Date: 20061026
Docket: IMM-1163-06
Citation: 2006 FC 1271
Ottawa,
Ontario, October 26, 2006
Present:
The Honourable Mr. Justice Shore
BETWEEN:
RESHAM
SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
In an
application for judicial review on issues of credibility, the appropriate
standard of review is that of patent unreasonableness. The Court must show
great deference because it is the Board’s place to weigh claimants’ testimony
and assess their credibility. If the Board’s findings are reasonable, there is
no basis to intervene.
NATURE OF JUDICIAL PROCEEDING
[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 by the Refugee Protection Division of the Immigration and Refugee
Board (Board), dated February 7, 2006, that the applicant is not a “Convention
refugee” or a “person in need of protection” pursuant to sections 96 and 97 of
the Act.
FACTS
[3]
The
applicant, Resham Singh, alleged the following facts:
[4]
Mr. Singh,
40 years old, is a Jatt Sikh. He was born in Chokoran, a village located next
to the province of Punjab in India. His immediate family still lives there.
During his studies at college in Ropar in the 1980s, Mr. Singh met
individual members if the “All India Sikh Student Federation” (AISSF).
Mr. Singh was not a member and did not attend the AISSF meetings. However,
he had several discussions with members of the Federation regarding the
importance of the independence of Khalistan.
[5]
On August
5, 1989, Mr. Singh was arrested, beaten and detained by the Indian
authorities until March 1991. No charges were filed against him. The
authorities questioned him on several occasions, unsuccessfully, regarding his
connection with the AISSF.
[6]
On
November 7, 1991, following this incident, Mr. Singh, fearing for his
life, fled to Afghanistan. However, given the prevailing instability in that
country at the time, he quickly returned to India. On his return, the
authorities searched his house several times. Mr. Singh was once again
detained.
[7]
On June 1,
1992, Mr. Singh left India to live in Russia, Germany and the United
Kingdom. In the latter two countries he filed refugee claims, which were
refused. He was detained in the United Kingdom for 15 months.
[8]
On
January 5, 1996, Mr. Singh was deported from the United Kingdom and
removed to India. Shortly after his return, he was again detained and beaten by
the Punjabi authorities. On this occasion, Mr. Singh was also tortured. He
was hospitalized for the treatment of his injuries. When he was discharged from
the hospital, Mr. Singh hid from the authorities and went to live with
friends.
[9]
On August
27, 1998, Mr. Singh left India for the last time. In a six-year period, he
travelled through four countries (Russia, Greece, Italy and the Netherlands),
living and working illegally under different identities. He did not file any
refugee claims in these countries.
[10]
On
September 21, 2004, Mr. Singh left the Netherlands and arrived in Canada.
With a false German passport in hand and alleging he was a citizen of the
Netherlands, he attempted to enter the country illegally. Confronted by the
immigration officer, Mr. Singh admitted his true identity and claimed
refugee status.
[11]
Mr. Singh
sought asylum based on his Sikh nationality, his membership in a particular
social group of young Sikh men and perceived political opinion. He said that he
feared the Indian authorities who suspected that he was a Sikh militant and who
tortured him for that reason.
IMPUGNED DECISION
[12]
The Board
determined that Mr. Singh was not a “Convention refugee” or a “person in
need of protection” under sections 96 and 97 of the Act, after finding that his
testimony was not credible. This finding was based on many inconsistencies in
Mr. Singh’s testimony as well as in his conduct before his arrival in
Canada.
ISSUE
[13]
Did the
Board make a patently unreasonable error in deciding that Mr. Singh was
not credible?
STANDARD OF REVIEW
[14]
The
assessment of witnesses’ credibility and weighing the evidence falls under the
Board’s jurisdiction. The Board has a well established expertise in deciding
questions of fact and, specifically, in assessing the credibility of refugee
claimants as well as their subjective fear of persecution: Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J.
No. 1425 (QL), at paragraph 14.
[15]
In the
context of an application for judicial review bearing on credibility issues,
the standard of review that should be applied is that of patent
unreasonableness. The Court must show great deference since it is the Board’s
place to weigh the testimony of claimants and to assess their credibility. If
the Board’s findings are reasonable, there is no basis to intervene. However,
the Board’s decision must be supported by the evidence; it cannot be made
arbitrarily while relying on erroneous findings of fact or disregarding
evidence filed: Mugesera v. Canada (Minister of Citizenship and Immigration),
[2005] 2 S.C.R. 100, [2005] S.C.J. No. 39 (QL), at paragraph 38;
Aguebor v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 732 (QL), at paragraph 4.
ANALYSIS
1. Inconsistencies
and significant implausibilities in Mr. Singh’s testimony
[16]
Mr. Singh
argued that the Board’s findings of fact were erratic or unsupported by the
evidence. In his opinion, the Board erred on four points:
(1) The Panel
mistakenly believed that the applicant returned to his village after being
deported from the United Kingdom in January 1996 and did not ask him any
questions about his place of residence before he was again arrested by the
Indian authorities in July 1996;
(2) The Panel
did not question Mr. Singh about how he financed his trip to Canada;
(3) The Panel
did not question Mr. Singh about how he obtained his Indian passport in
the Netherlands;
(4) The panel
erred in examining Mr. Singh’s previous conduct (the fact that after 1998 he
passed through various countries all signatories to the Convention, without
however claiming refugee status); and the fact that he attempted to conceal his
identity when he arrived in Canada to support its negative credibility finding.
After reviewing the
documentary evidence and the transcript, the Court is of the opinion that the
Board reasonably relied on the evidence. The Board properly supported its
decision by giving detailed explanations and by addressing the crux of the
applicant’s claim.
[17]
Contrary
to the applicant’s allegations, the Board questioned Mr. Singh about his
detention in the United Kingdom (pages 28-30 of the hearing transcript); about
his arrest of July 7, 1996, when he returned to India (page 31 of the hearing
transcript); about his place of residence when he returned to India (page 31 of
the hearing transcript); about the torture that he allegedly suffered at the
hands of the Indian authorities; as well as about where he hid after this
incident between 1996 and 1998 (pages 32-37 of the hearing transcript). On
this last point, this is what was said:
Q. So
now for the following two years you say you lived underground. What does that
mean?
A. Then
my (sic) that duty was to save myself from police. That’s why I remained
underground.
Q. But
I don’t know what that means, sir. When you say I lived underground means what?
A. I
mean to say that I remained in hiding. I never went to see my family or to
police.
Q. Okay,
where were you in hiding?
A. With
one of my friend.
[18]
Further,
the Board questioned Mr. Singh about the financing of his trip to Canada
(pages 35-36 of the hearing transcript); about obtaining his Indian
passport (pages 20-21, and 38-43 of the hearing transcript); and, finally,
about his entry into Canada (page 42 of the hearing transcript).
[19]
In Aguebor,
supra, the Federal Court of Appeal pointed out that powers to intervene
are limited in regard to determinations impugning the truthfulness of a story.
[20]
Indeed,
while there is a presumption to the effect that any testimony given under oath
is presumed to be true, it is the Board’s place to assess the truthfulness of a
claimant’s story and to make the proper determinations. The Board is
independent and it has the responsibility of deciding the applicant’s
credibility.
[21]
In fact,
the Board identified significant inconsistencies and implausibilities in the
applicant’s testimony. Namely, inter alia:
- The applicant, a citizen
of India, arrived in Canada with a false German passport, alleging that he
was a citizen of Holland; it was not until he was confronted by
Citizenship and Immigration Canada that he admitted his true identity and
claimed refugee status; (pages 47, 49, 108, 161-162, tribunal’s certified
record)
- The panel also noted that
the applicant, before coming to Canada, had travelled through at least
four (4) countries in the previous four (4) years; (page 146 tribunal’s
certified record)
- When confronted, the
applicant claimed that he feared being deported to India; the panel could
not give credence to this explanation, saying “this is an experienced
traveller who has been doing this regularly. The fact that the claimant
attempted to conceal his identity again when arriving in Canada affects,
in the panel’s mind, his overall credibility.” (page 6, tribunal’s
certified record)
- Indeed, although he
alleged that he had been detained for more than a year and a half
between 1989 and 1991, and that he had fled Afghanistan, claiming
that he feared for his life, the applicant nonetheless then came back to
his village; (pages 137-138 and 140 tribunal’s certified record)
- The applicant then left
his country once again to live in Russia, in Germany and then in England.
He filed refugee claims in the latter two countries, which were refused,
but he did not submit any documents indicating the reasons underlying
these refusals or the grounds on which his claim was founded; (pages
144-146, tribunal’s certified record)
- The applicant was
deported from England and removed to India; the panel indicated that the
applicant went back to his village; (pages 150-151, tribunal’s certified
record)
- The panel also noted that
the applicant had also waited two (2) years before leaving the country;
(page 166, tribunal’s certified record)
- The panel also noted that
the applicant, when he left India for the last time, did so with his own
passport; page 22 of the applicant’s record indicates that this passport
bore his own name; regardless of how the applicant obtained this document,
it is odd to say the least, under the circumstances, that the applicant,
who said that he is wanted, attempted to and could have left the country with
a passport made in his name; (pages 157-158, certified tribunal record)
- The panel took into
consideration the fact that applicant had travelled after 1998 through
different countries which were all signatories of the Convention, without
however claiming refugee status; the applicant, who is alleging at
paragraph 11 of his affidavit that he always stated that he was
afraid to be removed to India, nevertheless took a significant risk of
staying and working under false identities in four (4) different countries;
(pages 49-50, 65, 156 to 160, tribunal’s certified record)
- Finally, the panel noted
that the applicant had not submitted any medical evidence supporting his
allegation to the effect that he had been beaten during the alleged
detention in July 1996. (page 153, tribunal’s certified record)
[22]
The Board
did not err in identifying the inconsistencies, the omissions and the
implausibilities in the testimony of Mr. Singh. The Board therefore had to
dismiss the applicant’s claim. In fact, according to Mr. Justice James
Hugessen of the Federal Court of Appeal in Canada (Minister of
Employment and Immigration) v. Dan-Ash, [1988] F.C.J.
No. 571 (QL):
. . . unless
one is prepared to postulate (and accept) unlimited credulity on the part of
the Board, there must come a point at which a witness's contradictions will
move even the most generous trier of fact to reject his evidence.
[23]
Accordingly,
the Board’s determinations are not patently unreasonable.
2. The
affidavit of the Sarpanch
[24]
Mr. Singh
alleged that the Board did not assign any probative value to the Sarpanch’s
affidavit which, in his opinion confirmed the events that took place in July
1996.
[25]
On this
point, the Board stated as follows:
With respect to the claimant’s previous
refugee protection claims (England, Germany), the claimant was unable to
provide the panel with any documentation or details concerning the reasons of
his applications or the refusals. This again, in the panel’s mind, affects the
overall credibility of his allegations. Despite alleging that he was
hospitalized for what appears to be serious issues following his beating and
detention in July 1996, the claimant provides no medical evidence to support
this allegation. In fact the only documentation the claimant provided would
have been an affidavit from a local Sarpanch. In the circumstances, the panel
does not believe that the claimant has provided credible or plausible evidence
to support his claim.
[26]
The Board
need not remark on each of the documents filed if, in light of the evidence, the
logic of the decision is understood (Liman). In fact, Mr. Justice Paul
Rouleau states, in Songue v. Canada (Minister of Citizenship and
Immigration), [1996] F.C.J. No. 1020, at paragraphs 12-13:
. . . The Refugee Division need not specifically mention
that it is rejecting a piece of documentary evidence when it does not believe
the circumstances that are said to have given rise to that evidence.
Tremblay-Lamer J. has stated the following on this point:
As to the Board's credibility finding about the male applicant's political
activities in the United States, the applicants' main argument seems to be that
the Board provided no explanation for assigning "no probative value"
to a letter issued by the DUP in the U.S. regarding the male applicant's
political activities. Considering the Board's finding that it was implausible
that the male applicant would continue high profile activities against the
government of Sudan while living illegally in the U.S. and while his wife was
still in Sudan, the Board was entitled to give no weight to that
letter. The fact that he is a member of the DUP does not indicate
that he has high profile activities against the government. [see Ali v. Canada
(Minister of Citizenship and Immigration), [1996] F.C.J. No. 558,
IMM-2402-95, April 25, 1996 (F.C.T.D.), at p. 7.]
[27]
Accordingly,
the Board’s analysis was reasonable and does not justify the intervention of
this Court.
3. The
Board’s findings on the objective situation in Punjab
[28]
Mr. Singh
stated that the Board erred in basing his fear of persecution on his
association with the AISSF. Further, according to Mr. Singh, the Board
erred by failing to take into account the fact that the Indian authorities
wanted Mr. Singh for different reasons, inter alia as a result of
his various stays outside his native country.
[29]
In its
reasons, the Board noted in obiter dicta that even if the alleged facts
were true, it was not plausible that Mr. Singh would now be wanted in
Punjab. The Board based its finding on the following reasons:
Finally, there is the issue of the
objective situation. According to the claimant he would have been targeted as
an associate of individuals involved with the AISSF in the late 1980s. The
claimant would have left India and returned in 1996. According to the claimant,
he is still in some way wanted by the Indian authorities as an associate of
“militants”. Yet what is known is that the situation has dramatically changed
in the Punjab . . . Thus the panel does not believe that this
claimant is telling the truth.
[30]
This finding
regarding the lack of objective basis for the claim is not determinative since
the Board already had enough reasons for doubting Mr. Singh’s credibility.
The Board did not have to grant refugee status based solely on the documentary
evidence regarding the situation in India. However, the Board nevertheless took
the documentary evidence into consideration.
[31]
First, a
review of the hearing transcript reveals that the Board confirmed that
Mr. Singh had been arrested by the Indian authorities on January 5, 1989,
based on the report of his friend, Diljit Singh, member of the AISSF:
Q. So
why don’t we back up to determine when did you first begin to have problems in
India?
A.
First time I was arrested in, on 5th of January 1989.
-
Nineteen-eighty-nine, okay.
Q.
And why were you arrested on the 5th of January 1989, sir?
A.
Because my friend was arrest . . . Diljit Singh was arrested
in November in 88
. . .
Q.
What does that have to do with you?
A.
He was my college mate and he was a member of Sikh movement.
Q.
Member of Sikh movement. Could you be a bit more specific, sir?
A.
All India Sikh Student Federation.
-
So he was a member of the A.I.S.S.F.
. . .
Q.
All right, so let’s go back a bit if we can, and you said you weren’t part
of any particular movement but you would have from time to time discuss the
future of Khalistan, as you would describe it, with your friends. Is that
correct?
A.
Yes
-
Okay
Q.
So at some point in time a friend of yours was arrested, and then you began
to have problems with the authorities?
A.
Yes
Q.
So what problem did you have with the authorities?
A.
Because once police arrests somebody who belongs to any movement, they try
to . . . then they start looking for his friends as well so
that they can completely finish this organization.
[32]
Then the
Board took into account the fact that Mr. Singh lived in hiding
from 1996 to 1998 (pages 32-37 of the hearing transcript).
[33]
Finally,
the Board considered the following documentary evidence (UNHCR):
Controls on arrival
UNHCR
observed that judging by their general information on Indians who returned
after having their asylum applications abroad rejected returnees did not have
problems if they returned with valid travel documents and if their departure
had also taken place with valid travel documents. Those who had not complied
with Indian laws on leaving and arriving in India (note 45) might be
prosecuted. According to the Passport Act the maximum punishment was two years’
imprisonment or a fine of a maximum of 5000 rupees (approx. DKK 800)
According to the UNHCR, refused Indian
asylum seekers who returned to India with temporary travel documents could
enter without any problems as such, but if they arrived after their passport
had expired then they would be questioned about the reasons for this. These
arrivals were questioned briefly and could then leave the airport. If the fact
that the person returning had applied for asylum/refugee status abroad had not
come to the knowledge of the Indian immigration authorities then he would not
attract any particular attention other than prosecution for breaking the
passport law.
The UNHCR
also remarked that in cases where the Indian authorities became aware that the
person returning had been refused asylum, it was likely that the immigration
authorities would detain the person in question briefly for questioning and
then release him, unless he aroused their suspicion by his behaviour or was
being sought by the Indian security services. Those in the latter group would
be thoroughly questioned and if they were wanted, would be handed over to the
security force in question. According to information available to the UNHCR,
such questioning in international airports had not led to the use of violence (
. . . )
However, it
would not be seen as an offence to have sought asylum in another country unless
the person in question had connections with a terrorist group or a separatist
movement and could be connected with activities which might damage India’s
sovereignty, integrity or security, or activities which might have a harmful
effect on India’s relations with other countries.
[34]
The Board
could not read this evidence in the abstract without taking into account
Mr. Singh’s testimony. Mr. Singh’s lack of credibility was determinative
in this case.
[35]
In the
context where we cannot believe Mr. Singh’s allegations, we cannot find
that Mr. Singh faces a risk if he is removed to India, in light of the
documentary evidence alone.
[36]
In Singh
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1505,
[2004] F.C.J. No. 1818 (QL), at paragraphs 8 to 10, Mr. Justice Sean
Harrington stated the following:
. . . I cannot agree. There is nothing to rebut the
presumption the Board considered and weighed all the evidence (Florea v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 598 (FCA)).
It was submitted that this case differs from the
decision of the Court of Appeal in Valentin v. Canada (Minister of
Employment and Immigration) (FCA), [1991] 3 F.C. 390. That case held that
one could not create one's own refugee claim by leaving one's country of origin
without authorization.
Valentin was recently considered in the context of section 97 of the Act by
Kelen J. in Zandi v. Canada (Minister of Employment and Immigration) 2004 FC 411 (CanLII), 2004 FC 411, [2004] F.C.J. No. 503 (QL). He
said at paragraph 10:
To paraphrase the Federal Court of Appeal in Valentin, supra,
a defector cannot gain legal status in Canada under IRPA by creating a
"need for protection" under section 97 of IRPA by freely, of their
own accord and with no reason, making themselves liable to punishment by
violating a law of general application in their home country about complying
with exit visas, i.e. returning.
I agree.
(Kaur v. Canada (Minister of Citizenship and Immigration),
2003 FC 1293, [2003] F.C.J. No. 1635 (QL); Sidhu v. Canada (Minister
of Citizenship and Immigration), 2004 FC 39, [2004] F.C.J. No. 30
(QL).)
[37]
The
intervention of this Court is therefore not justified.
CONCLUSION
[38]
For all of
these reasons, the Board did not make a patently unreasonable error in deciding
that Mr. Singh was not credible. The application for judicial review is
therefore dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial application;
2. No serious question of general importance will be
certified.
“Michel
M.J. Shore”
Certified true
translation
Kelley A. Harvey, BCL,
LLB
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