Date : 20050422
Docket : IMM-2805-04
Citation : 2005 FC 551
BETWEEN :
ATTAR SINGH GILL
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for leave and for judicial review, under s. 72(1) of the Immigration and Refugee Protection Act ("the Act") S.C 2001, c. 27, of the decision ("Decision") made by an officer ("Officer") of the Refugee Protection Division of the Immigration and Refugee Board ("Board"), dated January 8th, 2004. The Officer found that the applicant was not a Convention refugee or a person in need of protection.
[2] The applicant, Attar Singh Gill, is a citizen of India. He was born on February 13th, 1976. He is claiming refugee protection on the basis of persecution by the police in India.
[3] The applicant was arrested three times in India: September 1995, January 1996, and December 2002, for periods ranging from a week to ten days. The first arrest was because he had not heard an order given by the police to assemble at the gurdwara. The second was because the police wanted information regarding one of the applicant's friends who had disappeared. The third arrest was due to the fact that the applicant had taken passengers, in his taxi, to Jammu and Kashmir. During each of the detention periods, the applicant says he was interrogated, beaten and tortured.
[4] After the first two arrests, the applicant's village council and a bribe helped secure his release. The applicant's father paid an amount of money for his release after the third arrest. He says his taxi union also helped secure his release. The applicant required medical treatment after each arrest. Faced with the police problems, the applicant decided to leave the country.
[5] He arrived in Canada on April 6th, 2003, arriving in Toronto.
[6] The Board found that the applicant was not a refugee or a person in need of protection. The Board noted that the applicant's identity was in question due to contradictions in spelling on his various forms of identification and that his credibility was also in question.
[7] The Board made a number of credibility findings and put forth the belief that the applicant's story was simply invented for the purpose of his claim. His credibility is impugned on the following bases:
(a) His identity documents (drivers licence, school certificate, birth certificate, and driver's licence) contain three different spellings of his first name (ATTAR, ATAR, and ATTER). The applicant claims that the people completing the documents made mistakes, but the Board is not satisfied with the applicant's explanation. The Board considers it implausible that a person with so many documents containing different names would have succeeded in identifying himself in his country.
(b) There is a contradiction between the applicant's Personal Information Form (PIF) and his Port of Entry (POE) notes, which puts into question which purported arrest was the last one claimed. The applicant claims that the contradiction was a mistake.
(c) In addition, the applicant's testimony suggests that the third, and final, arrest was in 2002, but the POE notes state that his last arrest was in 2000. The applicant said he made the mistake because he was nervous an anxious. The Board does not accept this explanation, especially considering that the POE notes were created a mere four months after the alleged final arrest.
(d) The Board notes that it is easy to obtain false documents in India, and gives no probative value to documents filed by the applicant (exhibits C-2 to C-8, and C-10 to C-13). The Board also gives no probative value to a medical report (C-9), as it does not believe the applicant's testimony, and the report is based on facts that the Board has rejected.
[8] The Board found that the applicant is not a Convention refugee or a person in need of protection.
[9] The applicant submits two issues for consideration:
(a) did the Board err in determining that the applicant's testimony was not plausible or credible in certain respects; and
(b) did the Board make a capricious finding of fact unsupported by evidence that the applicant does not face a danger of persecution in India.
[10] The issues can be condensed into one question: did the Board make a capricious or perverse credibility finding, without due regard to the evidence properly before it?
[11] The applicant argues that the Board's negative inference regarding the different spellings of his name is patently unreasonable. He argues that his name is a Sikh name and the English spelling may vary in accordance with the person's phonetic understanding of the name.
[12] The applicant argues that he was emotionally distraught and nervous during his interview with the Immigration officer at the port of entry, due to fear of deportation. He says the errors he made were due to his nervousness and his resulting lack of concentration.
[13] The applicant also argues that the Board failed to analyse the impact of the current country conditions. He argues that the issue of credibility alone is not determinative of a refugee claim. He says that the Board did not doubt that he was a Sikh from Punjab. He argues that the Board erred by failing to assess the country condition documents and thereby failed to address the applicants subjective fear as a Sikh. The applicant says that, even if the Board found him not to be credible, it still had to consider whether he had a well-founded fear of persecution as a member of a particular social group, namely a Sikh from Punjab who is a suspected militant.
[14] The Board's decision in insufficient in general. The specific areas where the Board did not appropriately consider the evidence before it include the analysis of the applicant's identity documents, the disregard of the documents supporting the arrest and detainment, the applicant's contention regarding the contradiction (and supporting medical documentation) that he was nervous during testimony and the Board's blanket dismissal of the documentary evidence based solely on the prevalence of document fraud in India.
