Date: 20091022
Docket: IMM-135-09
Citation: 2009 FC 1070
Ottawa, Ontario, October 22, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
SURINDER
SINGH
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 (panel), dated December 17, 2008,
which found that the applicant was not a Convention refugee or a person in need
of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act (IRPA).
[2]
After
examining the record as well as the written and oral submissions made by the
parties, I find that this application must be dismissed. The following
paragraphs explain the reasons for this decision.
FACTS
[3]
The
applicant is a 31-year-old Sikh from Punjab
and an Indian citizen. Several members of his family are very involved in the
religious practices of his community.
[4]
The
applicant claims to have been arrested on four occasions, namely, on July 10,
2005, December 5, 2005, February 2, 2006 and November 6, 2006, for allegedly
having links with militant Sikh extremists and for hiding these links. He
alleges having been tortured each time and having needed medical treatment
thereafter.
[5]
On July
13, 2006, the applicant applied for a temporary resident visa, stating that he
was seeking to come to Canada for a maximum period of six
months in order to act as a religious preacher. He was issued a visa on
September 7, 2006, but since his wife was unable to accompany him, he decided
to forego the visa and not come to Canada.
[6]
Following
a new interrogation at the hands of police in November 2006, the applicant
finally decided to come to Canada. With the help of an officer,
he obtained a six-month visa allowing him to come and pursue religious
activities. He arrived here on November 17, 2006, and claimed refugee
protection on March 16, 2007.
IMPUGNED DECISION
[7]
The panel
rejected the claim for refugee protection on the grounds that the applicant
lacked credibility. The reasons given in support of this finding are as follows:
a.
In his
visa application, the applicant signed an affidavit declaring that he had never
been charged with any criminal offence nor been arrested in his country, yet
his claim for refugee protection is essentially based on his run-ins with the
Indian police.
b. The applicant claimed to have
been severely beaten in November 2006, after which he was unable to walk for
several days. He also claimed to have consulted a doctor in India about his
injuries in the days that followed, yet contended that he was unable to provide
a copy of his medical record and had not consulted a doctor in Canada in this regard since his
arrival. The applicant claimed the Indian doctor refused to provide him with
such a certificate due to having experienced problems in the past as a result
of providing such reports. He also claimed that he had
not consulted a Canadian doctor because he no longer suffered the kind of mistreatment
he had endured in his country since his arrival in Canada. The panel dismissed these explanations,
being of the opinion that, based on its experience, the kind of torture
allegedly suffered by the applicant normally leaves physical and psychological
after-effects. In short, the panel concluded that the applicant had failed to
discharge his burden of proof and had submitted no documents corroborating his
allegations of torture.
c. The panel also used the
four-month lapse between the applicant’s arrival in Canada and his claim for refugee protection to
cast doubt on his credibility. The applicant’s explanations for this lapse were
judged to be insufficient, given the absence of corroborating documents or
testimony.
ISSUES
[8]
The
applicant raised a number of arguments against the panel’s decision. These may
be summarized as follows:
i.
Did the
panel breach the principles of procedural fairness? More specifically, did the
panel err in using its own experience without giving the applicant an
opportunity to make his submissions? Were the reasons for the panel’s decision
sufficient?
ii.
Did the
panel err in its assessment of the applicant’s credibility? More specifically, did
the panel assign too much importance to the contradictions between the
affidavit submitted in support of his visa application and his testimony at the
hearing? Did the panel make an unreasonable finding regarding the delay in
claiming refugee protection?
iii.
Finally,
did the panel err by failing to consider the applicant’s membership in the
social group of baptized Sikhs?
ANALYSIS
[9]
It is well
established that the panel’s findings as to the applicant’s credibility must be
deemed to be questions of fact, and should therefore be accorded great
deference in the context of an application for judicial review. Therefore, this
Court will not intervene unless the applicant can establish that the panel’s
findings were unreasonable or capricious, made in bad faith or not supported by
the evidence. This is a heavy burden, to the extent that the applicant must
satisfy the Court that the panel’s decision does not fall within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law: Dunsmuir v. New Brunswick, 2008 SCC 9.
[10]
In matters
of procedural fairness, however, no deference is owed. The panel has no room
for error in this regard, and the Court will not hesitate to intervene if it
feels an administrative decision-maker has not complied with the requirements
of this standard, within the particular context in which a decision is made: Ha
v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49;
Chrétien v.
Canada (Commission of Inquiry into the Sponsorship Program and Advertising
Activities- Gomery Commission), 2008 FC 802; Sketchley v. Canada
(Attorney General), 2005 FCA 404.
