Date: 20060317
Docket: IMM-4446-05
Citation: 2006 FC 357
Ottawa,
Ontario, March 17, 2006
Present:
The Honourable Mr. Justice Simon Noël
BETWEEN:
JASWANT
SINGH
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision by the
Refugee Protection Division (RPD) dated June 30, 2005. In this decision, the
RPD denied the applicant’s refugee claim, determining that he is not a refugee
or a person in need of protection within the meaning of sections 96
and 97 of the IRPA.
ISSUES
[2]
The only
issue is the following:
-
Did the
RPD make factual, procedural or evidentiary errors?
CONCLUSION
[3]
For the
following reasons, the application for judicial review is allowed and the
matter is referred to the RPD for redetermination by a differently constituted
panel. No question is certified.
FACTS
[4]
The
applicant is an Indian citizen, a member of the Shiromany Akali Dal Mann party.
He claims to have been arrested, detained and tortured by the police at the
beginning of 2004, as the police suspected that he had assisted terrorists. He
says that he was released after paying a bribe and through the intervention of
influential people from his village.
[5]
In August
2004, terrorists allegedly raided the farm belonging to the applicant’s aunt,
while he was visiting her. The terrorists then threatened the applicant and
members of his family. The terrorists then fled by car, but were intercepted
almost immediately by the police. The applicant and two of his cousins, Fauja
Singh and Swaran Singh, had been arrested by the police, detained and tortured,
until a bribe was paid for their release. Fauja Singh allegedly died from his
wounds on August 9, 2004, after a stay at the hospital.
RPD’S DECISION
[7]
The RPD’s
decision is based on the applicant’s lack of credibility. The RPD mentions the
following factors to support this finding:
- The claimant
stated at the hearing that his father was 90 years old at the time of his
death, while the death certificate filed states that he was 80 years of age;
- The notes of the
immigration officer do not mention that the applicant’s cousin died, or that
the applicant’s father had been beaten by the police, and the claimant’s
explanations in that regard were not plausible;
- It is not credible
that the applicant’s father would have been beaten by the police, given the
physical and mental condition of people his age;
- There is a
contradiction between the immigration officer’s notes – stating that the
terrorists asked the applicant’s cousin for the keys to his car – and his
Personal Information Form (PIF) and his testimony at the hearing where, to the
contrary, he stated that the terrorists took his car at gunpoint;
- The claimant did
not file acceptable evidence of his cousin’s death, or evidence that he owned
the car stolen by the terrorists.
ANALYSIS
[8]
The
appropriate standard of review for the RPD’s findings of fact is that of patent
unreasonableness (Thavarathinam v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at paragraph
10; Aguebor v. Canada (Minister of Citizenship and Immigration), [1993]
F.C.J. No. 732 (F.C.A.), at paragraph 4).
1. The age of the applicant’s
father
[9]
The RPD
described as follows the facts relating to the age of the applicant’s father.
It writes, at page 2 of its decision:
The claimant
was asked the age of his father. He testified that his father was 90 years
old. In Exhibit P-5 (his father Budh Singh’s death certificate) it is stated
that he is 80 years of age and not 90.
[10]
In my
opinion, the RPD’s description of exhibit P-5 was incomplete. At page 93 of the
record, we remark that the age of the applicant’s father appears in two places
in the translation of the death certificate. In the column on the left, at line
5, 80 years old is indicated. In the column on the right, it appears that 80
years old is also indicated, but that information has been corrected by hand in
such a way that the age reads 88. At line 5 of the original, we can see the
number 88. The fact that the RPD only took into account a part of the
document amounts to a patently unreasonable error. The RPD also made a patently
unreasonable error in writing that the applicant’s credibility is affected by
the fact that it is not plausible that the applicant’s father could have been
beaten by the local police, on the pretext that he is old. The lack of
justification to support such a finding of fact precludes me from agreeing with
the respondent.
[11]
Furthermore,
the RPD’s description of the applicant’s testimony is also wrong. The applicant
stated at the hearing that his father was “almost 90”, and not that he was 90.
[12]
To counter
this argument by the applicant, the respondent insisted on the fact that the
date of death of the applicant’s father is not the same on all of the
documents. In fact, we note that on page 11 of the record (applicant’s
PIF), the applicant states that his father died on September 8, 2004.
The death certificate (page 93, tribunal record) bears the same date.
However, at page 74 of the record, the applicant indicated, rather, the
date of March 16, 2003.
[13]
This Court
cannot rewrite the RPD’s decision and correct its shortcomings. The fact that
the Court could identify additional reasons undermining the applicant’s
credibility does not diminish the fact that the RPD’s reasons are wrong in the
circumstances of this case.
2.
The
ownership of the vehicle
[14]
The
applicant claims that the RPD erred in writing that he had not adduced
acceptable evidence of his ownership of the car stolen by the terrorists.
[15]
Even if
the RPD’s decision does not contain any explanation to help understand why the
documents at pages 87, 88 and 89 (documents regarding the vehicle) of the RPD’s
record were not considered acceptable, I do not think that this amounts to a
patently unreasonable error. In fact, this document can only at best establish
that the applicant once owned a vehicle, and not that it was the vehicle stolen
by the terrorists. The RPD was not obliged to give more detailed explanations
in that context.
