Date: 20001101
Docket: IMM-1483-00
OTTAWA, ONTARIO, NOVEMBER 1, 2000
BEFORE: TREMBLAY-LAMER J.
Between:
RAJU SINGH SETHI
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
The application for judicial review is allowed. The tribunal's decision is quashed and the matter referred back to another panel for re-hearing.
|
|
Danièle Tremblay-Lamer
JUDGE |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20001101
Docket: IMM-1483-00
Between:
RAJU SINGH SETHI
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review against the decision of the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") that the plaintiff is not a Convention refugee.
[2] The plaintiff is an Indian citizen. In support of his claim, he alleged that he has a reasonable fear of persecution because of his membership in a particular social group or his political opinions.
[3] The plaintiff alleged that he had been unlawfully detained, tortured and threatened with death by the police for his supposed participation in the AISSF group.
[4] The Refugee Division dismissed the claim on the ground that he was not credible.
[5] It is clear that the tribunal has complete jurisdiction to assess the plausibility of testimony and draw the necessary inferences from it.[1] Further, as counsel for the defendant pointed out, there is no doubt that the tribunal does not have to comment on all the evidence entered in the record.
[6] However, when a document relates specifically to the plaintiff and it supports the central aspect of his claim, the tribunal cannot disregard it without giving reasons for doing so.
[7] In the case at bar, the tribunal made no mention of the medical report entered in evidence. As in Kouassi,[2] I consider that the tribunal should have explained why it attached no weight to a detailed medical report which at least in part corroborated the facts central to the plaintiff's claim, in particular the multiple scars which could be consistent with his allegations of torture:
In addition, the panel did not make any reference in its reasons to the medical report filed in evidence. That report is dated July 16, 1996, and was prepared by Dr. Pierre Dongier, who examined the applicant here in Canada. The report corroborates the applicant's allegations, to a point. Dr. Dongier states that the applicant [TRANSLATION] "presents physical marks, as well as psychological symptoms, that are consistent with his description of the violence he says was done to him".
Although the panel did not have to comment on all the evidence in the record, it did, in my opinion, have to address this report and explain why it placed no weight on it. As Gibson J. stated in Atwal v. Canada (Secretary of State):
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.[3]
[8] Similarly, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration)[4] Evans J. noted the nature of this duty imposed on the tribunal: "the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts".[5]
[9] This error is serious enough to vitiate the tribunal's decision. The application for judicial review is accordingly allowed. The tribunal's decision is quashed and the matter referred back to another panel for re-hearing.
|
|
Danièle Tremblay-Lamer
JUDGE |
OTTAWA, ONTARIO
November 1, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-1483-00
STYLE OF CAUSE: RAJU SINGH SETHI
v.
MCI
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: OCTOBER 20, 2000
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: NOVEMBER 1, 2000
APPEARANCES:
KATHLEEN GAUDREAU FOR THE APPLICANT
GUY M. LAMB FOR THE RESPONDENT
SOLICITORS OF RECORD:
KATHLEEN GAUDREAU FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada