Docket: IMM-5092-05
Citation: 2006 FC 136
Ottawa, Ontario, February 6, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
BALDEV
SINGH
Applicant
and
MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
NOËL J.
[1]
This is an
application for judicial review brought under section 72 of the Immigration
and Refugee Protection Act, S.C., 2001, c. 27 (“IRPA”) of a decision
by Louise Robic of the Refugee Protection Division (“RPD”), dated July 11,
2005. The RPD dismissed the claim for refugee protection made by Baldev Singh
(the “applicant”) on the grounds that he was not a Convention refugee or a
person in need of protection. I must underline the fact that the parties’
memorandums were more than complete and were meticulously detailed. They were
of great use, and I thank the lawyers.
ISSUES
[2]
The issues
are as follows:
-
Did the
RPD err in law or in fact in concluding that the applicant’s narrative was not
credible?
-
Did the
RPD err in law or in fact in concluding that the applicant could claim state
protection in India?
CONCLUSION
[3]
For the
reasons that follow, I answer both questions in the negative, and the
application for judicial review is dismissed.
FACTS ALLEGED BY THE APPLICANT
[4]
The
applicant’s narrative, as alleged in his Personal Information Form (“PIF”) is
as follows:
[5]
The
applicant is a citizen of India and is of the Sikh religious denomination. In
February 2001 the applicant began to work in the trucking field. On March
20, 2003, the applicant, his father and truck driver Jaswant Singh, were coming
back from a delivery in the province of Jammu. Three terrorists from Kashmir
allegedly intercepted them and forcibly climbed onto the truck. Farther on down
the road, at a police roadblock, the terrorists fled on foot but were located
by the police. One of them was arrested, as were the applicant and his
companions. They were jailed, interrogated and accused of having co-operated
with terrorists and were then beaten to obtain confessions. Three days later, the
applicant was released because of pressure brought by the town council, the
president of the trucker’s union and other influential persons from his
village.
[6]
In May
2004, in spite of the attempts at intimidation by some members of the Congress
Party (“CP”), the applicant allegedly supported a candidate of the Shiromani
Akali Dal (SAD) party in the lead-up to elections to be held on May 10, 2004.
On the day before the elections, members of the CP allegedly mistreated the
applicant, as well as Jaswant Singh and Ajit Singh, another party member, and
the police were called. At the police station, the applicant was tortured and
then released after the elections. As a result of a new intervention by the
town council, the SAD Party and influential persons from the village, the
applicant and Ajit Singh were released on conditions. His associate, Jaswant
Singh, was kept in jail.
[7]
Because he
was worried about the disappearance of Jaswant Singh, the applicant contacted
the Kharla Mission Committee (KMC), a human rights organization. On June 5,
2004, the police showed up at the applicant’s farm to intimidate him and
encourage him not to file complaints against the police. On the same day, the
applicant fled to New Delhi, where he was harboured by his uncle. He left India
on September 3, 2004 with the help of an agent and claimed refugee status in
Canada on September 9, 2004. On August 2, 2005, the RFP rendered the decision
which is the subject of the present application for judicial review.
IMPUGNED DECISION
[8]
The decision
rendered by the RPD is based on two findings of fact. The first one is to the
effect that the applicant could have claimed state protection from India. The
second was to the effect that the applicant’s narrative was not credible.
[9]
The RPD
relied on the following facts, extracted from literature concerning the human
rights situation in India, to conclude that the applicant was in a situation
such that the Indian state could have protected him:
-
India is a
parliamentary democracy in which the institutions are able to respond to
citizens’ complaints in cases of abuse of power by the police. One such
institution is the National Human Rights Commission (“NHRC”), which has played
a greater role over the last few years;
-
The
situation in India has improved in this regard between 1984 and 1993, and the
police can no longer act with total impunity;
-
The
evidence shows that it is possible to obtain relief from the judicial system,
including in the province of Punjab;
-
Although
the police may intimidate persons who bring charges against them, the evidence
does not show that these persons are arrested, killed, or that they disappear;
-
The letter
from KMC, submitted by the applicant, confirms it is possible to bring
complaints against the police;
-
The
applicant’s evidence to the effect that the police commit abuses was dismissed
because it is in connection with the enforcement of the Prevention of Terrorism
Ordinance, which has nothing to do with the applicant’s situation.
[10]
The RPD
concluded that the applicant was not credible for the following reasons:
- His
narrative seems to contradict the documentary evidence about the human rights
situation in India;
-
It is not
plausible that the applicant was arrested twice, tortured and released without
influential persons in his community (such as the Sarpanch, the members of the
Panchayat and the president of the trucker’s union) intervening;
-
It is not
plausible that the police made arrests at the general headquarters of the SAD
one day before the elections without this being reported in the newspapers and
without complaints being filed by the party, while freedom of the press exists
in India.
[11]
The RPD
dismissed exhibits P-7, P-10, P-12, P-16 and P-16A, considering that they were
false documents.
ANALYSIS
1.
The
Standard of Review
[13]
The
standard of review applicable to a decision rendered by the RPD as to whether
an applicant may invoke state protection is that of reasonableness simpliciter
(Chaves v. Canada, 2005 FC 193, [2005] F.C.J. No. 232, at
paragraph 11).
[14]
On the
issue of the applicant’s credibility, however, the standard that applies 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 paragaph 10; Aguebor v. Canada (Minister of Citizenship
and Immigration), [1993] F.C.J. No. 732 (F.C.A.), at paragraph 4).
2. The Applicant’s
Credibility
[15]
The
applicant felt that the RPD did not give sufficient reasons for its decision
not to believe him. According to him, it was not enough to say that the
documentary evidence did not corroborate the applicant’s narrative. In
addition, the applicant alleged that the RPD should have said why some evidence
was rejected and not simply said that some documents were false because of his
lack of credibility.
[16]
Meanwhile,
the respondent was of the opinion that the RPD based its decision first and
foremost on the likelihood of the applicant being able to claim state
protection in India and on his failure to use all available recourses, and not
only on the matter of credibility. In any event, according to the respondent,
this secondary ground for the dismissal of the application would be sufficient.
The respondent added that the applicant’s fear of persecution was not
sufficiently personalized to warrant granting the claim for refugee protection.
[17]
I examined
the reasons for which the RPD concluded that the applicant was not credible.
They seem to me to be sufficient and are not patently unreasonable.
[18]
I add
that, given its decision on the matter of credibility, it was open to the RPD
to reject the evidence submitted by the applicant as being false or
self-serving documents. I note that, to arrive at such a conclusion, the RPD
relied on several references (see note 26). These seem to me to be a minimum
which, under the circumstances, are acceptable. However, the provision of more
in-depth reasons would be beneficial in this type of decision. In Hamid v.
Canada, [1995] F.C.J. No. 1293 at paragraph 20, Mr. Justice Nadon
wrote:
Once a Board,
as the present Board did, comes to the conclusion that an applicant is not
credible, in most cases, it will necessarily follow that the Board will not
give that applicant's documents much probative value, unless the applicant has
been able to prove satisfactorily that the documents in question are truly
genuine. In the present case, the Board was not satisfied with the applicant's
proof and refused to give the documents at issue any probative value. Put
another way, where the Board is of the view, like here, that the applicant is
not credible, it will not be sufficient for the applicant to file a document
and affirm that it is genuine and that the information contained therein is
true. Some form of corroboration or independent proof will be required to
"offset" the Board's negative conclusion on credibility.
This decision has been followed by the Federal Court (see Al-Shaibie
v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No.
1131, 2005 FC 887, at paragraph 21; Saha v. Canada (Minister of Citizenship
and Immigration), [2003] F.C.J. No. 1117, at paragraphs 32-33).
[19]
Although
the decision could have been more detailed, the fact remains that, overall, the
determination regarding the applicant’s credibility seems to me to be well
founded and cannot lead to the conclusion that the decision is patently
unreasonable. Therefore, there is no need to reconsider the findings of the RPD
concerning the applicant’s credibility or its rejection of the evidence he
submitted.
3. State Protection
[20]
The
applicant claimed it was not reasonable to require that he retain the services
of a lawyer to seek relief, because the police could have continued to
persecute him. The respondent, meanwhile, was of the opinion that the decision
rendered by the RPD was based on ample evidence according to which it was
possible for the applicant to claim protection from the Indian state.
