Date: 20050125
Docket: IMM-1211-04
Citation: 2005 FC 105
Ottawa, Ontario, the 25th day of January 2005
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
Avtar Singh MANGAT
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] A decision as such requires that reasons be given so that the soundness of the reasoning be apparent of itself. It is for a specialized tribunal to choose its own methods and thus, to address who, when, why or how, by referring itself to the existing oral and documentary evidence.
NATURE OF JUDICIAL PROCEEDING
[2] The application for judicial review at bar, filed pursuant to subsection 72(1) of the Immigration and Refugee Protection Act (the Act),[1] deals with a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) on December 8, 2003, the reasons for which were signed on January 15, 2004. In that decision, the Board determined that the respondent met the definition of a "Convention refugee" under section 96 of the Act.
FACTS
[3] These are the facts alleged by the respondent Avtar Singh Mangat, a citizen of India. In the course of the February 2002 elections, he identified himself and supported the Akali Dal candidate in his district. In those elections, certain individuals tried in vain to force him to support the Congress Party candidate. Following the elections, the Congress Party was returned to power in the Punjab and the result of Mr. Mangat's refusal to cooperate with the people in that party during the elections was police harassment, five arrests and torture prompted by vengeance. Following these events, which took place from April to December 2002, Mr. Mangat left his country and on June 3, 2003 arrived in Canada, where he claimed refugee status.
IMPUGNED DECISION
[4] After acknowledging Mr. Mangat's identity, the Board concluded that he was credible and granted him refugee status. As the analysis is quite short, the Court sets it out in full:
[TRANSLATION]
The critical issue in the case at bar is credibility.
Identity
The panel acknowledges the refugee protection claimant's identity as an Indian citizen based on his testimony and his identity documents.
Credibility
The claimant testified directly. Based on what was presented to it, the panel identified no major contradictions or improbabilities which might have led it to draw an unfavourable conclusion in this case.
The panel considers that the fact of being tortured in a police station is an act of persecution as such. In the instant case, it was associated with one of the five grounds of the Convention: alleged political opinions.
Additionally, the torture allegations of persons arrested by the police are corroborated in the always ample, often varied, documentary evidence.
So far as protection is concerned, the panel considers that in view of the legal status of the persecutors, the police, it would be unreasonable to think that the claimant could obtain any protection whatever.
The panel concludes that in the instant case there is a reasonable possibility of persecution if the claimant returns to his country.
POINTS AT ISSUE
[5] 1. Did the Board err in not addressing the existence of an internal flight alternative in its reasons?
2. Did the Board err in determining that there were no major contradictions and implausibilities in the respondent's testimony?
ANALYSIS
[6] As a preliminary observation, Mr. Mangat noted formal and substantive defects in the originating notice filed by the applicant. However, as the applicant by motion on June 3, 2004, obtained the Court's leave to file an application for leave and amended application for judicial review to correct these defects, the matter is closed on this point.
1. Did the Board err in not addressing the existence of an internal flight alternative in its reasons?
[7] It is clear from reading the transcript of the hearing that the question of an internal flight alternative was raised and dealt with at length, both by Mr. Mangat's counsel and the refugee protection officer as well as the Board. In the applicant's submission, the Board erred in law in not expressly referring to the possibility of an internal flight alternative in its reasons. In support of his contentions, he cited Thirunavukkarasu v. Canada (Minister of Employment and
Immigration),[2] a judgment of the Federal Court of Appeal. The Court does not see any mention anywhere in that case of a requirement that the Board should expressly address the existence of an internal flight alternative in its reasons.
[8] In cases where the Board determines that a refugee status claimant has no internal flight alternative, it is not required to address this point in its reasons. The general applies to the effect that is assumed that the Board has considered and assessed the evidence submitted to it. It is only where the Board concludes that an internal flight alternative exists that it is has the obligation to clearly indicate such in its reasons and to indicate its very reasons which it arrived at such conclusion. Accordingly, the Board did not err on this point.
2. Did the Board err in determining that there were no major contradictions and implausibilities in the respondent's testimony?
