Date: 20040805
Docket: IMM-5045-03
Citation: 2004 FC 1071
Montréal, Quebec, August 5, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
HARJEET SINGH KHAIRA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by a panel of the Refugee Protection Division (panel) dated June 3, 2003. The panel refused to recognize Harjeet Singh Khaira (applicant) as a Convention refugee or a person in need of protection within the meaning of section 97 of the Immigration and Refugee Protection Act (Act).
FACTS
[2] The applicant is a citizen of India, from the region of Punjab. He claims that he came to Canada on June 13, 2002, but there is no evidence of this fact. His journey from India to Canada was arranged by a "smuggler", who took care of the travel documents, plane ticket and passport, but did not give them to the applicant. The panel nevertheless determined that his identity had been established by the other identification documents he had on him.
[3] The applicant alleges that he fears being tortured by the police if he were to return to his country. His claim is based on his being related to one Kulwant Singh, who is wanted for terrorism by the authorities. On two occasions, the applicant was arrested and seriously beaten and mistreated by the police who interrogated him to find out where Kulwant Singh could be found. The claim is also based on the fact that he is Sikh, a minority community persecuted in Punjab.
[4] The first time, in September 2000, the police came to the applicant's home and arrested him, as well as his father, who was interrogated and mistreated as well because they were looking for Kulwant Singh, the applicant's uncle.
[5] The applicant and his father were released because the people from the village intervened and paid a bribe to the police.
[6] In March 2002, Kulwant Singh showed up at the applicant's house, in order to hide there. The applicant and his mother (the father was absent) refused to receive Kulwant, given the past problems. Kulwant left again but the police learned of his visit. The police officers therefore showed up a second time in order to arrest the applicant, who they seriously mistreated. The applicant's father sought refuge at his brother's house in New-Delhi, where the applicant went to join him after being released (another bribe) and treated at the medical clinic. The applicant had to report to the police station on April 1 but, fearing the worst, he chose not to go to the police station. It was then that he decided to flee India. His uncle helped him contact the smuggler who helped him to come to Canada.
[7] The applicant filed into evidence a letter from the medical clinic that treated him following the physical abuse inflicted by the police. The letter reports "multiple injuries and severe pain" for the first time that he was allegedly brutally interrogated for a day; the letter describes more precisely the injuries suffered in the course of the second interrogation at the police station, which lasted three days: "Multiples injuries, especially on his face, bruises and pain in the lower and upper extremities. His wounds were dressed and sutured".
[8] He also adduced a letter from a doctor at the Côte-des-Neiges CLSC, in Montréal, where he has been treated since November 2002 for the following problems:
"mixed headaches (post-traumatic and tension); anxiety with elements of post-traumatic stress".
[9] The record includes the affidavit of Meeta Ram, Sarpanch of Gram Panchayat, from the applicant's native village, confirming the dates of arrest, the abuse and the applicant's flight. In the record we also find a letter from the Gurdwara committee, from the same village, stating that the applicant's father was vice-president of the Sikh temple.
ANALYSIS
[10] It is settled case law that the Court does not intervene in cases where the claim fails for lack of credibility, unless the decision is patently unreasonable. In view of the Refugee Division's expertise, in view of the fact that the panel is in a better position to assess the applicant's credibility, there must be serious grounds for intervention. In my opinion, in this case the Court's intervention is warranted.
Absence of a transcript
[11] There is no transcript of the part of the hearing bearing on the review of the evidence. The first two cassettes are blank; only the third was transcribed. It only contains the reply by applicant's counsel.
[12] For the purposes of a judicial review, when the applicant's credibility is at issue, in my view it is essential that the Court be able to review what happened at the hearing, what questions were asked, what answers were given. That is all the more important in a matter such as this, when the evidence is complicated by the fact that an interpreter was present. One passage from the decision illustrates how difficult it is for the Court to review the decision without having more information about the hearing itself. The panel tried to understand why the applicant had answered in the negative the question in the immigration document, i.e. whether he had already been arrested or detained:
Without explaining these contradictions, which the panel considers significant because they go to the very heart of his claim, the claimant got bogged down with his answers:
No, I have never been in prison. It was the interpreter who gave four answers:
1. It's possible;
2. But I have never been in prison;
3. He talked to me about prison;
4. It might be my mistake.
The panel therefore doubts that the claimant actually had any physical disorder resulting from torture inflicted on him in his country at the time of these arrests, since it is not unreasonable to think that, if he had in fact been tortured, he would not have failed to mention it.
[13] The panel questioned the torture, as well as the arrest. The passage cited above clearly indicates that there was a failure to communicate between the applicant and the panel, through the interpreter. Without other information, the evidence of lack of credibility is not persuasive. The apparent contradiction has not been resolved, and it is impossible to know if this is because of the failure to communicate. The applicant, in saying that he had never been detained and imprisoned, did not contradict his claim that he had been arrested and brutally interrogated. In his mind, detention and prison perhaps follow a trial, which he did not experience. Likewise, when the applicant said that he did not suffer from an "illness, or physical or mental disorder", that did not mean that he had not been tortured. The decision suggests that he had misunderstood the question, which the panel did not find credible. Without more, it is impossible for the Court to determine.
[14] In Singh v. Canada Minister of Citizenship and Immigration), [2004] F.C.J. No. 427, Martineau J. of our Court allowed an application for judicial review because there was no hearing transcript. I refer to paragraph 3 of his decision which, in my opinion, also applies to the situation in this case:
[3] On the one hand, it has been repeatedly established that the failure to record proceedings, except when it is provided by law, does not give rise to recourse for violation of the rules of natural justice (Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793 at paragraphs 79-87 (S.C.C.)). On the other hand, the absence of a transcript, while it is not fatal, can hinder the Court sitting in review from verifying, inter alia, whether the panel's general finding of lack of credibility is supported by the evidence in the record and whether this finding is reasonable. In this case, there is no requirement in the Act pertaining to the recording of the remarks made at the hearing. The Court must therefore determine whether the record provided allows it to properly dispose of this application for review (Ahmed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 739 (F.C.T.D.) (QL), (2000) 182 F.T.R. 312; and Hatami v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 402 (F.C.T.D.) (QL)). I have considered in particular the nature of the questions that were raised before the panel and the other elements discussed below and the record does not allow me to properly dispose of this application.
Assessment of the evidence
[15] In my view, the reasons given by the panel to support its adverse finding of credibility are clearly insufficient. Gracielome v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 463 (C.A.) states:
Although this Court is not generally empowered to intervene in questions that involve weighing the evidence, it is otherwise when that process is itself based on errors of law or findings of fact that are manifestly in error: and that is the case here.
[16] In my opinion, in this case there are too many shortcomings in the assessment of the evidence, especially considering the absence of the transcript. In Gracielome, the Court identified a number of contradictions pointed out by the Board in support of its decision to dismiss the refugee claim, yet, said the Court, they were not contradictions. Here, also, the apparent contradictions are dispelled when we look at them more closely.
[17] The panel did not believe that the applicant would have remained in the country after the first torture session if it had indeed taken place. Yet, the applicant gives a reasonable explanation in his story: not having any information to provide about the uncle, he and his father thought that they would be left alone. That was the case, incidentally: they were no longer worried by the police until the day that the wanted uncle came to their home. It was only at that time that the police again acted ruthlessly.
[18] The panel erred on the facts; the applicant never said that the police had told him to remain available after his first arrest. It was after the second arrest that he had to report regularly to the police station, as of April 1, 2002. It was then that he fled his village.
[19] The panel made much of the fact that the applicant did not state in the immigration documents that he had been detained or imprisoned. These documents are dated July 16, 2002; the refugee claim is dated June 14, 2002. In other words, after he made his claim describing the arrest and the torture, the applicant, in response to another question, answered that he had not been detained or imprisoned. The documents indicate that the interviews took place with an interpreter; I believe the explanation lies therein. In my view, there is not necessarily a contradiction between having been arrested but never having been imprisoned, especially given the patent interpretation problems, according to the decision itself.
[20] The panel dismissed the documents from witnesses from the applicant's village. In the case of the letter from the Gurdwara committee, the government's counsel filed one en liasse at the hearing to show that it was a form letter. In the case of the notarized affidavit, in my view it cannot be dismissed in such a peremptory fashion. The panel stated that it was not reliable because it was filed for the purposes of the claim. That is true as a general rule for most affidavits: they serve to support a legal procedure. I do not see how that would undermine the authenticity of the document.
[21] The authenticity of the documents from the physicians - one in Canada, the other in Punjab - were not called into question. The panel merely said that they did not amount to evidence of the torture. True, but they were evidence of injuries and blows, as well as of physical and mental sequella. Out of context, they did not prove anything. In context, they corroborated the applicant's story. The panel could choose not to believe the applicant, but these documents certainly did make his story implausible - quite the contrary. Moreover, the documents are not "based on the story" that the applicant described. They exist independently, provided by persons presumed to be in good faith who had no personal interest in this matter.
[22] In the end, it is difficult to understand why the panel did not believe the applicant. The reasons based on contradictions or implausibilities do not hold up, when examined more closely. The Court does not have sufficient information in regard to the hearing itself. For these reasons, I would allow the application for judicial review and would refer the matter to another panel of the Refugee Protection Division for redetermination of the refugee claim and the claim made under section 97 of the Act.
ORDER
THE COURT ORDERS THAT:
- the application for judicial review be allowed;
- the matter be referred to a differently constituted panel of the Refugee Protection Division;
- no question for certification.
"Pierre Blais"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5045-03
STYLE OF CAUSE:
HARJEET SINGH KHAIRA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 3, 2004
REASONS FOR ORDER AND ORDER: THE HONOURABLE MR. JUSTICE BLAIS
DATE OF REASONS: August 5, 2004
APPEARANCES:
Michel LeBrun FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel LeBrun FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec