Last Updated: Wednesday, 13 December 2017, 11:55 GMT

Malik v. Canada (Minister of Citizenship and Immigration)

Publisher Canada: Federal Court
Author Federal Court of Canada, Trial Division
Publication Date 17 April 2003
Citation / Document Symbol [2003] F.C.J. No. 645; 2003 FCT 453
Type of Decision IMM-1918-02
Cite as Malik v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 645; 2003 FCT 453 , Canada: Federal Court, 17 April 2003, available at: http://www.refworld.org/cases,CAN_FC,4132e3d54.html [accessed 14 December 2017]
Comments Heard: April 15, 2003. Judgment: April 17, 2003. (23 paras.)
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Between
Gurjit Singh Malik, applicant, and
The Minister of Citizenship and Immigration, respondent

[2003] F.C.J. No. 645
2003 FCT 453
Docket IMM-1918-02

Federal Court of Canada – Trial Division
Montréal, Quebec
Tremblay-Lamer J.

Heard: April 15, 2003.
Judgment: April 17, 2003.
(23 paras.)


Aliens and immigration — Admission, refugees — Grounds, well-founded fear of persecution — Grounds, political activity — Persecution, protection of country of nationality — Credible basis for claim — Appeals or judicial review, grounds — Referral to board where decision quashed.

Application by Malik for judicial review of a decision of the Convention Refugee Determination Division wherein the Board determined that he was not a Convention refugee. Malik was a 31-year-old citizen of India. He was married and had two children. He claimed to have a well-founded fear of persecution by reason of his perceived political opinion. The Board rejected his claim on the basis that he was not credible and because he failed to demonstrate that state protection in India was not available to him. Malik submitted that the Board's adverse credibility finding was not based on contradictions, inconsistencies and evasions, but rather on the implausibility of his story. The Board held that there was no evidence that Sikhs were persecuted in the state of Haryana. Malik's claim was not based on the fact that he suffered persecution as a Sikh, but rather that he suffered persecution due to his imputed political activity: helping militants from Kashmir. The Board did not believe that Malik had been tortured because there were no scars on his body but there was a medical report describing the scars on his body.

HELD: Application for judicial review allowed and the Board's decision was set aside and the matter sent back for redetermination by a differently constituted panel. A review of the recent documentary evidence indicated that the authorities in India suspected a nexus between Sikh militants and Kashmiri insurgents in Haryana, and that the police had arrested and cracked down on Sikh youths. The Board could not ignore substantial documentary evidence which was consistent with Malik's claim and could have had a direct impact on the plausibility of his story. The Board failed to consider the totality of the evidence. It was necessary for the Board to have discussed the medical report and if it chose to disregard this evidence, then reasons should have been provided for doing so. The Board's failure to discuss this evidence amounted to a reviewable error. Given that the police were the aggressors and the perpetrators of the acts of violence, it was unreasonable to have expected Malik to seek protection from the police. The Board erred in imposing on Malik the burden of seeking redress from agencies other than the police.

Counsel:

Jean-François Bertrand, for the applicant.
Christine Bernard, for the respondent.

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REASONS FOR ORDER AND ORDER
1 TREMBLAY-LAMER J.:— This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated April 3, 2002, wherein the Board determined that the applicant was not a Convention refugee.

2 The applicant is a 31-year-old citizen of India. He is married and has two children. He claims to have a well-founded fear of persecution by reason of his perceived political opinion.

3 The Board rejected the applicant's claim on the basis that he was not credible and because he failed to demonstrate that state protection in India was not available to him.

4 The applicant first submits that the Board's adverse credibility finding is not based on contradictions, inconsistencies and evasions, but rather on the implausibility of his story. The Board held that there was no evidence that Sikhs were persecuted in the state of Haryana. However, the applicant's claim was not based on the fact that he suffered persecution as a Sikh, but rather that he suffered persecution due to his imputed political activity: helping militants from Kashmir.

5 The respondent argues that the Board was entitled to make an adverse credibility finding based on the lack of documentary evidence supporting the applicant's claim, and to determine that Sikhs were not targeted in Haryana.

6 I disagree. A review of the recent documentary evidence indicates that the authorities in India suspect a nexus between Sikh militants and Kashmiri insurgents in Haryana, and that the police have arrested and cracked down on Sikh youths.

7 While it is true that the Board in entitled to rely on the evidence it prefers, in doing so, it cannot ignore substantial documentary evidence which is consistent with the applicant's claim and can have a direct impact on the plausibility or implausibility of the story told.

8 Based on the above, I am not satisfied that the Board considered the totality of the evidence.

9 On the adverse finding of credibility, it is trite law that this Court is reluctant to interfere with a decision of the Board based on the credibility of a witness, given the Board's ability to assess the witness in oral testimony before it (Ankrah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 385 (Q.L.)). Where the Board finds a claimant not credible based on implausibility findings which are open to it on the evidence, this Court will not interfere in the decision unless an overriding error has been made by the Board (Oduro v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 106).

10 However, the Board cannot be silent on relevant documentary evidence which corroborates the applicant's claim and which could have an impact on disputed facts central to the applicant's claim. As pointed out by Evans J. in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, the burden of explanation increases with the relevance of the evidence in question. He stated at para. 17:

[...] 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": [...] In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. [...]

11 In the case at bar, the Board stated that it did not believe that the applicant had been tortured as he alleged, because there were no scars on his body. However, in making this determination, the Board ignored the evidence which contradicted this finding and corroborated the applicant's allegation of torture.

12 The medical report of Dr. Yee describes the scars that were found on the applicant's body:

In conclusion, the above-mentioned scars and the injuries on the 3rd, 4th and 5th nail beds of his left hand could possibly be related to his allegations of beatings, tortures and burns suffered in India in March 2000. Therefore his physical examination would not be incompatible with his allegations.

Tribunal record at 084.

13 Given the importance of this medical certificate to the applicant's claim, I am of the opinion that it was necessary for the Board to have discussed it. If the Board chose to disregard this evidence, then reasons should have been provided in its decision.

14 In Bains v. Minister of Employment and Immigration (1993), 63 F.T.R. 312, the Board disregarded the applicant's documentary evidence, which included a doctor's certificate. Cullen J. stated at para. 9:

[...] I agree that it is within the purview of the panel to review the documentation and accept or reject the information, however, the Refugee Division cannot simply ignore the information, [...] The Refugee Division, in my view, is obligated, at the very least, to comment on the information. If the documentation is accepted or rejected the applicant should be advised of the reasons why, especially as the documentation supports the applicant's position.

15 In Kouassi v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1199 (Q.L.), I reiterated the comments of Gibson J. in Atwal v. Canada (Secretary of State) (1994), 82 F.T.R. 73 where he articulated at para. 10:

It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. The fact that a Tribunal fails to do so does not, in ordinary circumstances give rise to a conclusion that the Tribunal has failed to take into account all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal's decision.

16 In the case at bar, the Board made no mention of the medical certificate in its decision. In my view, the Board's failure to discuss this evidence in its decision amounts to a reviewable error.

17 Regarding the issue of effective state protection, the Supreme Court of Canada held in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, that absent a situation of clear breakdown of state apparatus, it should be assumed that the state is capable of protecting a claimant. Unless there is an admission by the state that it cannot afford protection, a claimant must provide clear and convincing proof of a state's inability to protect him.

18 In Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532, the Federal Court of Appeal articulated the following at p. 534:

When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her.

19 However, in the case at bar, given that the police were the aggressors and the perpetrators of the acts of violence, I am of the opinion that it is unreasonable to have expected the applicant to seek protection from the police.

20 In its decision, the Board indicated that the applicant could have sought redress from judicial organizations in his country prior to seeking refuge in a third country. In my opinion, the Board erred in imposing on the applicant the burden of seeking redress from agencies other than the police.

21 This Court has indicated that there is no obligation on an individual to seek counselling, legal advice, or assistance from human rights agencies if the police is unable to help. As held by Lemieux J., "[...] Canadian jurisprudence has repeatedly stated that there is no further burden on an applicant to seek assistance from human rights organizations." (Balogh v. Canada (Minister of Citizenship and Immigration) (2002), 22 Imm. L.R. (3d) 93, at para. 44).

22 For all these reasons, I am of the opinion that the Board also erred in concluding that the applicant failed to demonstrate that state protection was not available to him.

23 As a result, this application for judicial review is allowed. The Board's decision is set aside and the matter is sent back for redetermination by a differently constituted panel.

ORDER
This Court orders that the application for judicial review is allowed. The Board's decision is set aside and the matter is sent back for redetermination by a differently constituted panel.

TREMBLAY-LAMER J.

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