Date: 20050620
Docket: IMM-8380-04
Citation: 2005 FC 875
Ottawa, Ontario, this 20th day of June 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
KULJIT SINGH GREWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] The Applicant, Kuljit Singh Grewal, seeks judicial review of the September 14, 2004, decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), wherein the Applicant was found not to be a Convention refugee or a person in need of protection.
[2] The Applicant requests that this Court quash the decision and remit the matter back to the Board for a rehearing before a differently constituted panel.
FACTUAL BACKGROUND
[3] The Applicant is an Indian citizen who claims to have been arrested twice and tortured by the police who suspected him of providing shelter and food to terrorists from Jammu and Kashmir. Once released, the Applicant fled to Canada where he arrived on September 19, 2003.
[4] The hearing took place before the Board on September 3, 2004, and the claim was dismissed on September 14, 2004.
[5] Leave to commence this judicial review application was granted on January 27, 2005.
IMPUGNED DECISION
[6] The Board had before it, in addition to the Applicant's testimony, his Personal Information Form (PIF), his visa, a medical certificate, and documents on country conditions in India.
[7] The Applicant's identity was not an issue, however, the Board found the Applicant not to be credible on various points and, consequently, dismissed his claim.
[8] The first point on which the Board impugned the Applicant's credibility was his delay in seeking protection in Canada. The Board noted that the Applicant testified that he fled India because his life was in danger but that he waited a year and half after he arrived in Canada to claim refugee status. The Board did not accept his explanation that he was not familiar with our immigration system and that he feared he would also be in danger in Canada. The Board held that this did not explain why the Applicant obtained a visa for a country where he thought he would be in danger.
[9] The Board noted that the Applicant recognized having come to Canada with a temporary work permit, which had not expired at the time when he filed his refugee claim. The evidence establishes that the Applicant worked in a restaurant when he first came to Canada. The Board found implausible the Applicant's claim that he was no longer able to work because he was still experiencing pain from the injuries he sustained after being tortured in India. The Board failed to understand why the Applicant waited so long to notice this pain while he alleged having being tortured in the worse possible way.
[10] The Board also based its decision on a third implausibility finding in respect to the Applicant's alleged links to terrorists as suspected by the Indian police. The Board noted that, according to documentary evidence, terrorists from Kashmir are particularly repressed, whether they live in Kashmir or not, due to the tensions between India and Pakistan. The Board found implausible that the police who had seized the Applicant's scooter from the terrorists, would release the Applicant after interrogation.
[11] Finally, the Board did not find plausible that the police released the Applicant, without taking away his passport, on the sole condition that he report to them on March 1, 2003.
[12] In light of the Board's finding that the Applicant lacks credibility, it held that he was not a refugee pursuant to section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") or a person in need of protection as provided by subsection 97(1) of the same Act. His claim was denied.
ISSUES
[13] In the context of this application for judicial review, I propose to deal with the following issues:
1) Whether there is an apprehension of bias on the Board's part?
2) Whether the Board erred in deciding that the Applicant lacked credibility?
3) Whether the reasons for decisions rendered by the Board are sufficient?
ANALYSIS
1) Whether there is an apprehension of bias on the Board's part?
[14] The Applicant argues that the Board member exhibited a reasonable apprehension of bias. The Applicant suggests that the Board's negative attitude is evident in the transcripts of the hearing. The Applicant argues that the Board based its conclusions on speculation and personal suppositions in respect of norms in India applicable to the Applicant's circumstances.
[15] The test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in [1978] 1 S.C.R. 369">Committee for Justice and Liberty et al v. National Energy Board et al., [1978] 1 S.C.R. 369.
The apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude".
[16] In the instant case, there was no Refugee Protection Officer present at the hearing. It is quite reasonable in such circumstances for a panel to question a claimant. I have carefully reviewed the record, notably the transcript of the hearing, and particularly the questions put to the Applicant by the Board member. I conclude from this review that the Board member's conduct does not raise a reasonable apprehension of bias. The Applicant has failed to substantiate his allegations of a reasonable apprehension of bias. Further, I note that, at no time, did the Applicant's counsel raise a concern in this respect during the hearing. It is settled law that an apprehension of bias must be raised at the earliest opportunity to enable a tribunal to address the issue and take corrective measures if necessary. Bias was not raised as an issue at the hearing, and in any event, the evidence does not support such a claim.
2) Whether the Board erred in deciding that the Applicant lacked credibility?
[17] 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.
[18] The Applicant argues that the Board's decision is flawed in that it failed to establish a proper time line of the Applicant's history in Canada. According to the Applicant, he did not wait a year and a half to claim asylum, rather he waited 6 months. The Applicant indicates that he filed his claim on March 12, 2004, as stated in his PIF. The Applicant argues that the Board's error had a direct and negative impact on the determination relation to his fear of persecution.
[19] 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.
[20] The delay in filing the claim is only one element among the other deficiencies found by the Board in the evidence which undermined the Applicant's credibility. The decision must be considered in its entirety and, in my view, as a whole, the Board's findings are supported in the evidence. In such circumstances, this Court's intervention is not warranted: Sylla v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 793, online: QL.
[21] Upon review of all of the evidence, I find that the Board made no reviewable error in its credibility findings.
3) Whether the reasons for decision rendered by the Board are sufficient?
[22] Paragraph 169(b) of the IRPA requires that reasons for decision be given. I recognize that, as the Federal Court of Appeal held in Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545, online: QL, if this obligation is to be met, the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal.
[23] The Federal Court of Appeal, in Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228, online: QL, provided, in my view, a useful enunciation of the determination this Court must make when evaluating whether reasons are sufficient.
It does not amount to an outright rejection of the appellant's evidence but it appears to cast a nebulous cloud over its reliability. In my view, the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The Board's credibility assessment quoted supra is defective because it is couched in vague and general terms. The Board concluded that the appellant's evidence lacked detail and was sometimes inconsistent. Surely particulars of the lack of detail and of the inconsistencies should have been provided. Likewise particulars of his inability to answer questions should have been made available.
[24] In the instant case, the Applicant argues that procedural fairness is lacking due to the insufficiency of reasons. The Applicant argues the reasons are insufficient because they fail to discuss the evidence and lay out the reasoning for the Board's conclusions. The Applicant contends that the Board's reasons do not enable him to verify whether the facts he submitted were actually analysed and whether the conclusions are derived from the evidence.
[25] The Respondent counters that the Board clearly identified the relevant elements that undermined the Applicant's credibility, i.e., the implausibilities and the Applicant's behaviour.
[26] The Board's reasons cannot be qualified as "generic", "vague" or "nebulous". In its reasons, the Board clearly stated that the Applicant was not credible due to the delay in claiming asylum; that his explanation with respect to his fear of being in danger in Canada was not credible and nor was his story that it took him 18 months to recognize that he could no longer work because of health concerns resulting from torture he allegedly suffered while in India. The Board further explained why it disbelieved the Applicant's story relating to his arrest and release and the fact he was left with his passport. It is also clear from the decision that the Board considered the Applicant's testimony, his PIF, a medical certificate, his visa, and documents on country conditions in India. In my view, the Board's reasons are sufficient. I find that the Board's reasons are sufficiently clear and that the Applicant was informed as to what motivated the Board's decision.
CONCLUSION
[27] For the reasons set out above, I conclude that the Board committed no reviewable error in this matter. In consequence, the Court's intervention is not warranted. The application for judicial review will be dismissed.
[28] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the IRPA and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS:
1. The application for judicial review is dismissed.
2. No serious question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8380-04
STYLE OF CAUSE: Kuljit Singh Grewal v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 27, 2005
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: June 20, 2005
APPEARANCES BY:
Ms. Andrea C. Snizynsky For the Applicant
Ms. Suzon Létourneau For the Respondent
SOLICITORS OF RECORD:
Ms. Andrea C. Snizynsky For the Applicant
Montréal, Quebec
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
Montréal, Quebec
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