Date: 20051130
Docket: IMM-705-05
Citation: 2005 FC 1616
Ottawa, Ontario, November 30th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
PRETTI PAUL SINGH
RAMDOLARIE SINGH
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (the "Board") dated January 10, 2005 in which the applicants were found not to be Convention refugees or persons in need of protection, because they lacked credibility and a subjective fear of persecution in Guyana.
FACTS
[2] The applicants, husband and wife, are citizens of Guyana. The principal applicant, Mr. Singh (the "applicant"), claims a well-founded fear of persecution at the hands of persons associated with the ruling People's Progressive Party ("PPP") who would physically harm or kill him and his wife if they return to Guyana. The claim of the female applicant is based on Mr. Singh's claim for refugee protection.
[3] The applicant worked as a construction contractor and later started his own subcontracting business, in which he was under contract to build low-income housing and appointed to a housing committee charged with distributing those homes. Specifically, the applicant claims:
1. at a committee meeting he noticed a list of prospective, rich PPP members who were given low-income homes via the committee and rented out the homes to poor persons for pecuniary benefit;
2. in June 2003 the applicant attended the Office of the Ministry of Housing with 25 genuine low-income earners in an attempt to meet the Minister; they were pushed out of the office;
3. on June 28, 2003 the applicant was beaten by three men dressed in black; he required eight stitches in hospital;
4. in July 2003 the applicant was told he was no longer required to attend committee meetings;
5. in August 2003 the applicant was told he could no longer be employed as a subcontractor;
6. in October 2003 the applicant requested a meeting with the Minister and stated that if he could not do so, he would reveal to the press, President and Prime Minister the names of the PPP members and Ministers who were given low-income houses; and
7. thereafter, the applicant and his wife were threatened; his wife threatened to leave him if they did not flee Guyana.
[4] In October 2003, the applicants arrived in Canadaand sought refugee protection in September 2004.
THE DECISION
[5] The Board rejected the applicant's claim because he lacked credibility. The panel found the applicant's testimony to be not credible or trustworthy, for which reason he had no subjective fear of persecution. In support of its conclusions, the Board found:
1. the applicant had no documents to evidence his appointment to the housing committee;
2. the applicant had no documents to evidence the existence and operation of his company;
3. the applicant testified he did not remember when he established his company;
4. letters submitted in aid of his CVV applications in 2002 and 2003 indicate he was employed as a carpenter by a construction company during the period in 2002 when he alleged to have operated his own company, and in any event from June 1980 to August 2003;
5. the applicant's PIF does not indicate he was self-employed as a business owner, whereas his wife's PIF indicated she was self-employed as an owner of a video club;
6. the applicant's PIF indicates he was employed by the construction company between 1979 to 2003;
7. the applicant testified he had no personal knowledge which PPP members received low-income houses, only that he heard some recipients were related to government ministers; in his PIF he stated he noted the names of prominent political individuals;
8. in his CIC interview, the applicant omitted reference to the 25 individuals accompanying him to the Ministry of Housing in June 2003, whereas it was stated in his PIF; when confronted at the hearing, the applicant replied he wished to present a "short story" at his CIC interview;
9. the applicant had no credible evidence substantiating political corruption in the low-income housing distribution scheme;
10. the applicant omitted any mention of political motivation behind his alleged assault of June 2003 in his PIF; no police or hospital reports were produced;
11. the applicant's PIF listed significant events following July 2003, whereas his testimony at his CIC interview was that nothing notable occurred; and
12. the applicant received his CVVs in August 2003 and delayed leaving Guyana until October 2003; the applicant delayed seeking refugee protection in Canada until September 2004.
ISSUE
[6] The sole issue raised in this application is whether the Board drew a patently unreasonable credibility finding in respect of an issue material to the applicant's refugee claim.
ANALYSIS
[7] The applicant submits that the Board's cumulative credibility finding is patently unreasonable. Specifically, the applicant submits the Board erred by:
1. finding the applicant was an employee and not an independent contractor;
2. finding that employees could not be appointed to the housing committee, for which reason the applicant fabricated being an independent contractor;
3. finding the applicant at his hearing did not know the names of prominent PPP members who were prospective or actual recipients of low-income houses;
4. drawing an adverse inference from the applicant's failure to refer to the 25 low-income earners during his CIC interview, while referring to them in his PIF;
5. by misstating the applicant's evidence at the CIC interview in relation to being questioned by his attackers on June 28, 2003;
6. by misstating the female applicant's evidence at the CIC interview in relation to threats following June 28, 2003; and
7. giving no reasons for rejecting the applicant's explanation for his delayed refugee claim.
[8] The Board has expertise that places it in the best position to assess the nature of the risk of persecution faced by a claimant if returned to his or her country of origin. (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at para. 47, Bastarache J.) The Court will intervene where such findings are patently unreasonable (Chen v. Canada(Minister of Citizenship and Immigration),2002 FCT 1194 at paragraphs 4-5; Aguebor v. (Canada) Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)). For the Court to intervene in the Board's credibility finding, it must be shown to have fallen into reviewable error within the criteria which I articulate in Chen, supra, at paragraphs 4 and 5:
¶ 4 The Board is an expert tribunal in determining refugee claims. In 2001, the Board heard over 22,000 refugee claims, allowing 13,336 claims and denying 9,551 claims. Moreover, the Board has direct access to the testimony of the witness, and is in the best position to assess the credibility made by the Board is that of patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). In Aguebor, the Federal Court of Appeal said:
Who is in a better position than that Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
Before a credibility finding of the Board is set aside (and before leave is granted for an application with respect to a credibility finding), one of the following criteria must be established (or fairly arguable in the case of the leave application):
1. the Board did not provide valid reasons for finding that an applicant lacked credibility;
2. the inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. the decision was based on inferences that were not supported by the evidence; or
4. the credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
See Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 at para. 11 per Madam Justice Reed.
¶ 5 Credibility findings of the Board are entitled to the highest degree of curial deference, and the Court will only set aside credibility decisions, or grant leave for applications for judicial review of credibility findings, in accordance with the criteria outlined above. The court should not substitute its opinion for that of the board with respect to credibility or plausibility except in the clearest of cases. For this reason, applicants seeking to set aside credibility findings have a very heavy onus to discharge both at the stage of seeking leave, and at the hearing if leave is granted.
[9] In this case, there is evidence to support the Board's findings that:
1. the principal applicant was employed by the construction company and was not self-employed. While I might not agree with this finding, it is not patently unreasonable because of the evidence;
2. there is no documentary evidence corroborating that the applicant was appointed to the housing committee, and there would be if it were true;
3. the applicant did not clearly name prominent PPP members who were recipients of low-income houses;
4. the delay in leaving Guyana from the time the applicant's received a Canadian Visitors' Visa in August 2003, and their departure in October 2003, belied a subjective fear of persecution which normally would cause a refugee to leave at the earliest opportunity; and
5. the delay in claiming refugee status from the date of the applicants' arrival in Canada in October 2003, and the date of their refugee claim in September 2004 also belies a true subjective fear of persecution as the reason for fleeing Guyana for Canada. Rather the evidence supports a finding that the applicants came to Canada because their beloved relative was dying of cancer. The explanation for the delay shows that persecution was not the main reason they left Guyana.
[10] The Court appreciates the applicants attending the hearing. They are a lovely couple. The Court cannot set aside the Board's credibility findings in this case because the findings are not patently unreasonable.
[11] The parties did not propose a question of general importance for certification, and none is certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen"
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