[9] It is well established that on questions of credibility as in the case at bar the Board's error must be patently unreasonable if the Court is to intervene (Aguebor v. Canada (Minister of Employment and Immigration) (F.C.A.);[3] Pissareva v. Canada (Minister of Citizenship and Immigration);[4] Singh v. Canada (Minister of Citizenship and Immigration)).[5]
[10] The Board said that it found no major contradictions or implausibilities in Mr. Mangat's testimony and so concluded that he was credible. With respect, the Court agrees with the applicant that there are a number of doubtful points in Mr. Mangat's testimony which, taken as a whole, require review of the decision for protection of Mr. Mangat. The following are the points in question.
1. Mr. Mangat said that he had been arrested five times on account of his activities in Akali Dal. He said he was very politically active in his district, that politically speaking he was the most important person in his village on account of his commitments, but he was not even a member of the party. He explained that this is not necessary as he was very close to the Akali Dal candidate. His counsel argued that it was not unusual, even in Canada, for volunteers working very actively for political candidates not to be members of the party in question. The Court nevertheless finds this argument unlikely.
2. Mr. Mangat testified that 20 to 50 articles a day spoke of the harassment and persecution suffered by those supporting Akali Dal, but he did not enter any of these in evidence. Additionally, the refugee protection officer also indicated that he had made an exhaustive search and had found no documentary evidence to that specific effect. The Court considers that the lack of general documentary evidence confirming the existence of the type of persecution Mr. Mangat claims to have suffered casts serious doubt on the truthfulness of the facts alleged. There is no question that isolated cases of persecution may exist, but in general persecution is established by some form of documentary evidence on the situation in the country in question.
3. The purpose of the persecution to which Mr. Mangat was subjected was allegedly just vengeance. It would have been more logical if he had been harassed before the elections, not after them, since the persecutor, the Congress Party, is now in power. Mr. Mangat's counsel responded that the fact the persecution took place after the elections was not irrelevant, since it was carried out for reasons of vengeance. Nevertheless, the Court finds the time at which the persecution took place curious.
4. Mr. Mangat was arrested, detained and abused five times on false pretexts, but it is surprising he was released each time rather than falsely charged and imprisoned for a longer period.
5. If Mr. Mangat's problems were actually related to the fact that Congress Party members wanted his votes and his assistance before the elections, then why would the police now tell him not to leave Punjab? On the contrary, it would be logical to think that the people harassing him would have been satisfied that Mr. Mangat had left Punjab and that he was therefore no longer working for Akali Dal in his district.
6. Also, the respondent omitted a significant fact in his Personal Information Form about the fact that his uncle is a gangster; and according to the respondent, there were gangsters in the Congress Party who harassed him at his uncle's instigation. All this was because the uncle had a dispute with the respondent's family about a piece of land which belonged to the respondent's family.
[11] The Court recognizes that this is a borderline case. It is aware of the very high standard of review necessary to quash a decision by the Board on a point of credibility: the Board must be allowed ample room to manoeuvre on account of its expertise and the clear advantage represented by seeing the claimants and hearing them testify, with all the valuable information that provides. However, on account of the lack of documentary evidence at the hearing establishing persecution of persons supporting Akali Dal, and on account of the combined effect of the six points mentioned above, the finding that there was no contradiction or major implausibility is so unreasonable as to require the Court's intervention, since that conclusion clearly does not take sufficient account of the oral and documentary evidence submitted at the hearing. That said, it will be for the Board to reconsider the matter and render its decision with reasons, giving pertinent references to the oral and documentary evidence based on its special expertise, as it sees fit, based on the evidence before it.
CONCLUSION
[12] For these reasons, the Court answers the first question in the negative and the second question in the affirmative. Accordingly, the application for judicial review is allowed.
ORDER
THE COURT ORDERS that this application for judicial review be allowed and the matter be referred to the Board for rehearing. No question is certified.
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"Michel M.J. Shore"
Judge |
Certified true translation
K. Harvey
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1211-04
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
v.
AVTAR SINGH MANGAT
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 18, 2005
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE SHORE
AND ORDER BY:
DATE OF ORDER AND ORDER: JANUARY 25, 2005
APPEARANCES:
Édith Savard FOR THE APPLICANT
Jean-François Fiset FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOHN H. SIMS FOR THE APPLICANT
Deputy Attorney General of Canada
JEAN-FRANÇOIS FISET FOR THE RESPONDENT
Montréal, Quebec