Date: 20040115
Docket: IMM-3879-03
Citation: 2004 FC 62
MONTRÉAL, QUEBEC, JANUARY 15, 2004
Present: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
MASSA SINGH KHAIRA
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated May 7, 2003, that the applicant is not a Convention refugee or a "person in need of protection" under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
GENERAL BACKGROUND
[2] The applicant, Massa Singh Khaira, a Sikh from Punjab, 51 years old, is a citizen of India. He alleges that he has a well-founded fear of persecution because of his perceived political opinion. The applicant alleges that he was arrested, beaten and tortured by the Punjab authorities. According to the applicant, the authorities mistakenly believed that he had information about the militants, because his eldest son was a member of the All India Sikh Federation (AISSF).
[3] The applicant and his son were therefore arrested on three occasions: in January 2000, in December 2000 and in June 2001. While he was under arrest, the applicant says he was beaten, tortured and freed upon payment of a bribe. Moreover, the applicant claims that after the arrest in the month of June 2001, his son was never seen again.
[4] The arrest in January 2000 allegedly took place after a demonstration in which a crowd of 400 people had assembled around the police station to protest the death of Gurdev Singh.
[5] In its decision, the Board found that the applicant was not credible. The Board noted a number of contradictions, implausibilities and omissions in the applicant's testimony. Further, on the basis of the documentary evidence, the Board arrived at the conclusion that the applicant did not fit the profile of a person being targeted and that his story was implausible.
[6] In short, the Board was of the opinion that the applicant and his son did not participate in the demonstration referred to above. In addition, the Board concluded that the arrest in December 2000 never took place. With respect to the incident of June 25, 2001, the Board found that the applicant was not credible. Accordingly, the Board decided that the applicant had not discharged his burden of proof. Similarly, the Board indicated that the documentary evidence showed that the applicant would not be at risk if he were to return.
ANALYSIS
[7] In support of his application for judicial review, the applicant essentially claims that the Board erred in its findings concerning his credibility. Further, the applicant argues that the Board erred in relying on the documentary evidence.
Credibility
[8] In R. K. L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162, (F.C.T.D.) (QL), (2003), 228 F.T.R. 43, at paragraph 7, it was clearly established that the assessment of an applicant's credibility is the heartland of the Board's jurisdiction. In other words, the Court held that the Board has a well-established expertise to determine questions of fact and, more particularly, to assess the credibility and the subjective fear of persecution of a claimant (Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800, (F.C.T.D.) (QL), at paragraph 38; Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, (F.C.T.D.) (QL), (1998) 157 F.T.R. 35), at paragraph 14.
[9] Additionally, in matters of credibility and the assessment of evidence, the Court may not substitute its decision for that of the Board if the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124, (F.C.T.D.) (QL), at paragraph 9; see also the grounds for review set out in paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). In short, the applicant must show that the decision being reviewed is patently unreasonable (Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296, (F.C.T.D.) (QL), at paragraphs 13-14; Harb v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 108, (F.C.A.) (QL), at paragraph 14.
[10] With respect to the alleged arrest that took place in December 2000, the Board indicates as follows:
. . . the panel is of the opinion that it never occurred. Given the documentary evidence mentioned earlier and given the profile of the claimant, the panel finds it implausible that the police arrested a 50-year-old farmer, who testified that he had no links with terrorists, to obtain information on militants because his older son had links with terrorists due to his son's alleged involvement in the AISSF, if indeed
true, it does not establish that he had or could be perceived as having, in 2000, any contacts with terrorists.
[emphasis added]
[11] With respect to the incident of January 1, 2000, the Board drew the following conclusions:
. . . the panel does not believe that the claimant and his son were arrested for participating in that demonstration. When questioned about it, the claimant testified that he and his son were not leaders and/or organisers of the demonstration. More importantly, he could not give spontaneous details about the demonstration itself. For example, he could not indicate if the leaders were arrested or not.
[emphasis added]
[12] With respect to the assessment of the evidence relating to the incident of June 25, 2001, the Board concluded as follows:
. . . the panel gives no credibility to the claimant because he could not give spontaneous information on the steps allegedly taken by his older son in filing documents in court regarding police harassment as alleged.
[emphasis added]
[13] With respect to the alleged action before the court, the Board concluded as follows:
When further questioned as to why he [did] not adduce a document from his lawyer confirming that a case had been filed in court and/or the phone consultation with his son had occurred, the claimant explained that his brother-in-law did not want to go and see the lawyer. He further adjusted his testimony by stating that there was no court case.
[14] As stated earlier, it does not fall upon this Court to assess the credibility of the applicant unless the Board's findings were based on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before it. In such a case, the determinative nature of the error must also be established to the Court's satisfaction (Umba v. Canada (Minister of Citizenship and Immigration), 2004 FC 25). In effect, the role of this Court, in the context of an application for review, is not to reassess the evidence filed before the Board. To the contrary, if the findings on credibility are reasonably supported by the evidence, this Court must not intervene. The Board is the trier of facts and is entitled to make reasonable findings regarding the credibility of a claimant's story based on implausibilities, common sense and rationality (Ahmed v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 629 (F.C.T.D.) (QL), at paragraph 4). Bear in mind, it was the Board that heard the testimony, asked questions and noted the answers. Accordingly, the Board is in a better position than this Court to make these findings.
[15] In his memorandum, the applicant alleges that one of the credibility findings that the Board made, on the evidence regarding the incident of January 2000, is erroneous. The Board mentioned that Gurdev Singh had been killed because he had been transferred by the police and that this was inconsistent with exhibit P-7. The applicant submits that, rather, he wrote the following about the matter (Question 37, Personal Information Form (PIF)) :
In the first week of January 2000, police arrested and tortured my friend Gurdev Singh Uggi because he got transferred police inspector with the help of people. But the opposition party got cancelled his transfer and same inspector when came back tortured Gurdev Singh and he passed away in Lambra Hospital.
[emphasis added]
[16] In other words, the applicant indicates that it was not Gurdev Singh who was transferred by an inspector, but rather that it was the inspector who was transferred as a result of pressure from Gurdev Singh. It would therefore have been for this reason that, when the transfer was cancelled, the inspector had a motive to target Gurdev Singh after his arrest. Therefore, the applicant claims that there is no inconsistency in the facts.
[17] As it appears from the answer given by the applicant to question 37 of the PIF as well as in the course of the hearing, he claimed that Gurdev Singh had been arrested for having attempted to have a police officer transferred, while the newspaper article that he himself filed (exhibit P-7) - his own evidence - stated that Gurdev Singh had been arrested for selling alcohol without authorization. Whatever the case may be, the inconsistency was apparent and the applicant was confronted about this during the hearing (see the tribunal record, page 604). Obviously, the Board erred in writing that Gurdev Singh's death was caused by his transfer. However, this error is not determinative in this case. Indeed, there is still an unexplained inconsistency between the applicant's story and exhibit P-7. Similarly, it has been held that an error can be made in the reasons of a decision without, however, it affecting the merits (Robert Owusu v. Canada (Minister of Employment and Immigration et al.), [1988] F.C.J. No. 434 (F.C.A.) (QL); Lopez v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 523 (F.C.T.D.) (QL)). I also note that the Board relied on other elements to conclude that the applicant lacked credibility.
[18] With respect to the incident of June 25, 2001, the applicant submits that the Board erred or otherwise ignored the evidence. The exchange at the hearing supports the Board's finding. Moreover, the evidence shows that there was no legal action filed, contrary to what the applicant stated. On this point, one might refer to the following exchange at the hearing (see tribunal record, page 619) :
Q. But to your knowledge, is there any warrant of arrest . . . has been put against you?
A. Sir, if the case had gone to the court, yes, they would have made a warrant of arrest. But police does not allow the case to go to the court.
Q. When you mention in your Personal Information Form that (inaudible) was. . . was a court file, what court are you referring to?
A. If there was a warrant of arrest, it would have been from the district (inaudible) courts from where I came from, that's where they would have made the warrant of arrest, but since there is no court case, so there's no warrant of arrest.
Q. I'll be more precise with my question. In your Personal Information Form, you wrote that, " My son took statements from the other people, and decided to file a wwriten (sic)" we assume it's a document, "in court". What are your referring to?
A. He was taking a statement to file a case in Kapurtala (phonetic) Court, but he did not file a case.
[emphasis added]
[19] In this case, I am of the opinion that the Board's findings on credibility are not so unreasonable as to warrant the intervention of this Court (Hristov v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 32, (F.C.T.D.) (QL), at paragraph 24).
Documentary evidence
[20] The Board also relied on the documentary evidence in order to determine if the evidence filed by the applicant was trustworthy and convincing. The Board was entitled to favour the documentary evidence over the evidence submitted by the applicant. The weight given to the documentary evidence is an issue which falls squarely in the particular field of expertise of the Board. If the reasons given by the Board are rational, and if they are supported by the evidence before the Board, there is no reason to intervene (Hassan v. Canada (Minister of Citizenship and Immigration) (1992), 147 N.R. 317 (F.C.A.); Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL)).
[21] In assessing the documentary evidence, the Board concluded that the applicant's story was not credible:
After assessing the claimant's testimony and Personal Information Form (PIF) as a whole the panel is of the opinion that the documentary evidence, sent to the claimant's counsel at least 20 days prior to the hearing, does not support the claimant's allegations. Firstly, according to the documentary evidence5, the AISSF, after being banned in the mid-1980s, has lost its influence since it is no longer active: it is fragmented in different groups. Furthermore, the members have renounced to use violence. Secondly, the situation in Punjab is now in control as acts of violence are now at a low level as the militancy period ended in the mid-1990s6. Thirdly, the police's practices and behaviours consist of tracing high-profile militants that are key persons in fund-raising or building up the infrastructure of a movement for the independence of Khalistan, or suspected of a terrorist attack7. Fourthly, the pattern of disappearance appears to have come to an end according to the documentary evidence8. Lastly, the claimant did not demonstrate that he had the profile leading to police to perceive him as having contacts with militants. Confronted, the claimant provided no additional information and/or insight and reiterated the allegations contained in his PIF.
[emphasis added]
[22] In support of these remarks, the Board refers in part to the documentary evidence, such as the following reports: Report on Fact-finding Mission to Punjab, March-April 2000; India, Break the cycle of immunity and torture in Punjab; U.S. Department of State, Country Reports on Human Rights Practices, 2002, India.
[23] More particularly, with respect to the conclusions about the applicant's son and the incident of December 2000, the applicant claims that the Board erred in finding that the arrest of December 2000 was implausible and when it stated that even if the applicant's son had been a member of the AISSF, this did not prove that he could have been perceived, in 2000, as having contact with terrorists. These are pure findings of fact which are within the Board's expertise and which are supported by the documentary evidence. The applicant was also confronted about this, and the following exchange took place (see tribunal record, page 619):
Q. In your Personal Information Form, re. . . regarding the event of December, 2000, you mention that your son and yourself were questioned by the police about militants.
A. Yes. Yes, we were questioned, but we have no connection with the terrorists.
Q. If you had no connection with militants or terrorists, why would the police believe that you or your son would have information about terrorists?
A. Police can arrest anybody, police does not ask anybody.
Q. But why would they think that you would have. . . you or your son, have information about terrorists or militants?
A. This police should know. What can I say?
- Okay, no further questions, so. . .
[24] Further, the applicant submits that the Board failed to refer to exhibit P- 5, which states the following:
That Massa Singh Khaira's friend Gurdev Singh was killed due to police's beating. Massa Singh, his son and other asked for the arrest of culprits and justice. Due to this police arrested Massa Singh and his son. They were badly beaten by the police. Police also called him and his son in the police station for questioning.
. . .
That Massa Singh's son did courage to file court case against police, but this action gave further police's problem. Police arrested and tortured him and his both (sic) sons and beat his wife and daughter and Police (sic) insulted female members. Massa Singh and his younger son were released by the police, but police did not release his elder son.
[25] At the hearing, the applicant was questioned about exhibit P-5. The following exchange took place on this point (see tribunal record, pages 613-14):
Q: The Sarpanch says that your son was disappeared by the police?
A. Yes, please.
Q. And is that what you believe, too?
A. Yes, I admit that nothing is being known about 'til now.
Q. Okay. There are documents that suggest that police doesn't do this anymore in Punjab.
A. I'm telling you what I have experienced, personally.
Q. Your Sarpanch writes that your son. . . It's not very good English, but he said, "Did courage to file court case against", there's a word missing, "police (sic). But this action gave further problems." You say that there were no court case.
A. No, please.
Q. Was this Sarpanch letter translated to you?
A. This letter came from India. What is the necessity to translate it to me?
. . .
[26] In light of the preceding statements, it is clear that the Board took exhibit P-5 into consideration.
[27] Furthermore, it is well established that the Board is presumed to have considered all of the evidence (Florea, supra). Also, the mere fact that documentary evidence is not referred to in the reasons does not necessarily vitiate the decision (Canada (Minister of Employment and Immigration) v. Hundal, [1994] F.C.J. No. 356, (F.C.A.) (QL), at paragraph 6; Hassan, supra). It is well established that the reasons for the Board's decision need not be the subject of a microscopic examination, but should rather be considered as a whole (Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81). To the extent that all of the evidence allowed the Board to reasonably conclude that the applicant was not credible, this Court should not intervene (Garcia v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 635 (F.C.T.D.) (QL), at paragraph 11). Accordingly, the intervention of this Court is not warranted.
[28] In conclusion, the Board fulfilled its duties without making a reviewable error. In light of the preceding statements and of the supporting documentary evidence, I am of the opinion that the Board's findings are not patently unreasonable. Accordingly, the application for judicial review is dismissed. The counsel agree that there is no question of general importance raised in this case.
ORDER
THE COURT ORDERS that the application for judicial review of the Board's decision dated May 7, 2003, be dismissed. There is no question of general importance to be certified.
"Luc Martineau"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3879-03
STYLE OF CAUSE: MASSA SINGH KHAIRA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: JANUARY 8, 2004
DATE OF HEARING: MONTRÉAL, QUEBEC
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATE: JANUARY 15, 2004
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
MICHÈLE JOUBERT FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA
MONTRÉAL, QUEBEC
Email this Content