Date: 20060824
Docket: IMM-405-06
Citation:
2006 FC 1005
Ottawa,
Ontario, August 24, 2006
Present:
The Honourable Mr.
Justice Shore
BETWEEN:
NAVJOT SINGH SANDHU
HARPREET KAUR SANDHU
LUCIANA KAUR SANDHU
NICOLAS NAVKERA SINGH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
It is
generally accepted that a Board is in a better position to gauge the
credibility of an application and to draw the necessary inferences. In the
context of judicial review, credibility findings are reviewed on the patently
unreasonable standard: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732,
online: QL. Paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F‑7, as am. 2002, c. 8., provides that this Court
will only review such determinations if they are capricious, made in a perverse
manner or without regard to the evidence.
(As stated in Grewal v. Canada (Minister of Citizenship and Immigration), 2005 FC 875, [2005] F.C.J.
No. 1093 (QL), at paragraph 17.)
NATURE OF THE PROCEEDINGS
[2]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (Board)
dated December 29, 2005, according to which the applicants are not
Convention refugees or persons in need of protection within the meaning of
sections 96 and 97 of the Act.
FACTS
[3]
The
applicants, Navjot Singh Sandhu and his spouse, Harpreet Kaur Sandhu,
are citizens of India. Their children, Luciana Kaur
Sandhu and Nicolas Navkera Singh, are citizens of Argentina. They made a claim for refugee
protection alleging a well-founded fear of persecution by reason of imputed political
opinion. Ms. Sandhu and her children are basing their application on that
of Mr. Sandhu.
[4]
Mr. Sandhu
alleged that he was a Spanish professor in Ludhiana, India, from January 2000. On February 11, 2004, the police allegedly
arrested a student in his class, whose first name was Salim, who was suspected
of illegal activity. Mr. Sandhu tried to intervene, but the police allegedly
told him to shut up and then arrested him as well.
[5]
At the
police station, Mr. Sandhu alleged having been tortured, beaten and accused of
helping militants. On February 14, 2004, he was allegedly released thanks to
the intervention of his municipal councillor, on condition that he pay a bribe
and report to the police station on March 15, 2004.
[6]
On March
15, 2004, Mr. Sandhu reported to the police station, where he was allegedly questioned,
detained, beaten and tortured once again. On March 17, 2004, he was allegedly released,
thanks again to the intervention of the municipal councillor and the payment of
a bribe. The police allegedly had him sign a blank sheet, took his fingerprints
and picture and ordered him to report to the police station on April 15,
2004, with information concerning Salim and his accomplices.
[7]
After each
period of detention and torture, Mr. Sandhu was allegedly treated by a doctor
for the injuries caused.
[8]
On March 28, 2004, Mr. Sandhu and his family
allegedly hid at the home of a cousin, Yadvinder Singh, in Chandigarh. Mr. Singh allegedly took
steps to help the Sandhu family leave India.
Mr. Sandhu left India for Canada on May 21, 2004, with the help of a
human smuggler. Ms. Sandhu and their children joined him here on June 9, 2004.
IMPUGNED DECISION
[9]
The Board was
of the view that Mr. Sandhu was not credible on certain points at the heart of
his claim for refugee protection. On several occasions in his testimony, Mr. Sandhu
hesitated and was ill at ease. He changed his version of the facts and did not
answer some questions.
[10]
First of
all, since Mr. Sandhu had testified that he and his wife held a visa for
Argentina, valid until April 4, 2004, and that his children were citizens
of Argentina, they all could have taken refuge there instead of remaining in
India until after the expiry of their visa and then coming to Canada. The Board
rejected Mr. Sandhu’s explanations on this point, ruling that this
behaviour was inconsistent with that of a person who fears for his life.
[11]
Secondly,
the Board found it strange that Mr. Sandhu, who was wanted by the police,
was able to leave India without any problem, using
his own passport. In addition, when he was in hiding in Chandigarh, he paid his tax bill at Ludhiana. Ms. Sandhu’s explanations,
which were hesitant and contradictory, did not satisfy the Board, which was of
the opinion that the explanations had been made up.
[12]
The Board
also questioned why Mr. Sandhu did not claim refugee protection in England, where he had a stopover on
his trip to Canada, or in Canada immediately after his
arrival. The Board was not satisfied by Mr. Sandhu’s explanations, concluding
that his behaviour was inconsistent with that of a person who fears for his
life.
[13]
The Board
noted that Mr. Sandhu’s testimony was contradicted by the documentary evidence,
which reported the end of terrorism in Punjab. The Board rejected an affidavit,
a medical certificate and a photograph of a clinic submitted by Mr. Sandhu in
support of his testimony concerning the medical treatments he allegedly
received following two periods of detention. The Board determined that forged
documents can be easily obtained in India.
[14]
Finally,
the Board concluded that Ms. Sandhu and her children had not had any problems
in India. In addition, the children would
not be in danger if they returned to Argentina,
their country of citizenship.
ISSUE
[15]
There is
only one issue in this case:
1. Did the Board make an error
subject to judicial review in rejecting the claim for refugee protection made
by Mr. Sandhu and his family?
ANALYSIS
Legislation
[16]
Under
section 96 of the Act, a person is considered to be refugee if he or she fears
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion:
|
96 A Convention refugee is a
person who, by reason of a well-founded fear of persecution for reasons of
race, religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
|
96. A qualité de réfugié
au sens de la Convention – le réfugié – la personne qui, craignant avec
raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
|
[17]
Subsection
97(1) of the Act defines a “person in need of protection”:
|
97. (1) A person in need
of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i)
the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii)
the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii)
the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk
is not caused by the inability of that country to provide adequate health or
medical care.
|
97. (1) A qualité de
personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle,
exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i)
elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la
menace ou le risque ne résulte pas de sanctions légitimes – sauf celles
infligées au mépris des normes internationales – et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
Standard of review
[18]
In Grewal
v. Canada (Minister of Citizenship and Immigration), 2005 FC 875,
[2005] F.C.J. No. 1093 (QL), at paragraph 17, the Court ruled that
the standard of review for credibility findings is that of patent
unreasonableness:
It is generally
accepted that a Board is in a better position to gauge the credibility of an
application and to draw the necessary inferences. In the context of judicial
review, credibility findings are reviewed on the patently unreasonable
standard: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, online: QL. Paragraph 18.1(4)(d) of
the Federal Courts Act, R.S.C. 1985, c. F-7, as am. 2002, c. 8.,
provides that this Court will only review such determinations if they are
capricious, made in a perverse manner or without regard to the evidence.
(See also: Aguebor v. Canada (Minister of Citizenship and
Immigration), [1993] F.C.J. No. 732 (QL), at paragraph 4; Monteiro
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1258, [2002]
F.C.J. No. 1720 (QL), at paragraphs 13-15; Singh v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1146, [2003] F.C.J. No. 1451
(QL), at paragraphs 10-11.)
Did the Board make an error subject to
judicial review in rejecting the claim for refugee protection made by Mr.
Sandhu and his family?
[19]
The Board
was of the opinion and stated in its reasons for decision that Mr. Sandhu
was not credible on certain points at the heart of his claim for refugee
protection. In addition, the Board noted on several occasions in its reasons
for decision that Mr. Sandhu was hesitant and ill at ease, did not answer
the questions asked and changed his version of the facts.
[20]
In his
written submissions, Mr. Sandhu and his family did not contest the conclusion
reached by the Board to the effect that his testimony was not credible because
he was hesitant, avoided questions and was inconsistent in his answers.
[21]
The
Federal Court of Appeal has already decided that this Court must not intervene
in the case of such a conclusion by an administrative tribunal (Wen v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 907 (F.C.A.)
(QL)).
[22]
Mr. Sandhu
and his family claim that the Board made a fundamental error in its reasoning in
concluding that Mr. Sandhu and his family had valid visas to go to Argentina. They claimed that Ms. Sandhu
did not have a visa for Argentina.
[23]
A few
pages of Mr. Sandhu’s passport are reproduced at pages 35 to 38 of the
applicants’ record. At page 38, there is what appears to be a copy of a
visa for Argentina, valid from April 4, 2003 to April 4, 2004. No
translation of this document was provided. Mr. Sandhu and his family did
not contest the fact that he held a valid visa for Argentina during the period in question.
[24]
In support
of their allegation to the effect that Ms. Sandhu did not hold a visa for Argentina, Mr. Sandhu and his
family referred to pages 129 to 139 of the applicants’ record, which contain a
copy of Ms. Sandhu’s passport. Page 132 of the applicants’ record appears
to show that Ms. Sandhu had a visa for Argentina, issued in February 1998. However,
because there is no translation of this document on record, it is impossible to
be sure of its content. Likewise, page 131 of the applicants’ record contains
notations, including the following: “P.C.C. issued to Argentina”, a line, a stamp and other notes. These
notes indicate that Ms. Sandhu might have received another visa allowing
her to travel to Argentina.
[25]
Mr. Sandhu
and his family have the burden of proving that the Board erred in concluding
that Ms. Sandhu had a valid visa for Argentina. The evidence submitted in their
application on this point is far from conclusive.
[26]
In
addition, when Mr. Sandhu left India for Canada, he was alone. His family joined him
approximately one month later. He was therefore prepared to travel without his
wife and children. Therefore, the question arises as to why Mr. Sandhu did
not decide to leave India alone and take refuge in Argentina, where he had a valid visa.
His wife and children, who were not in danger in India, could have joined him later, as they
did when they came to Canada. Ms. Sandhu could then
have undertaken steps to obtain a visa for Argentina.
[27]
Accordingly,
even if the Board had erred in stating that Mr. Sandhu and his spouse each
held a valid visa for Argentina, the fact remains that Mr. Sandhu, who was
the only person alleging persecution in India, had decided to remain there
after he had been detained and tortured by the police on two occasions when he
had the possibility of seeking refuge in Argentina.
[28]
Considering
the preceding, the Board had good reasons to conclude that the behaviour of
Mr. Sandhu and his family was inconsistent with that of persons who fear
for their lives or safety in their country.
[29]
It seems
that mistakes were made in the Board’s decision concerning the date on which
Mr. Sandhu arrived in Canada and the time it took for him to claim refugee
protection. In fact, as the Board mentioned in its decision and according to
Mr. Sandhu’s Personal Information Form, he arrived in Canada on May 21, 2004 (and not in January 2004,
as stated further on). He claimed refugee protection on July 5, 2004,
approximately one and a half months after his arrival.
[30]
In a recent
decision, Grewal, supra, at paragraph 19, Mr. Justice Blanchard
dismissed an application for judicial review in a case in which the
administrative tribunal erred in concluding that the applicant had waited one
and a half years, instead of six months, to claim refugee protection in Canada. On the subject of the tribunal’s
error, Blanchard J. wrote the following:
The Board inquired as
to the date when the Applicant filed his claim and was informed that it was March 12, 2004. It would
appear that the Board's error is a miscalculation, as it had the information in
the Applicant's documentary evidence which it sought to confirm during the
hearing. On this point, I agree with the Respondent that the Board's error is
not determinative of the issue since the essential element retained by the
Board was the fact that the Applicant waited before claiming asylum. The Board
also rejected the Applicant's explanation of the significant time gap between
the Applicant's arrival in Canada and his claim notably, that he was unfamiliar with Canada's
immigration system and that he feared he would also be in danger in Canada. In my view,
it was open to the Board to reject the Applicant's explanation.
[31]
In similar
cases, Mr. Justice Michel Beaudry and Mr. Justice William McKeown respectively
arrived at the same conclusion to the effect that a mistake concerning the time
elapsed before claiming refugee protection is not necessarily decisive (Erulandy
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 790, [2002]
F.C.J. No. 1056 (QL), at paragraphs 26-30; De La Torre v. Canada (Minister
of Citizenship and Immigration), 2001 FCT 452, [2001] F.C.J. No. 735
(QL), at paragraphs 7-9).
[32]
In this
case, considering Mr. Sandhu’s lack of credibility and his behaviour, which was
not consistent with a genuine fear, the Board’s error was not decisive.
[33]
This Court
agrees with the respondent that the case law clearly shows that the Board may
take into consideration an applicant’s behaviour to assess his testimony and
actions. In some circumstances, an applicant’s behaviour may be sufficient in
itself to reject a claim for refugee protection. (Huerta v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 271 (F.C.A.) (QL); Ilie
v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1758
(F.C.A.) (QL), at paragraph 15; Riadinskaia c. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 30 (QL), at paragraph 7; Cheema
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 2006, [2002]
F.C.J. No. 1672 (QL), at paragraph 21; Monteiro, supra, at
paragraph 18; Fernando v. Canada (Minister of Citizenship and Immigration),
2002 FCT 993, [2002] F.C.J. No. 1325 (QL), at paragraphs 4-7; Singh, supra,
at paragraph 29; Nazir v. Canada (Minister of Citizenship and
Immigration), 2005 FC 168, [2005] F.C.J. No. 182 (QL))
Although the
members did not expressly refer to it in their decision, it is clear from the
transcript of the discussion at the hearing that they found it hard to see the
appellant's conduct as consistent and to reconcile it with the conduct of a
person who says she fears for her life and fled her country to seek protection
from the Canadian government. The delay in making a claim to refugee status is
not a decisive factor in itself. It is, however, a relevant element which the
tribunal may take into account in assessing both the statements and the actions
and deeds of a claimant.(Huerta,
supra)
[34]
It is
important to underline the facts in this case. Mr. Sandhu alleged having been
detained and tortured by the police for the second time on March 15, 2004,
and released on March 17,
2004. However,
he waited approximately two months, until May 21, 2004, to leave his
country.
[35]
Mr. Sandhu
had a valid visa for Argentina until April 4, 2004. However, instead of taking
advantage of the opportunity to take refuge there, he preferred to wait several
weeks to come to Canada. When Mr. Sandhu came to
Canada, he waited one and a half
months before claiming refugee protection. Even after his spouse and children
arrived on June 9, 2004, they waited one month before claiming refugee
protection in Canada.
[36]
The Board
could most certainly decide that the time elapsed before claiming refugee
protection in Canada and the failure to go to Argentina were obviously inconsistent
with the conduct of a person who fears for his life or safety in his own
country. In this case, the behaviour of Mr. Sandhu and his family was
sufficient in itself to have their claim for refugee protection rejected.
[37]
Considering
Mr. Sandhu’s hesitant and evasive testimony and the lack of a subjective fear on
the part of Mr. Sandhu and his family, the Court agrees with the Minister
of Citizenship and Immigration that the Board did not err in concluding that
Mr. Sandhu was not credible “with regard to vital
elements of his refugee protection claim”.
CONCLUSION
[38]
In conclusion,
Mr. Sandhu and his family did not show that the conclusions reached by the
Board concerning their credibility and lack of subjective fear were patently
unreasonable. It is therefore not necessary to answer Mr. Sandhu’s other
arguments concerning the documentary evidence about their subjective fear.
[39]
It is also
clear that the Board did not err in concluding that Ms. Sandhu and her
children are not in danger if they return to India. On this point, the Board underlined the
fact that they never had any problems in India or in Argentina.
[40]
Because
the Board’s decision is not patently unreasonable, the intervention of this
Court is not warranted. Accordingly, the application for judicial review is
dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be
certified. The parties did not suggest any question to be certified, and the
Court is of the opinion this case rests on its own facts.
“Michel M.J. Shore”
Certified
true translation
Michael
Palles
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