Date: 20001206
Docket: IMM-5866-99
BETWEEN:
MANINDERJIT SINGH DHINDSA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
BACKGROUND
[1] Maninderjit Singh Dhindsa (the "applicant") a young male Sikh from the Punjab in India, in this judicial review application, seeks to set aside the October 29, 1999 decision of the Refugee Division of the Immigration and Refugee Board (the "tribunal") rejecting his request for refugee status based on a well-founded fear of persecution because of political opinions imputed to him as a perceived terrorist.
[2] The applicant indicated in his personal information form ("PIF") his brother was a member of the All India Sikh Students Federation ("AISSF") an organization that seeks an independent state for the Sikh people of the Punjab. His brother was very active in the AISSF while he was a student. He spoke out often against the abuses committed by the police and eventually became President of the AISSF at his college. In 1995, his brother was apprehended by the police on several occasions, detained, questioned and released after his father paid substantial bribes.
[3] According to him, the event which generated his flight to Canada occurred on December 2, 1995 when he and his brother were returning home on their scooter after attending a rally where his brother had just given a speech. The applicant wrote in his PIF the police intercepted them and abducted his brother. The applicant returned home and told his father about it. Both of them, accompanied by members of the village council, quickly went to the police station to locate the missing brother. He said everywhere they went, they were told no one knew where the brother was.
[4] The applicant said he then went to the AISSF office where they promised to do what was needed to find the missing brother. He said the family also contacted various higher administrative authorities but to no avail. The family concluded his brother had been killed by police because no one has been able to locate him.
[5] The applicant wrote in his PIF the police began harassing and accusing him of hiding his brother. They came to his house. He wrote he believed he was being harassed because he was publically accusing the police of having killed him.
[6] On March 24, 1996, the applicant claims he was arrested in his home and taken to the police station where he was threatened because of his efforts to find his brother and inculpate the police. He claimed to have been badly beaten and his photograph and fingerprints taken. He was released three days later when his father paid a bribe of 35,000 rupees. After his release, he complained to the senior police superintendent but he never got back to him.
[7] He claimed that on April 6, 1996, he was arrested again by the police who warned him to keep quiet or else he might suffer the same fate as his brother. He was then told to leave while he could still walk. That is when the family decided he should leave India because they were now sure the police had killed his brother.
THE TRIBUNAL'S FINDINGS
[8] The tribunal stated at the beginning of its analysis because of "the significant contradictions found in his testimony, the panel has entirely rejected it as devoid of all credibility." The tribunal then enumerated the contradictions on which it based its credibility finding.
[9] First, the applicant testified he had never joined the AISSF because he "didn't like it" preferring to play football. However, the tribunal noted, he testified a few minutes later he had helped his brother with his AISSF activities and had written between 20 to 40 speeches for his brother. The tribunal concluded on the point:
| When asked how he could have been so active in promoting an association he did not like and was not interested in, he said it was out of "respect" for his brother, who was older than him. |
| The panel gives no credence to that explanation, which it finds totally implausible as his brother was barely a year older. Moreover, the allegation that he worked for an association he did not like makes no sense. [Emphasis mine.] |
[10] Second, the tribunal said the claimant went on to testify he had never attended any of the speeches made by his brother while his brother was active in the AISSF. The Refugee Claims Officer pointed out this statement contradicted his PIF version according to which his brother's abduction by the police on December 2, 1995, had occurred while they were returning from a meeting where he had just heard his brother make a speech. The tribunal noted the applicant replied this was not the case because he had played in football match that day and afterwards had gone to fetch his brother by scooter. He blamed the interpreter responsible for the English translation of his PIF for this mistake. It concluded:
| The panel does not believe him. First of all, he had stated at the beginning of the hearing that he had had no problem understanding that interpreter and knew the contents of his PIF. Secondly, he testified that his text had been translated for him again by another interpreter a week before the hearing. The original translation must surely have been adequate, as no amendments (though two additions) were made to the text of his answer to Question 37 at the beginning of the hearing. |
| The panel concludes that the incident never took place that day. |
[11] Third, the tribunal said the applicant was then unable to tell it who he had gone to see in the AISSF to report his brother's disappearance. He did not know who he had approached (secretary, receptionist or other), and he could give no details about the visit. The conclusion reached was:
| The panel concludes that he never complained to the AISSF. |
[12] Fourth, the tribunal said the applicant described a whole series of other incidents at the hearing which he had omitted to mention in his written answer to question 37 in his PIF. The tribunal cited as an example he testified the police had taken his photograph and fingerprints when he was arrested on March 24, 1996. He also testified when he was arrested on the following April 6, the police had demanded he become an informer and supply them with information on the Sikh militants in the area, had forced him to sign a blank document and ordered him to report to the police station once a month. The tribunal found:
| When asked how he could explain the omission of such important facts, each time he blamed the interpreter responsible for translating his PIF. The panel does not believe him and shares the opinion expressed by Justice Teitelbaum in the Basseghi judgment that "all relevant and important facts should be included in the PIF". [Footnote omitted.] |
[13] Fifth, the tribunal wrote the applicant was confronted with the declarations he made to the immigration officer on his arrival in Canada and found he had then given quite a different version to the effect he was being persecuted for religious reasons and prevented from practising his faith. He also indicated on his arrival he was accused of having links with the terrorists, something he never mentioned in his PIF or testimony, and his brother was being persecuted because of his religious teachings and was a very active preacher. The tribunal's finding was:
| He was asked to explain those two very different versions. When he arrived in Canada, his fear of persecution was allegedly based on his religion. At the hearing, and in his PIF, there was not the slightest allusion to religion in connection with himself or his brother. We were by then in the domain of political opinions and activities. |
| The claimant was at a loss for words and alleged he had mentioned those other facts in his testimony, which was completely untrue as the presiding member reminded him. He had only spoken of religion when questioned about it by one of the panel members and never stated then that he was prevented from practising. |
| The panel considers that to be a major contradiction which attacks the very basis of his claim. This testimony is clearly a total invention and we give it no credence. [Emphasis added.] |
[14] Sixth, the tribunal concluded its analysis of the medical certificates and photographs filed in evidence by the applicant:
| As we give no credence to his testimony, we find that the scars and injuries described in those documents are not related either to his story or to any of the grounds in the Convention definition. [Emphasis added.] |
[15] The tribunal went on to find the applicant was not a Convention refugee and furthermore, pursuant to section 69.1(9.1) of the Immigration Act, his claim lacked any credible basis.
ANALYSIS
| (1) The applicant's arguments |
[16] Counsel for the applicant argued the tribunal made five material credibility findings which were flawed, a proposition which he based on a transcript review.
| (a) Credibility finding No. 1 -- "Did not like the AISSF" |
[17] Counsel for the applicant argues the tribunal's finding of implausibility he would write speeches for his older brother out of respect for him notwithstanding he did not like the ASSIF was an inference drawn not based on any evidence but rather based on pure speculation.
[18] The following exchange between the Refugee Claims Officer and the applicant is set out at page 402 of the certified record:
| Q. You were not a member of All India Sikh Student? |
| Q. You never thought of joining the federation? |
| A. I didn't like it. I used to play football. I wasn't interested in these things. |
| Q. You didn't like it, but you say you helped your brother. |
. . . .
| A. Can you repeat the question. |
[19] Page 411 of the certified record contains the following exchange between the Presiding Member, the Member, the Refugee Claim Officer and the applicant:
| BY PRESIDING MEMBER (to person concerned) |
| Q. There's only one thing I would like to understand, sir. You stated earlier that you didn't join the A.I.S.S.F. because you didn't like it. These were your words "I didn't like it." So, if you didn't like it, why did you write twenty (20), thirty (30) or forty (40) speeches? For someone who doesn't like it, I think it's a lot of work. Trying to understand all this. |
| A. Because my brother is older than me. I respect him and I do what he asks me. He told me to help him with the speeches and I helped him. |
| (b) Credibility finding No. 2 -- never attended any speeches made by his brother |
[20] Counsel for the applicant argues the tribunal misconstrued the evidence in making this credibility finding which is set out at page 3 of its decision:
| The claimant went on to testify that he had never attended any of the speeches made by his brother while he was active in the AISSF. The Refugee Claim Officer (RCO) pointed out that his statement contradicted his PIF version, according to which his brother's abduction by the police on December 2, 1995 had occurred while they were returning from a meeting where he had just heard his brother make a speech. |
| The claimant replied that such was not the case: he had played in a football match that day and afterwards gone to fetch his brother by scooter. He blamed the interpreter responsible for the English translation of his PIF for that mistake. |
[21] In his PIF, the applicant said this on the point:
| On December 2, 1995, my brother and I were returning home on our scooter, after attending a rally where my brother had just given a speech. [Emphasis mine.] |
[22] Pages 407, 408 and 409 of the certified record reveal the following exchange between the RCO, the applicant and the Presiding Member:
| Q. ... did you ever attend these rally [sic] and these rally [sic] at college and in the village? |
| Q. You never attended one? |
| Q. Why do you say, on December 2nd, 1995, my brother and I were returning home on our scooter after attending a rally where my brother had just given a speech? |
| A. I went to a college football match in Jullundur, the Crewkobat (phonetic) Singh Stadium. And my brother had told me that we have a rally at 2:00 o'clock and since my match was finishing at 5:00 I should pick him. Would be finished by 5:00, I should pick him up afterwards. |
| Q. So why do you say I were returning home on our scooter after attending a rally where my brother had just given a speech? That's not exactly right. |
| A. Now what I told the lawyer is that I was returning from a football match. My brother told me that around 4:30, 5:00, or 4:30 to 5:00 my rally will be finished and to pick me up from the rally, from there. |
| BY PRESIDING MEMBER (to person concerned) |
| Q. Well sir, we're trying to clarify something here. This morning you're saying that you have never attended a single rally of your brother. You have written that on that day that you had been attending a rally where your brother had been giving a speech. So what we're trying to understand is why you wrote that you had been attending a speech that day? And why this morning you're saying something different? We're trying to clarify all this. |
| A. I've never been to a rally. I just went to get my brother. |
| Q. Well, why did you write it? That's what we're trying to understand. |
| A. I don't know what is written there. Interpreter didn't tell me in Punjabi what was written in the, in that, so I'm not sure exactly. |
| - Sir, I'm sorry, at the beginning of the hearing I asked you specifically if you were aware of the contents of your Personal Information Form, if it had been translated to you, and you said yes. |
| A. But when I was told in Punjabi, that's what I understood that I went to football match and I picked my brother up afterwards. |
| - So I understand that there's nothing about football in the text. [Emphasis mine.] |
[23] On this point, counsel for the applicant says the RCO and the Presiding Member of the tribunal misconstrued the applicant's PIF which does not say he heard his brother speak at the rally. Counsel says the RCO and the Presiding Member mistakenly turned his PIF into a statement that he heard the speech.
| (c) Credibility finding No. 3 -- No knowledge of person at the AISSF |
[24] The tribunal drew the inference that the applicant never complained to the AISSF about his brother's disappearance because he was unable to tell the tribunal who he had gone to see in the AISSF to report his brother's disappearance. The tribunal said he did not know who he had approached there (a secretary, a receptionist or other person), and could give no details about the visit.
[25] Counsel for the applicant argues the tribunal's view of the matter does not mesh with the evidence because the applicant, while not knowing the name of the person at the AISSF, did know he was a member of the Federation.
[26] The following exchange took place between the Presiding Member, the applicant and the RCO found at pages 415 to 417 of the certified record:
| BY PRESIDING MEMBER (to person concerned) |
. . . .
| Q. But to whom did you talk exactly? |
| A. In the Lalpur (phonetic) college they have an office and that's where we went. |
| Q. But to whom did you talk in the office? |
| A. The person who was sitting in the office, that's who I spoke to. |
| Q. Yeah, but who was he? What was he? |
| A. That I don't know if he was a secretary or something. |
| BY THE REFUGEE CLAIM OFFICER (to person concerned) |
| Q. Or a receptionist, or ...? |
| A. He was, there's only members who sit there. |
| BY PRESIDING MEMBER (to person concerned) |
| Q. But sir, did you talk to any other member of the executive of the A.I.S.S.F.? |
| A. The person in the office I don't know what his position or rank was. I didn't ... I don't know about these things. |
| BY REFUGEE CLAIM OFFICER (to person concerned) |
| Q. Could have been the janitor you've been talking to. |
| A. No, there were three (3) people there when we went. |
| BY PRESIDING MEMBER (to person concerned) |
| Q. Do you know their name? |
| Q. You don't know to whom you have talked? |
| (d) Credibility finding No. 4 -- Omissions in the applicant's PIF |
[27] The three matters which the tribunal found were not mentioned in the applicant's PIF were the police taking a photograph of him, asking him to be an informer and to report once a month.
[28] Counsel for the applicant argues the tribunal erred in holding these omissions against him because they were entered in evidence when the applicant amended his PIF at the beginning of the hearing.
[29] At page 390 of the certified record, the following amendments are set out:
| The question 37, page 1, line 36 it says: "I was kept for three (3) days and beaten very badly." After this sentence: "They took my fingerprint and pictures and I was released only after ..." So we have to add the words "they took my fingerprint and picture," and. |
| I have the same problem on the second page, line 5: "He then told me to leave while I could still walk with the condition that I must become a police informer and provide them informations about militants in our area and their activities." |
| (e) Credibility finding No. 5 -- Grounds of persecution - religion or political opinion |
[30] As noted, the tribunal found a major contradiction between the applicant's ground of persecution at port of entry (religion) with that stated in his PIF and testimony (political opinion) and in particular his brother was being persecuted because of his religious teachings and was a very active preacher.
[31] Counsel for the applicant argues the tribunal ignored the evidence because the immigration officer's port of entry notes mention he and his brother had been frequently harassed by the police in India and he (the applicant) had been picked up twice by the police because his brother had been very active in the All India Sikh Student Federation (see pages 330 and 331 of the certified record).
[32] Counsel for the applicant concedes the applicant's PIF contains no mention of religious persecution but he identifies at page 451 of the certified record the applicant, on a question by the Member of the tribunal, indicating his brother was very active in religion and he used to give speeches in the temple about what was happening to Sikhs; he used to collect funds for the temple; do work for them; helping out.
[33] Moreover, counsel for the applicant argued the tribunal disregarded the documentary evidence on the nature of the conflict in the Punjab.
| (2) The respondent's arguments |
[34] Counsel for the respondent argued that while not a perfect decision, the evidence discloses that it was reasonably open for the tribunal to conclude in the manner it did. Moreover, the respondent argues the tribunal raised each of the inconsistencies which concerned it and gave the applicant an opportunity to explain them. It did not find the explanations convincing.
[35] The respondent argued the clash between the port of entry ground (religion) and the PIF ground (imputed political opinion) was inescapable because the tribunal had two different stories in front of it.
[36] The respondent argued the applicant had misinterpreted the tribunal's point about his PIF omissions. He argued the tribunal did not set up a contradiction between his PIF and his testimony on the issue but rather that the applicant had not identified these critical elements of his story when his PIF was first filed i.e., why make the amendments today, they asked.
[37] The respondent noted the two last changes were important because his photograph with the police is why he fears his return and his being an informer gave substance to the police believing him to be a terrorist.
[38] Counsel for the respondent also observed that what troubled the tribunal was the applicant's failure to submit any corroborating evidence in support of his claim. For example, a letter from the AISSF about his brother's involvement and disappearance could have easily been substantiated.
ANALYSIS
[39] The tribunal rejected the applicant's refugee claim because it did not accept his evidence; it found his testimony untrustworthy; it did not believe him. Moreover, the tribunal was concerned with the lack of documentary corroboration to support his oral testimony; there were no backup documents of a personal nature.
[40] The tribunal based its credibility conclusion because: (1) it found his explanation in helping his brother write speeches for the AISSF implausible; (2) it did not accept his explanation concerning an apparent contradiction between his PIF and his testimony related to attending a speech which his brother gave; it was after this speech his brother was arrested and is central to what underlies his claim, namely, fear of the Hindu police; (3) his PIF omissions; (4) his inability to detail his visit to the AISSF to complain about his brother's disappearance; and (5) the contradiction between his PIF and the Port of Entry Notes why he feared persecution, political opinion or religion.
[41] Credibility findings based on internal contradictions, inconsistencies and evasions are at the heartland of the discretion of triers of fact (Giron v. Canada (Minister of Employment and Immigration), (1992), 143 N.R. 238 (F.C.A.)) and the tribunal, a specialized one, has complete jurisdiction to determine the plausibility of testimony (Aguebor v. Ministre de l'emploi et de l'Immmigration, (1993), 160 N.R. 315 (F.C.A.)).
[42] This Court must not revisit the facts and weigh the evidence (Montreal (City) v. Canadian Union of Public Employees, Local 301, [1997] 1 S.C.R. 793 at 844).
[43] The credibility findings made by the tribunal will not be set aside by this Court unless they are clearly made without regard to the evidence Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.). What this means is that the applicant must demonstrate, on the balance of probabilities, a palpable and overriding error which affected the assessment of the facts. The standard of review on such factual findings of an administrative tribunal are an extremely deferential one, City of Montreal, supra. Put another way, it must be shown the evidence, viewed reasonably, is incapable of supporting the tribunal's finding of fact (which is the nature of credibility findings) Toronto (City) Board of Education v. Ontario Secondary School Teachers' Federation, District 15 (Toronto), [1997] 1 S.C.R. 487.
[44] I add that these judicial formulations are embodied in the statutory criteria set out in paragraph 18.1(4)(d) of the Federal Court Act which prescribes the standard of review of findings of fact.
CONCLUSION
[45] The applicant has failed to persuade me he meets the principles which enable this Court to intervene in this case in setting aside the credibility findings of the tribunal. As I see it, this is not a case where there was no evidence or a lack of evidence supporting the tribunal's credibility findings. Essentially what the applicant is asking me to do is place myself in the tribunal's shoes and reweigh the evidence. This, I am precluded from doing. The question is not what I would have decided if I had been the trier of fact but whether the evidence before the tribunal, reasonably viewed, support its findings. The evidence satisfies me there was a major contradiction between the applicant's PIF and the Port of Entry Notes made by the immigration officer on the very grounds of his fear of return to India. His PIF omissions pointing to the interest the police still had in him were substantial and, although his PIF was amended at the hearing, the transcript shows evidence of an unsatisfactory explanation. The inferences drawn by the tribunal concerning his complaint to the AISSF about his brother's disappearance, his brother's arrest in 1995 when they were returned home after the speech and his "I don't like" the AISSF are not so devoid of rationality so to warrant this Court's intervention.
DISPOSITION
[46] For all these reasons, this judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
Judge
OTTAWA, Ontario
December 6, 2000
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