Date: 20040310
Docket: IMM-1957-03
Citation: 2004 FC 363
OTTAWA, ONTARIO, THE 10th DAY OF MARCH 2004
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
GURPAL SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel), dated February 26, 2003, that the applicant is not a "Convention refugee" or a "person in need of protection" under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2] There is no transcript of the hearing that took place on January 30, 2003, before the panel. For unknown reasons, the tapes of the hearing are completely blank. The applicant's attorney requested, on a preliminary basis, that I allow the application for review and that I refer the matter for rehearing. I reserved my decision on this point and heard from both counsel on the merits of the matter, and I have concluded that this preliminary application is well founded.
[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.
[4] The applicant, Gurpal Singh, is 41 years old and is a citizen of India. He claims refugee status based on his perceived political opinion. The applicant had allegedly been subjected to arrests and mistreatment by the police. The applicant states that he was a taxi driver. In June 1999, he says that he was arrested and beaten by the police for having transported members of the "Akali Dal Mann Party" in his taxi. Two months later, he claims to have joined the "Khaira Action Committee". In June 2001, he was allegedly arrested twice at his family residence because he was suspected of collaborating with militants. In August 2001, he was threatened in his taxi by three passengers with guns who forced him to avoid a checkpoint. Shortly afterward, he was arrested on the road by the police. The applicant was taken to the police station, where he was allegedly tortured on the ground that he was collaborating with the terrorists. In September 2001, he moved to New Delhi. He learned that his mother had been attacked and that his brother-in-law had been arrested by the police. He arrived in Canada on October 28, 2001.
[5] In its decision, the panel found that the applicant generally lacked credibility. In doing so, the panel disregarded documentary evidence submitted by the applicant that, generally speaking, corroborated his testimony to the effect that he and other members of his family had been persecuted. Accordingly, the panel determined that the applicant had not discharged his burden of proving that he was a Convention refugee. The panel also found that the applicant was not a "person in need of protection" in the sense that his return to India would not subject him to a risk to his life or to a risk of cruel and unusual treatment or punishment and that there were no substantial grounds to believe that the applicant would be in danger of being tortured if he were to return to India.
[6] In its decision, the panel specifically criticized the applicant for giving a confused version of the reasons for which he was being sought by the police and also for altering his testimony in stating, subsequently, that the police regarded him as a terrorist because he had left India without permission. The grounds for the applicant's arrests and the fact that he was a taxi driver bear on some key aspects of his testimony. In this regard, the applicant maintains that the panel ignored certain parts of his testimony or arbitrarily rejected his explanations. Also, according to the medical report filed by the applicant, he apparently suffers from memory problems. It is therefore a matter of seeing to what extent this could have affected his testimony (as the panel had noted that this was not the case). The panel also cited an omission in the applicant's testimony that it described as "important". The panel was referring to the fact that, in August 2001, the applicant was arrested at home by the police. On this occasion, he was allegedly told that the photos that had been taken of him would be sent to all the police stations in Punjab and in India. This fact was not mentioned in the applicant's personal information form (PIF). Nevertheless, when we examine the PIF, we see that the arrest in August did not take place at the applicant's house, but occurred on the road while the applicant was at the wheel of his vehicle. In that case, was the panel mistaken about the arrest (the arrest at the family residence described by the applicant in his PIF actually took place in June 2001), or rather was it the applicant who contradicted himself in his testimony?
[7] In light of the above, because of the absence of a transcript, it is very difficult, if not impossible, for this Court to review the general finding of lack of credibility by the panel, the validity of which is now being contested by the applicant. As we can see by reviewing the decision, this is not a case where the panel's finding is essentially based on the documentary evidence. In the absence of a transcript, it is impossible, unfortunately, to determine whether the panel's finding was based on the evidence, or whether the finding was made in a perverse or capricious manner. Furthermore, the applicant submitted certain documentary evidence that corroborates his version of the facts but, as stated above, the evidence was disregarded because the panel found that the applicant generally lacked credibility. In view of the fact that only the applicant filed affidavit evidence, and in view of the allegations in these affidavits and the Court's inability to review the finding on general credibility (Ahmed, supra), I believe that, in the best interests of justice, this application for judicial review must therefore be allowed. The parties have not proposed any question for certification and, in my opinion, there is no question of general importance that should be certified in this case.
ORDER
THE COURT ORDERS that the application for judicial review be allowed. The panel's decision, dated February 26, 2003, is set aside and the matter referred to the Board for rehearing and redetermination before a differently constituted panel. No question of general importance will be certified.
"Luc Martineau"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1957-03
STYLE OF CAUSE: GURPAL SINGH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUÉBEC
DATE OF HEARING: MARCH 3, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATE OF REASONS: MARCH 10, 2004
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
IAN DEMERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANT
MONTRÉAL, QUÉBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA