Date: 20060613
Docket: IMM-7334-05
Citation: 2006 FC 743
OTTAWA, Ontario, June 13, 2006
Present: The Honourable Mr. Justice Teitelbaum
BETWEEN:
NIRMAL SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review against a decision by the Refugee Protection Division (RPD), dated November 16, 2005, that the applicant (Mr. Nirmal Singh) is not a Convention refugee under section 96 of the Immigration and Refugee Protection Act (Act), or a person in need of protection under section 97 of that Act.
[2] With the exception of the applicant's memorandum and supplemental memorandum, the applicant's record is in English.
[3] The refuge claim is in English. The hearing before the RPD was in English, the submissions following the hearing are in English, the RPD's decision is in English.
[4] However, the applicant requested a hearing before this Court in French. Therefore, the reasons for order and order will be written in French.
[5] The applicant was born on April 25, 1963, in the city of Karnal in India and is a baptized Sikh.
[6] He was a farmer before he became a priest of the Sikh religion.
[7] The applicant submits that the police department of the city of Haryana and the city of Punjab had harassed him. Police questioned him regarding the operations of Sikh militants in the two cities.
[8] The applicant, his brother and three other people had been arrested for no reason on April 10, 1988.
[9] The police alleged that the applicant was involved in some murders and that he was associated with Daya Singh.
[10] The applicant and his brother were illegally detained for three years, i.e. until March 14, 1991.
[11] During his detention, that applicant submits that he had been beaten regularly and, because he was afraid, he admitted under duress that he was associated with Daya Singh.
[12] The applicant was subsequently arrested and detained on September 14, 1995, in the city of Patiala, the city where he preached his religion.
[13] The applicant was questioned at the police station regarding Paramjit Singh (Pinka). According to the police, he had been involved in the assassination of Beant Singh, the Chief Minister of Punjab.
[14] The police wanted to confirm the relationship between the applicant and Paramjit Singh (Pinka). The applicant was accused of having harboured Paramjit Singh (Pinka).
[15] The applicant alleges that he was tortured during his detention.
[16] The applicant was released on bail on September 30, 1995. He was acquitted on March 19, 1997. Unfortunately, he submits that the police continued to harass him.
[17] The applicant was arrested at Muzaffarnagar on January 13, 2003, and was tortured for several days.
[18] The applicant resumed his profession as a religious preacher.
[19] The applicant wrote in his Personal Information Form that:
On the day of Baisakhi, I performed the duties of KATHA VACHAK. After the function, one person approached me and told he was Canadian and was very much impressed with the Katha. He wished I should visit CANADA and he would arrange invitation letter upon his return to CANADA from SATNAM EDUCATION SOCIETY.
I received the invitation letter in July and applied for VISA. Visa was not given same day, however it was granted on 16/09/2003 and I arrived in Canada on 24Sep 2003.
[Emphasis added.]
[20] The applicant filed his refugee claim in Montréal on March 18, 2005.
[21] The applicant states that the "management committee" had promised to take care of his immigration status. Obviously, that was not done.
[22] The RPD dismissed the applicant's refugee claim on the basis that he was not a credible witness.
[23] The RPD gave several reasons for its decision. The applicant:
· left India legally and after obtaining a passport
· waited two years before filing his refugee claim
· did not know basic information about his political party
· continued to be general secretary for his party when he had left his region
· was continually harassed by the police authorities when he had testified that he did not know Paramjit Singh (Pinka).
[24] In Nazaire v. MCI, 2006 FC 416, dated March 30, 2006, Blais J. reminds us that:
[22] In Bilquess v. Canada (Minister of Citizenship and Immigration) 2004 FC 157, [2004] F.C.J. No. 205, at paragraph 7, Pinard J. discusses the standard of review in relation to questions of credibility:
The PRRA officer found, like the panel that preceded her, that the applicants were not credible. The evaluation of credibility is a question of fact and this Court cannot substitute its decision for that of the PRRA officer unless the applicant can show that the decision was based on an erroneous finding of fact that she made in a perverse or capricious manner or without regard for the material before her (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). The PRRA officer has specialised knowledge and the authority to assess the evidence as long as her inferences are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and her reasons are set out in clear and unmistakable terms (Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 (F.C.A.)).
[25] The issues of credibility were assessed in accordance with the standard of patent unreasonableness because they are questions of fact.
[26] In fact, the applicant sets out seven submissions in his memorandum and in his reply memorandum.
[27] First, he submits that the RPD did not realize that the applicant's claim was a sur place claim.
[28] Second, the applicant questions the finding on political affiliations. The RPD writes that: "This places doubts on the claimant's actual political involvement."
[29] The applicant states that the party does not exist anymore, so that the applicant does not have any "actual political involvement".
[30] I believe that the applicant misunderstood the meaning of this sentence. The RPD writes that:
Moreover, the claimant alleges that he would have continued to be General Secretary of the party through to June 2003. Yet the claimant himself left his area for Muzaffarnagar sometime in early 2000. How could he continue being the General Secretary for the party? The claimant had little if any explanation. This places doubt on the claimant's actual political involvement.
(Page 4 of the decision, page 7 of the Tribunal Record.)
[31] I am persuaded that the RPD used the word "actual" in the context of political affiliations at the time that the party existed.
[32] Third, the RPD erred when it doubted the invitation to the applicant to work in Canada in the Sikh community.
[33] Forth, it is [TRANSLATION] "totally unreasonable" that the RPD did not believe that the applicant had been and is still targeted by the authorities in India. Further, at no time does the RPD refer to the medical evidence.
[34] Fifth, the RPD disregarded certain evidence confirming that the applicant had been "seriously harmed" and therefore erred in law.
[35] Sixth, the RPD's decision has many implausibilities in connection with the conduct of the police.
[36] Seventh, the RPD should have analyzed the risks of the applicant returning to India.
[37] The respondent filed four submissions.
[38] First, the RPD's decision is not patently unreasonable with regard to the applicant's credibility.
[39] Second, the applicant waited two years before filing his refugee claim. According to Jarada v. MCI, [2005] F.C.J. No. 506, 2005 FC 409, a decision by Mr. Justice Yves de Montigny, the RPD could determine that the applicant's delay in claiming refugee status, coupled with the fact that he did not leave his native country until several months after the alleged incident of persecution, could undermine his credibility. Further, that delay: "was inconsistent with the behaviour of a person who truly feared for his life."
[40] Third, the respondent states that the applicant is asking this Court to reassess his refugee claim.
[41] Finally, it was reasonable that the RPD did not assign any probative value to the applicant's medical certificate or affidavits because they arose from the same events deemed to not be credible.
[42] The issue is essentially: Did the RPD make a patently unreasonable error with respect to the applicant's credibility?
[43] I am persuaded that the RPD's decision is reasonable. The decision is well-reasoned.
[44] Reading the applicant's memorandum and reply memorandum , the applicant is in fact asking that this Court substitute the applicant's findings and the Court's findings for those of the RPD. I cannot do that.
[45] However, I believe that this application for judicial review can be dismissed on the grounds of delay.
[46] The applicant did not leave India as soon as possible and waited almost one and a half years before filing his refugee claim after he arrived in Canada. The RPD did not accept his explanations.
[47] At paragraphs 17-20 of his narrative, the applicant writes the following. I think it is worthwhile to reproduce the paragraphs in their entirety:
17. DELAY IN CLAIM: Upon my arrival in CANADA, I explained my problems of INDIA and requested Gurdwara Management to help me to file political asylum. I was assured, the Gurudwara would find a permanent solution to my problem and also make arrangements to immigrant my family members. I need not apply for political asylum since the management have solution. Management advised me to preach the Sikh religion voluntarily at least for 6 months.
18. While I was serving voluntarily, my father was arrested after the escape of Beant Singh's assassinators. Police inquired about my whereabouts. He was released after 3 days. I brought this to the knowledge of management committee. Except consoling nothing else was done by management committee.
19. After 6 months, I was sent to another Sikh Temple KHALSA DIWAN SOCIETY, where I preached my religion voluntarily for about one year. One time extension was applied. Whenever I asked for my immigration from management, I did not receive any satisfactory response. Police in INDIA were constantly harassed my family members.
20. Finally in March 2005, I apprised the Committee that since my arrival in Canada, my family members and parents are unnecessarily bothered to know about me because Police wanted to interrogate me about HAWARA & others & I have violated the Police orders. The committee told me at this time they were helpless, however they may sponsor me later. I felt disheartened. I was advised to go to MONTREAL. As advised, I came to MONTREAL and discussed my problems and filed refugee claim because I have a well founded persecution in INDIA especially the Police wanted to implicate me in the investigation of Burail Jail escapees. Last week Police inquired from our Sarpanch of Village DARRAR and threatened to kill me wherever I fell in their hands. My Court judgements would reveal my innocence, subjective and objective fear of returning to INDIA.
[48] The RPD decided the issue of the delay as follows at the third page of its decision:
... Yet the claimant appears to have easily obtained (September 2002) a passport to leave India. Again, despite his past, the claimant would not have decided to make use of this passport in order to leave his country. This would still be the case even after his last detention (and physical abuse) at the hands of the Indian authorities in January 2003. When questioned, the claimant had little if any explanation.
He testified that he was waiting for "an invitation". The panel does not accept this explanation as credible. Moreover when the claimant came to Canada he waited a period of slightly less than two years before making a refugee application. According to the claimant, he would have placed his faith in the religious community in British Columbia in which he was working. Yet it also appears that the claimant did not do anything on his own to claim protection- despite the fact that he alleges hearing news from home of again renewed interest in him by the authorities. All told, the panel does not believe that the claimant's overall behaviour is consistent with someone either fleeing persecution or serious harm.
[49] The case law on the issue of delay is clear. Very recently, i.e. on April 3, 2006, in Bhandal v. MCI,[2006] F.C.J. No. 527, 2006 FC 426, I decided that a delay was sufficient to dismiss an application for judicial review, relying on earlier case law. I wrote that:
29 The Respondent states that the Applicant waited 21 months before making a Refugee Claim. Case law states that a Refugee Claimant must claim Refugee Status at the earliest moment possible as an unexplained delay undermines subjective fear, Conte v. MCI, [2005] F.C.J. No. 1212, 2005 CF 963, paragraphs 3-4 and Saleem v. MCI, [2005] F.C.J. No. 1715, 2005 CF 1412, paragraphs 22-34.
30 Justice Pinard in Gamassi v. MCI, [2000] F.C.J. No. 1841, November 10, 2000, IMM-5488-99, wrote at paragraph 6 that:
| [6] The delay in claiming refugee status, which is not explained, as in this case, is an important factor in determining the lack of a subjective fear of persecution (see, for example, Ilie v. Canada (M.C.I.) (1994), 88 F.T.R. 220, at page 223). In my opinion, this factor alone was, in the circumstances, sufficient to allow the Refugee Division to reasonably infer that the applicant did not have a subjective fear of persecution in Algeria, and sufficient to result in the dismissal of his claim.
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31 As in Gamassi, supra, there are no reasonable explanations to account for the delay and this leads me to agree with the Board when it states that the Applicant does not have a well-founded fear of persecution in India.
[50] In Aslam v. Canada (MCI), [2006] F.C.J. No. 264, 2006 FC 189 (QL), Mr. Justice Michel Shore summarizes the case law on the issue of delays. Shore J. states that:
23 A failure to make a refugee claim at the first opportunity demonstrates a lack of subjective fear of persecution. (Sellathamby; Stoica; Pissareva) [See Note 4 below]
Note 4: Sellathamby v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 839 (QL), at para. 10; Stoica v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1466 (QL), at para. 8; Pissareva v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2001 (QL), at para. 27.
24 In Djouadou v. Canada (Minister of Citizenship and Immigration) [See Note 5 below], this Court ruled that the Board was entitled to take into account a delay in claiming refugee status. The Federal Court of Appeal has upheld that delay is an important factor to be considered, albeit not a determinative one. In Huerta v. Canada (Minister of Employment and Immigration) [See Note 6 below], the court rules that delay in making a claim for refugee status is not a decisive factor in itself. It is, however, a relevant element that should be taken into account in assessing the actions of the claimant.
Note 5: [1999] F.C.J. No. 1568 (QL), at para. 8.
| Note 6:
[1993] F.C.J. No. 271 (QL); (1993) 157 N.R. 225 (F.C.A.).
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25 The Board is not required to accept Mr. Aslam's explanation for the delay if it finds that the explanation is implausible on reasonable grounds. (Bogus) [See Note 7 below]
Note 7: Bogus v. Canada (Minister of Employment and Immigration), (1993) 71 F.T.R. 260, [1993] F.C.J. No. 1455 (QL), at para. 5, aff'd [1996] F.C.J. No. 1220 (QL).
26 In this case, Mr. Aslam travelled to Canada in May 2001, returned to Pakistan in June 2001 and travelled again to Canada with his family in August 2001. It would be expected that if Mr. Aslam's fear was well-founded, he would have made a claim at the first opportunity of safety on his first trip to Canada in May 2001 rather than return to the country against which he is making a claim of refugee protection. When asked the reason for the delay, he explained that he returned to see his family because they had missed him. Furthermore, even though Mr. Aslam testified that his family was in danger, he left them in Pakistan when he first travelled to Canada. The Board made a negative inference from this behaviour that goes directly to Mr. Aslam's lack of subjective fear.
27 After they arrived in Canada in August 2001, the Aslam family still did not make a claim until September 18, 2001. When asked the reason for this delay, Mr. Aslam stated he was not familiar with the process. However, he has many family members in Canada and testified that he came to Canada in May 2001 to explore the alternatives in order to stay in Canada. It was therefore reasonable for the Board to expect that in doing so he would have discussed all alternatives with his family in Canada and explored the refugee process especially since Mr. Aslam testified that they were fleeing for their lives.
28 The Board would expect that individuals who fear for their personal safety and their life would not only flee at their earliest opportunity but would seek refugee protection as soon as they are beyond the reach of their persecutors and it is reasonable to do so. Since the Aslam family did not do this it was reasonable for the Board to draw a negative inference from their actions.
[51] Essentially, the applicant is in the same boat as Mr. Aslam (except with regard to the refoulement).
[52] It is not reasonable that an applicant fearing for his life would not take any action himself to take care of his immigration status. I understand that he was relying on the "management committee". But, the applicant also stated that: "Whenever I asked for my immigration from management, I did not receive any satisfactory response."
[53] When he had not received any help from the "management committee", the applicant should have taken the initiative and inquired about his rights and obligations under the Canadian immigration system.
[54] This is all the more true because the "management committee" did not offer him any help for almost a year and a half.
[55] It is not patently unreasonable that the RPD determined that the applicant was not a credible witness.
[56] Further, the applicant waited for months before leaving India and for even more months before claming refugee status in Canada. These factors undermine his credibility and his subjective fear of persecution.
[57] There is no doubt that the RPD could have carried out a more in-depth review of the documents filed by the applicant, specifically the medical evidence.
[58] It is however settled case law that the RPD does not have the obligation to discuss each exhibit filed into evidence when it makes it decision.
[59] In this case, the RPD gave detailed reasons for each of its findings. Its reasons need not have been further elaborated.
JUDGMENT
The application for judicial review is dismissed. No question of general importance was submitted.
"Max M. Teitelbaum"
Certified true translation
Kelley A. Harvey, BCL, LLB
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