[15] The applicant's argument that his name may be spelled differently based on the phonetic understanding on the transcriber, is a persuasive argument, or at least persuasive enough that the Board's reasons for dismissing his identity documents are not sufficient. The respondent relies on Kelen J.'s decision in Gasparyan v. Canada (Minister of Citizenship and Immigration) 2003 FC 863, which states at para 6:
¶ 6 The appropriate standard for reviewing the Refugee Division's assessment of identity documents is patent unreasonableness: Adar v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 35 at para. 15; and Mbabazi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1623, 2002 FCT 1191 at para. 7. The panel had first-hand access to the identity documents and the testimony of the applicants, and also possesses a high level of expertise in this area.
[16] The decision goes on to state, at para 8:
¶ 8 In any event, the Refugee Division's credibility finding was also supported by the principal applicant's limited knowledge of the Jewish faith and the omission of significant facts from his PIF. These concerns were raised by the panel at the hearing and the applicants were given a chance to address them, but their responses did not satisfy the panel. Even if the principal applicant's birth certificate was authentic, these shortcomings are sufficient to support the panel's negative credibility finding. (emphasis added)
[17] The Court, in Gasparyan supra, found that even if the identity documents were authentic, the decision could not stand. In the instant case, if the identity documents are taken as authentic, then the remainder of the decision cannot stand.
[18] I am of the opinion that the identification documents must be taken as authentic for a number of reasons including, inter alia, the reasonable phonetic spelling errors possible in transcription and the fact that on each of the pieces of identification in question the other information matches, including the applicant's father's name. The Board's decision to question the identity of the applicant is an unreasonable decision and cannot stand.
[19] However, as stated in Gasparyan, supra, given that the identity documents were unreasonably discarded, the remainder of the decision must be examined, to see if it can stand without the identity finding.
[20] The Board's first question of the applicant's credibility comes out of an inconsistency between an entry interview with an Immigration officer and a statement in his PIF regarding his last arrest. The applicant said that the contradiction was a mistake, as he was discussing his second arrest, and not his final arrest with the Immigration officer. On this point, I am inclined to accept the applicant's explanation, due to the fact that he supplies evidence of his final arrest in 2002 (p. 140 Tribunal Record) and a supporting affidavit for the evidence (p. 141 Tribunal Record). The Board's decision is unreasonable, given that the only rationale for dismissing the documentary evidence is the ease of obtaining fraudulent documents in India and the unreasonable finding that the applicant is not credible.
[21] Likewise, the Board puts too much emphasis on the small inconsistency in the applicant's testimony (he said 2000 instead of 2002) and does not consider the documentary evidence or the nervous state of the applicant throughout his testimony. The applicant supplies a medical document and diagnosis (p. 131 and p. 135 Tribunal Record) which state that the applicant was beaten and suffers from anxiety as a result, and are completely ignored by the Board. The Board bases the dismissal of the documentary evidence on the impugned credibility of the applicant, yet fails to establish reasonable grounds for the negative credibility finding. The failure to consider the documentary evidence brings me to the conclusion that the Board's credibility findings are not reasonable and cannot stand.
[22] The final dismissal by the Board is the documentary evidence, using the blanket statement that "it is easy to obtain false documents in India". The Board does not say why they suspect the documents supplied by the applicant are false but rather make a bald allegation that, since a lot of documents in India are false, all the applicant's documents must be false. This non sequitur cannot stand up as a valid reason for dismissing the documentary evidence supplied by the applicant.
[23] The decision in general was not made with regard to the material properly before the Board, and cannot stand. The official identity documents supplied by the applicant were not adequately considered and compared, despite the phonetic transcription errors in the applicant's first name. The documentary evidence was unreasonably dismissed, based on a nervous mistake, and an insignificant contradiction. There was no analysis done of the documentary evidence per se and a bald allegation was used to dismiss all of the applicant's evidence. Considering all of the unreasonable errors in the Board's credibility decision, the decision cannot be allowed to stand.
[24] The application for judicial review is allowed and the matter returned to a differently constituted panel for reconsideration.
Rouleau J.
JUDGE
OTTAWA, Ontario
April 22, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS : IMM-2805-04
STYLE OF CAUSE : Attar Singh Gill v. TheMinister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 12, 2005
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: April 22, 2005
APPEARANCES:
Ms. Lani Gozlan FOR THE APPLICANT
Ms. Sharon Stewart-Guthrie FOR THE RESPONDENT
SOLICITORS OF RECORD:
Max Berger Professional Law Corporation
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT