Date: 20091119
Docket: IMM-1372-09
Citation: 2009 FC 1063
Ottawa, Ontario, November
19, 2009
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
KUMAR,
Shiv
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27 (Act) of a decision by the Refugee Protection Division (RPD) of the Immigration
and Refugee Board dated February 19, 2009. The panel denied the applicant’s
claim for protection due to the applicant’s lack of credibility.
[2]
Mr.
Shiv Kumar (the applicant) is a citizen of India and comes
from the state of Hariana. He left India for Canada on November
1, 2006, and claimed refugee protection on November 6, 2006. He made
his claim on the basis of section 96 and paragraph 97(1)(b) of the Act.
[3]
The
following facts were not accepted by the panel. The applicant claimed that he
operated a pesticide company, Shri Bala Ji Trading Co., in India. On August
12, 2005, one of his employees, a person named Makbool, purportedly went to the
neighbouring village on the applicant’s scooter to make a delivery. That
evening, the police apparently came to the applicant’s shop to question him
about his scooter. His employee had allegedly fled during a police check,
abandoning the scooter on site along with some bullets. The police purportedly
accused the applicant of helping militants transport their merchandise. His
shop was apparently searched and the applicant was arrested. His family
allegedly got him released after paying a bribe. The applicant indicated that
he was continually harassed by the police following this event. He was
purportedly arrested again on February 19, 2006, and questioned on his connection
to militants. Once again, his family apparently got him released after paying a
bribe. He testified that he was tortured during the two arrests. Fearing for
his safety, he purportedly went to New Delhi. He apparently then
requested the services of a smuggler, who allegedly helped him leave India on November
1, 2006.
[4]
The
RPD found that the applicant had failed to discharge his burden of
demonstrating a “well-founded fear of persecution” in the event of returning to
India. The panel
also determined that the applicant had not demonstrated, on a balance of
probabilities, that he was a “person in need of protection”. The RPD found the
applicant’s allegations with respect to the crucial elements of his refugee
claim to be not credible. Instead, the panel found that the applicant had
invented his account entirely and fabricated all of the documents in order to
support his refugee claim. Consequently, the panel did not attach any probative
value to these documents.
[5]
Where the question is one of fact established
pursuant to the exercise of discretion, the standard of review is
reasonableness (Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190,
at paragraph 53). Credibility findings are generally not open to judicial
review. According to the Federal Court of Appeal in Aguebor v. Canada
(M.E.I.), 160 N.R. 315, at paragraph 4:
There is no longer any doubt
that the Refugee Division, which is a specialized tribunal, has complete
jurisdiction to determine the plausibility of testimony: who is in a better
position than the 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. . . .
[6]
The RPD determined that the applicant was not
credible because of the contradictions between the documents he produced and
his testimony.
[7]
The
panel gave the applicant until December 30, 2008, to produce documents or
evidence establishing that he was the owner of the shop, that Makbool was his
employee and that he had truly been hospitalized twice.
[8]
In
fact, the transcript of the hearing discloses numerous contradictions between
the documentary evidence submitted and the applicant’s testimony.
(1)
The employment contract
[9]
The applicant provided a document to demonstrate
the existence of an employment contract between his employee, Makbool, and his
company. Despite this, the panel did not believe that the applicant had had an
employee named Makbool. At first sight, the finding seems unreasonable, but
this impression is misleading. The panel specifically asked the applicant
whether he had made Makbool sign an employment contract and he had responded
that he had not:
Q: Did he sign any
contract with you, working contract?
A: No.
Q: Do you have anything
to prove that this person was working for you?
A: I don’t have record
of banking salary but I used to pay him salary in cash. But maybe there could
be something to prove it, that could prove it.
Q: Like what?
A: I can ask my
accountant that I used to pay him this much salary, I didn’t issue him a cheque
or anything but my accountant used to pay him cash.
Q: But what would the
accountant be able to give you?
A: I would not be able
to prove it in front of you, give you a full proof because in India so
many times we hire people like that.
[10]
Therefore, the panel gave the applicant
time to produce, in particular, an employment document for Makbool. Despite his
testimony, [translation] “to the panel’s
great surprise” the applicant produced the original employment contract between
Makbool and his company. The applicant thus contradicted his own testimony. The
panel was therefore justified in finding that his credibility was affected by
this. In this context, the panel’s inference that the applicant had not had an
employee named Makbool is reasonable.
(2) The
company
[11]
The applicant alleged that he owned a
pesticide company. The document initially filed did not prove his connection to
the company Shri Bala Ji Trading Co. Confronted with this fact, the applicant
indicated that he could obtain his company’s registry, on which his name would
appear. In fact, the RPD specifically asked the applicant whether he could
obtain a document demonstrating that he was the owner of the company and he
responded that he could:
Q: Because reading this
document, sir, what I understand from this document is that the company Sri
Bala G. Trading Company exists, that it has a valid licence for the period
between the 21st of February 2005 until the 31st of
December 2006. But it does not at all, it is not at all related to you. What
can you add, sir, to show to the Tribunal that you possess this company?
A: At the moment I
don’t have anything.
Q: Can you obtain something?
A: Yes, absolutely.
Q: What can you obtain?
A: I can ask to, for
the registry of the shop to be sent to me.
Q: Do you think your
name will be written on this registry?
A: Yes.
[12]
The applicant then filed a letter from
someone acknowledging that the applicant is truly the owner of Shri Bala Ji
Trading Co. He never mentioned this document when he was asked whether he could
obtain a document proving that he was the owner of his company. Furthermore,
the panel doubted whether the letter is genuine. This document’s letterhead
does not contain an address or any other contact information by which its
authenticity could be verified. Under the circumstances, the panel was entitled
to not attach
probative value to this document. It was also entitled
to draw a negative inference from the unexplained absence of a specific
document that the applicant said he would be able to obtain. Moreover, the
panel considered documentary evidence indicating that false documents circulate
freely in India.
(3) The
visa file
[13]
The panel questioned the applicant on the
visa file produced. It appears that a letter from the company S.K. Plastic
Industries was filed in support of the visa application. At the hearing, the
applicant insisted that he did not know this company and that he had never
signed this letter. The panel noted that the applicant’s signature at page 13
of his Personal Information Form seems identical in every respect to the
signature found in the letter. Under these circumstances, the panel was
entitled to find the applicant’s explanation suspicious.
[14]
Given all of these contradictions, I am of
the opinion that the panel was reasonably entitled to make the finding it did.
Consequently, the application for judicial review is dismissed.
JUDGMENT
The application
for judicial review of the decision dated February 19, 2009, by the Refugee Protection Division of the Immigration
and Refugee Board is dismissed.
“Yvon Pinard”
Certified
true translation
Janine
Anderson, Translator
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