3. The
contradictions between the immigration officer’s notes, the PIF and the
testimony
[16]
With
respect to the notes of the immigration officer (see in particular pages 63 and
64 of the RPD’s record), they are very cursory. The officer’s questions are
short and suggest concise answers.
[17]
The death
of the applicant’s father and that of his cousin are significant elements of
the applicant’s story. There is no doubt that omissions regarding essential
elements of the claim may be considered by the RPD, especially when a question
had been asked regarding the element that was omitted (see, inter alia, Eustace
v. Canada (Minister of Citizenship and Immigration), 2005 FC 553,
[2005] F.C.J. No. 1929; Chen v. Canada (Minister of Citizenship and
Immigration), 2005 FC 767, [2005] F.C.J. No. 959, at paragraph 23).
This is even more the case when there is a contradiction between the officer’s
notes, the story in the PIF and the testimony at the hearing. In this case, it
was an omission bearing on an important element of the claim, even if it was
not central.
[18]
Considering
the circumstances, the reason relied on by the RPD – namely the applicant’s
failure to mention the death of his father and his cousin – is not very
convincing. The questions asked by the immigration officer were brief and
direct, and the applicant did not have the opportunity to elaborate on all of
the events that he claims to have experienced in his country. None of the
immigration officer’s questions, as asked, allowed the applicant to relate that
incident. Only the death of his cousin Fauja Singh could perhaps have been mentioned,
but the questions seem to suggest to the applicant that his answers be very
brief.
[19]
The RPD
alluded in its decision to a contradiction between the applicant’s PIF and the
immigration officer’s notes. At page 3 of the decision, the RPD writes:
In his
narrative and in his testimony, the claimant declared that in the August 4th,
2004, incident, the militants took his car at gunpoint. On page 2 of his
Immigration Notes, exhibit A-2, page 3, “the militants asked my cousin for the
keys of his car”.
Confronted,
the claimant testified that he did not say that because his cousin did not have
a car.
[20]
Here
again, I do not think that it is a very persuasive element, even though the
contradiction in the evidence is real. In the transcript (pages 238 to 241 of
the RPD’s record), the applicant is asked several questions, in such a way that
we can infer that on August 19, 2004, when the terrorists showed up at the
farm, they asked the applicant’s cousin for the keys to the car. The cousin
then gestured to the applicant to give the keys to the terrorists. The
applicant’s cousin allegedly acted as a physical intermediary between the
applicant and the terrorists: the applicant gave the keys to his cousin, who
gave them to the terrorists. In the immigration officer’s notes, we read that “the militants asked my cousin
for the keys of his car”.
[21]
In my
opinion, it is a very minor contradiction that may be understood on reading the
applicant’s testimony. Such a contradiction does not undermine the applicant’s
credibility. The RPD should not be overly zealous in its pursuit to find
inconsistencies where there are none (See, inter alia, R.K.L. v.
Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162,
2003 FCT 116).
[22]
For these
reasons, it is my opinion that the RPD’s decision regarding the applicant’s
credibility is based on certain errors of fact and on contradictions that are
so minor that the decision cannot be upheld. The decision regarding the
applicant’s credibility is patently unreasonable. Perhaps the RPD had valid
reasons to find that the applicant was not credible, but these reasons are not
included in its decision. The matter must therefore be referred back to the RPD
to be reviewed by a differently constituted panel.
[23]
The
parties were invited to propose questions for certification. The applicant
asked the following question:
[TRANSLATION]
Is the panel
entitled to base one or several of its negative credibility findings on the
absence of events or facts that had not been recorded by the immigration
officer in her interview notes when those events or facts are recorded in the
applicant’s Personal Information Form (PIF) if the applicant was not questioned
specifically on those events and on those facts and when he was not given the
right to counsel or sent any information to the effect that he could later be
impeached in the context of his claim before the Refugee Protection Division
(RPD) for not having revealed all of the facts or events that were known to his
at the time of his examination before the immigration officer?
[24]
To
determine whether a question must be certified, we must refer to the tests
established in Canada (Minister of Citizenship and Immigration) v.
Liyanagamage, [1994] F.C.J. No. 1637, at paragraph 4. The question must
transcend the interests of the parties to the dispute, be of broad significance
and be determinative of the appeal.
[25]
I do not
think that the question must be certified since it is a question of fact and
not of law. The assessment of the facts is a matter for the RPD, and it is the
RPD’s responsibility to decide, in each case, whether or not it must determine
that the claimant’s failure to mention a central element of the claim to the
immigration officer is an element affecting his credibility. In certain cases,
a fact can be so central that the fact of failing to mention it is a factor
undermining the applicant’s credibility. In other cases, the omission would not
support a finding that the applicant is not credible. Each factual situation is
unique and the RPD’s assessment of it is subject to judicial review. The
question as formulated therefore does not have broad significance justifying
its certification since the RPD must decide credibility issues on a
case-by-case basis. Further, this question would not be determinative of the
outcome of the appeal considering the fact that other reasons justify referring
the matter back to the RPD and that the application for judicial review is
allowed.
JUDGMENT
THE COURT ORDERS THAT:
- The
application for judicial review be allowed and the matter referred before a
differently constituted panel.
“Simon
Noël”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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