Date: 20011102
Docket: IMM-120-01
Neutral citation: 2001 FCT 1194
BETWEEN:
LAKHWINDER SINGH DHILLON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated December 13, 2000, wherein the Board determined that the applicant is not a convention refugee.
[2] The two issues are: 1) did the Board err in failing to make reference to three documents which corroborated the central point in the applicant's case and 2) did the Board err in finding that the applicant was not credible.
[3] The Board found:
The claimant's testimony was riddled with contradictions, omissions and discrepancies, which undermined his credibility and his well founded fear of persecution.
[4] In particular, the Board noted that when questioned regarding Minister's exhibits indicating that he made an application for immigrant status in Canada in 1996, the applicant stated at first that his parents made the application, then admitted that he had made it. The documents also showed that he had worked as a mechanic for 2.5 months, although he had claimed that it was for 8 years. In my view it was open to the Board to find that there was inconsistency in the explanations by the applicant as to who applied. It is somewhat questionable, however, whether the Board was correct to rely on a telephone call made to someone in the employer's office who said that the applicant had only worked for two and a half months.
[5] The Board also found that the applicant was trying to hide his real intentions by failing to mention in his immigration application that he had applied earlier. It is again questionable whether the applicant had any onus to refer to a previous immigration application under question 37 of the PIF.
[6] The Board also found that when the applicant was asked initially why he left his village the applicant stated he had no support and was alone. After counsel pursued questioning he finally mentioned police problems. This led the Board to believe that his intentions were more related to immigration matters and this finding was open to the Board.
[7] Another adverse finding of credibility was made by the Board in connection with the question it had with respect to his problems in India, to which he replied that they related to his brother's alleged support for militants. He had no answer when it was pointed out that the PIF speaks to the murder of a priest, and that the applicant's brother died in 1987. The applicant also stated he was afraid of the police because they had killed his brother and because the police stated that he was linked to the terrorists because he kept them at home and provided them with money. On all the evidence it was open to the Board to find that:
... this contradiction seriously undermines the claimant's credibility. In addition, the panel does not find it plausible that, in the year 2000, the police would persecute the claimant because of his brother who died in 1987.
[8] The applicant agreed that the Board's findings with respect to the interview at the port of entry by Canadian immigration officials was a correct finding. There are errors in the Board's findings with respect to credibility but I am unable to say that the Board's findings in its totality on credibility were unreasonable and constituted a reviewable error. However, they must be considered in connection with the Board's failure to mention three documents.
[9] The applicant testified that he was arrested and taken by the police to the police station and tortured on three separate occasions. These events occurred on October 22 1996, December 31, 1997 and August 23, 1999. The Board did not deal with any of these matters, apparently relying on their finding of his credibility having been undermined. However, there are three pieces of documentary evidence which back up the applicant's statements to some extent.
[10] The Sarpanch of his village sent a letter dated June 21, 2000, wherein he stated, inter alia:
5. That Lakhwinder Singh Dhillon and his family has been a respected member of our Sikh Community. He himself or his parents never indulged in any conflict neither assist any such person.
6. That the Punjab Police falsely impacted his links with militants. He was kept in illegal detentions and tortured. I myself and my panchayat members and some respectable persons of our area intervened and got him released. He was falsely accused of supporting and having relations with militants and his brother Harinder Singh was also killed by police in fake encounter.
7. That the Police is still looking for him.
8. That I am afraid that, if Lakhwinder Singh Dhillon returns to India, he would be killed by the police.
Although some of the foregoing is obviously hearsay, there is sufficient evidence in this letter to warrant the Board referring to this document. There is also a letter at page 101 of the certified record from a doctor at the local village hospital which states that the applicant:
... was under my treatment for his internal and external injuries and multiple burns from 25-10-96 to 29-10-96, 4-1-98 to 10-1-98 and 28-8-99 to 5-9-99.
These dates coincide with the three events described by the applicant. Again, the letter was not mentioned by the Board.
[11] There was a third letter from a doctor in Lasalle, Quebec, which stated that he had examined certain scars and stated:
In conclusion, the above mentioned scars could possibly be related to his allegations of beatings and torture suffered in India from 1996 to 1999. Therefore his physical examination would not be incompatible with his allegations.
[12] Evans J.A. addressed the question of evidence directed to the central issues in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.) at paragraphs 15, 16 and 17, wherein he stated:
15 The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
16 On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
17 However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
In my view, the three documents appear to support the applicant's claim of the incidents and, while not necessarily conclusive, required discussion by the Board according to the reasons of Evans J.A. I note that Tremblay-Lamer J. in Thanni v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1323 (F.C.T.D.) also agrees with Justice Evans, as does Lutfy A.C.J. in Islam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1925 (F.C.T.D.), where he stated at paragraph 8:
... It is incumbent on the tribunal not to ignore documentary evidence, directly related to the claimant's allegations, in its reasons for decision: Djama v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 531 (QL) (C.A.).
He also quotes Evans J.A. with approval.
[13] In my view the failure of the Board to review these three documents is a reversible error. The application for judicial review is allowed. The decision of the Board dated December 13, 2000, is quashed and the matter is returned to a differently constituted board for redetermination.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
November 2, 2001