[21]
The
applicant did not submit any case law in support of his point of view. In Carrillo
v. Canada, 2004 FC 944, [2004] F.C.J. No. 1152, at paragraphs 2 to 4, Madam
Justice Snider of this Court wrote the following concerning cases in which it
is alleged that the police were the agents of persecution:
In the case
at bar, the Applicant submits that there is no obligation at law for her to
demonstrate to the Board that she sought state protection, given that the
agents of persecution were state agents. I disagree.
In Ward, supra
at 724, the Supreme Court of Canada held that, when state protection might
reasonably have been forthcoming, the Board is entitled to draw an adverse
inference based on a claimant's failure to approach state authorities for
assistance:
Like
Hathaway, I prefer to formulate this aspect of the test for fear of persecution
as follows: only in situations in which state protection “might reasonably have
been forthcoming”, will the claimant's failure to approach the state protection
defeat his claim. Put another way, the claimant will not meet the definition of
“Convention refugee” where it is objectively unreasonable for the claimant not
to have sought the protection of his home authorities; otherwise, the claimant
need not literally approach the state.
In my view,
whether it is objectively unreasonable for the claimant not to have sought the
protection of home authorities invites the Board to weigh the evidence before
it and make a finding of fact. For example, although the agent of persecution
might be a stage agent, the facts of the case might suggest that purely local
or rogue elements are at work and that the state in question is democratic and
offers protection to victims similarly situated to the claimant. It might,
therefore, be objectively reasonable to expect a claimant to seek protection.
In other instances, the identity of the state agent and documentary evidence of
country conditions might mean that state protection would not be reasonably
forthcoming and, therefore, the claimant is not expected to have sought
protection. Given that the Board's analysis of Costa Rica's political and
judicial institutions was not patently unreasonable, meaning it was supported
by the evidence before the Board, the imposition of an obligation to seek
protection based on this evidence does not constitute a reviewable error, in my
opinion.
[22]
In my
opinion, Snider J. was right to rely on the approach described by the Supreme
Court of Canada in Ward v. Canada (Attorney General), [1993] 2 S.C.R.
689. The real question to be asked is whether it is reasonable to require that
the applicant seek protection from his state, in any way, even in cases in
which the police is the persecuting agent. This approach allows the assessment
of the real likelihood of a person being protected by his country of origin. In
Karoly v. Canada (Minister of Citizenship and Immigration), 2005 FC 412,
[2005] F.C.J. No. 517, at paragraph 16, Mr. Justice Blais noted that an
applicant may claim state protection without necessarily turning to the police:
In addition,
this Court has determined on numerous occasions that for the purpose of
determining the existence of state protection, one can rely on the availability
of state run or funded agencies and not only from the police (Nagy v. Canada (Minister of Citizenship
and Immigration),
2002 FCT 281, [2002] F.C.J.
No. 370; Zsuzsanna v. Canada (Minister of Citizenship
and Immigration),
2002 FCT
1206, [2002] F.C.J. No.
1642; Szucs v.Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 1614).
[23]
This does
not mean that the person seeking refugee protection is required to exercise
every possible recourse, but it would be an overstatement to say that, as soon
as a person alleges that the agent of persecution is the police, he is not
required to seek protection from his country of origin. In Chaves v. Canada
(Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No.
232, at paragraph 15, Madam Justice Tremblay-Lamer wrote:
In my view,
however, Ward, supra and Kadenko, supra,
cannot be interpreted to suggest that an individual will be required to exhaust
all avenues before the presumption of state protection can be rebutted (see Sanchez
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536
(T.D.)(QL) and Peralta v. Canada (Minister of Citizenship and Immigration)
(1996), 123 F.T.R. 153 (F.C.T.D.)). Rather, where agents of the state are
themselves the source of the persecution in question, and where the
applicant's credibility is not undermined, the applicant can successfully
rebut the presumption of state protection without exhausting every conceivable
recourse in the country. The very fact that the agents of the state are the
alleged perpetrators of persecution undercuts the apparent democratic nature of
the state's institutions, and correspondingly, the burden of proof. [Emphasis
added.]
