the Sikhs on May 22, 1998, he did not leave for Uttar Pradesh until June 1, 1998.
Furthermore, his testimony reveals that when he left Uttar Pradesh for New Delhi, it was because his father had revealed his whereabouts to the police. Given the previous history of the police vis a vis the claimant, the panel would have expected him to have left India sooner than he did and therefore determines that his behavior is not compatible with that of one who has a well-founded fear of persecution in his country. Moreover, he had the opportunity to claim upon his arrival in Toronto, Ontario, which he did not.
[7] I agree with Mr. Mastromonaco that, in the circumstances, the three-day delay by the applicant in filing his refugee claim in Canada appears to be an insignificant delay. It is not clear what weight the Board placed on this finding, but as the Board saw fit to mention this delay, I have to assume that it was considered to be a relevant factor in the dismissal of the applicant's claim.
[8] With respect to the applicant's delay in leaving for Uttar Pradesh on June 1, 1998, and then leaving for New Delhi on September 30, 1998, I agree with Mr. Mastromonaco that the Board ought to have questioned the applicant regarding these delays in order to determine whether there were reasons which justified the delay. I have carefully read the transcript of the applicant's evidence on two occasions, and I have not been able to find any relevant questions posed by the Board in regard to the issue of delay, including the delay in claiming upon arrival in Canada. As I have said on numerous occasions, the Board must ask relevant questions in order to establish a sufficient factual background so as to properly assess the claim. This, in my view, is another instance where the Board has dramatically failed to do this.
[9] For example, with regard to the delay in claiming refugee status in Canada, why did the claimant not claim in Toronto, but waited to go to Montreal and make his claim there? Where did he reside while in Toronto? What was the name of his agent? How much was actually paid to the agent? Was this amount a plausible figure, considering his income and the family income? There are many questions that could have been asked in order to establish a sufficient factual background, but unfortunately, they were not asked. I am mindful of the fact that Board members are working under time constraints imposed by their superiors, but unfortunately, the poor quality of a decision cannot be excused on those grounds.
[10] One last comment. During the hearing, I indicated to counsel that the Board's reasoning at page 4 of its reasons, under the sub-title "Photos", was, in my view, nonsensical. Photos are a helpful tool to depict something which a decision-maker cannot see for himself. In this case, the photos were being filed to show that the applicant's body was full of scars. As the applicant was present at the hearing, the Board was in a position to visualize these scars and determine for itself whether they existed. In my respectful view, in such circumstances, the photos were of no consequence.
[11] I am of the view that the above noted errors are such that this Court's intervention is warranted and that this judicial review application should be allowed. Therefore, the Board's decision dated March 28, 2000, is set aside and the matter is returned to a differently-constituted panel for reconsideration.
Marc Nadon
JUDGE
O T T A W A, Ontario
March 21, 2001.