[24] In this case, the applicant’s credibility is
undermined, and the RPD did not specify that he had to seek help from the
police. Instead, it stressed the evidence showing that India has an efficient
system of protection against police abuse, which allows citizens to exercise
effective recourses against such abuses. The RPD noted two possible
alternatives in particular, that is, recourse to the NHRC and judicial
remedies. In my opinion, it was not unreasonable to require that the applicant
avail himself of one of these recourses before seeking refuge in Canada,
considering his dubious credibility and the presumption that the Indian state
is able to protect its nationals. It was not unreasonable to also come to the
conclusion that the Indian state was capable of protecting its nationals
against police abuse, as Mr. Justice Pinard had concluded in Singh v. Canada
(Minister of Citizenship and Immigration), 2003 FTR 185, [2003] F.C.A. No.
291. The RPD also made the distinctions required and did not commit any error
of fact. Therefore, no intervention is warranted on this point.
[25] The applicant also alleged that the RPD committed
the following two errors of fact:
- The
RPD wrote that the applicant was arrested, tortured and released “in front of
prominent people”, when in reality he had made a complaint to his village
authorities;
- The
applicant stated that he had been formally charged with an offence, contrary to
what the panel wrote.
[26] On the first point, the excerpt for which the
applicant criticized the RPD was the following (page 2 of the decision):
The
documentary evidence does not allow the panel to believe that the police could
have arrested the claimant twice, tortured him and released him in front of
prominent people such as the Sarpanch, the members of the Panchayat, the
President of the truckers union and other prominent people and two high-ranking
members of the SAD party the second time, without charging him with a crime and
that he could not take action to stop such abuse.
On reading the entire decision, including the summary of
facts, it is clear that the expression “in front of” must not be taken
literally. The summary of facts is at page 1 of the decision:
The claimant
and his driver were arrested, accused of transporting terrorists, arms and
ammunitions. They were tortured. They were released with the help of members
of the village council, the President of the truckers union and respectable
people from the village.
The claimant
was arrested a second time (May 9th 2004) while working for SAD
during the elections of May 10th 2004. He was tortured. He was
released with the help of the same group of people and two high-ranking SAD
leaders.
It is clear from this excerpt that the RPD did not say it
had understood that the members of the influential group were all personally
eye witnesses to the arrests and the subsequent torture and that everything
happened in front of them without them intervening. I think that the RPD was
expressing its surprise at the applicant’s narrative, according to which the
arbitrary arrests, the unfounded charges and the police brutality did not seem
to outrage persons holding positions of authority in the village or prompt them
to intervene immediately.
[27] On the second point, I note that the RPD did not
write anywhere in its decision that the applicant was not charged with an
offence; this fact was not so significant as to be specifically mentioned.
[28] The parties were invited to submit questions for
certification. The applicant wanted the following question to be certified:
[translation]
In cases in
which an applicant alleges torture or death threats by the police, is the
applicant always obliged to adduce clear and convincing evidence to the effect
that the state will not protect him or her, and is he or she obliged to seek
protection in his or her own country, including recourse to non-police
organizations?
[29] Having considered the respondent’s submissions
against the requested certification, I note that, for a question to be
certified, the criteria outlined in Canada (Minister of Citizenship
and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, at paragraph 4,
must be followed. The question must transcend
the interests of the immediate parties to the litigation, have broad
significance or general application and be determinative of the appeal. In my
opinion, the question should not be certified, because this issue has already
been decided by the courts. In any event, if the Federal Court of Appeal
rendered a judgement on this point, it would not be determinative of the
appeal, because the applicant’s claim for refugee protection was dismissed on
credibility issues apart from the grounds relating to state protection.
[30] For these reasons, the application for judicial
review is dismissed, and no question will be certified.
ORDER
THE COURT ORDERS THAT:
- The application for
judicial review be dismissed, and no question will be certified.
“Simon
Noël”
Certified
true translation
Michael
Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5092-05
STYLE OF CAUSE: BALDEV
SINGH v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATED: January 25, 2006
REASONS FOR ORDER BY: The
Honourable Mr. Justice Simon Noël
DATED: February 6, 2006
APPEARANCES:
Michel Le Brun
|
FOR THE APPLICANT(S)
|
Mario Blanchard
|
FOR THE RESPONDENT(S)
|
SOLICITORS OF RECORD
6981
Marie-Guyart
Lasalle,
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|
FOR THE APPLICANT(S)
|
Department
of Justice Canada
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Favreau Complex
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East
Tower, 5th Floor
Montréal,
Quebec
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FOR THE RESPONDENT(S)
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