[11]
Finally,
the issue of whether the panel erred in not assessing the risk to the applicant
given that he is a baptized Sikh has already been deemed to be a question of
law to be reviewed in accordance with the standard of correctness: see Singh
v. Minister of Citizenship and Immigration, 2007 FC 732, at para.
20. I will therefore apply the same standard in the case at bar.
a) The principles of procedural
fairness
[12]
As was
previously mentioned, the applicant criticized the panel for having relied on
its specialized knowledge to conclude that the torture he claims to have
suffered would have left after-effects, without giving him the opportunity to
respond to this opinion. It is true that under Rule 18 of the Refugee Protection
Division Rules (SOR/2002-228), the panel must notify the applicant of its
intention to use an opinion that is within its specialized knowledge and give
him the chance to make representations. In this case, no formal advance notice
was given to the applicant.
[13]
That said,
I do not feel this is a fatal error under the circumstances. It is well established
that the panel could have drawn a negative inference from the fact that the
applicant did not submit any medical evidence to corroborate his allegations of
torture: see, for example, Singh v. Canada (Minister of Citizenship and Immigration), 2007 FC 62, at para. 28; Encinas
v. Canada (Minister of Citizenship and Immigration), 2006 FC 61, at para. 21. The
transcript of the hearing also reveals that the panel questioned the applicant to
this effect and on several occasions expressed concern about the lack of any
medical assessment. Mr. Singh did attempt to explain why he had not submitted
any evidence of medical consultation, but the panel clearly regarded these
explanations as insufficient. This conclusion does not strike me as being
unreasonable, given the fact that the applicant claimed to have been unable to
walk when he was released from police custody following his final
interrogation, one week before arriving in Canada.
[14]
I
therefore feel that the applicant was not taken by surprise and had every
opportunity to address the panel’s concerns. The panel could, in its assessment
of the applicant’s credibility, dismiss his explanations and disregard the affidavit
of a person who had supposedly participated in his liberation and who
corroborated the applicant’s statements. Even if the panel had given more
precise advance notice of its intention to use its specialized knowledge, the
end result would have been the same. Even if we were to leave aside the panel’s
‘‘opinion’’ on the long-term after-effects of torture, one fact would still remain:
there is no medical evidence to support the applicant’s allegations of torture,
and the panel was entitled to draw a negative inference from that.
[15]
As for the
applicant’s claim that the grounds are incomplete and inadequate, it seems to me
that this too should be dismissed. A simple reading of the decision shows that
the panel expressed itself in clear and understandable terms, in accordance
with the standards established by the case law. As my colleague, Justice
Carolyn Layden-Stevenson (then a member of this Court) wrote in Liang v.
Canada (Minister of Citizenship and Immigration), 2003 FC 1501, at para. 42:
[i]t is important not to lose sight of
the purpose of the reasons. In Li v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 413
(T.D.), Mr. Justice Teitelbaum, citing Syed v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 283 (T.D.),
stated:
The function of written reasons is to
allow an individual adversely affected by an administrative tribunal’s decision
to know the underlying rationale for the decision. To that end, the reasons
must be proper, adequate and intelligible and must give consideration to the
substantial points of argument raised by the parties … The Refugee Division is
obligated, at the very least, to comment on the evidence adduced by the
applicant at the hearing. If that evidence is accepted or rejected, the applicant
should be advised of the reasons why.
At the same time, the reasons are not to
be read microscopically and held to a standard of perfection. They must be read
as a whole: Medina v. Canada (Minister of Employment and Immigration) (1990), 120 N.R. 385 (F.C.A.);
Ahmed v. Canada (Minister of Employment and Immigration) (1993), 156 N.R. 221 (F.C.A.).
[16]
It is
clear that the panel’s reasons adequately set out the underlying rationale for
the decision, and give consideration to the substantial points raised by the
parties.
b) The applicant’s credibility
[17]
The
applicant argued that the panel had erred in its assessment of his credibility.
According to the applicant, it was unreasonable to disregard the affidavit of
the person who participated in his liberation based on contradictions between
the visa application and his later statements, on the length of time it took
him to claim refugee protection, and on the lack of medical evidence.
[18]
It should
be noted that the reasonableness standard calls for significant deference with
regard to decisions made by an administrative tribunal. The question is not
whether I would have come to the same conclusion but rather if the decision
falls within a range of ‘‘possible, acceptable outcomes defensible in
respect of the facts and law’’: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47. To
this question I unhesitatingly respond in the affirmative. In fact, there is no
doubt in my mind that the panel’s decision was not based on an erroneous
finding of fact, made in a perverse or capricious manner, or without regard for
the material before the panel (Federal Courts Act, R.S.C. (1985), c.
F-7, subsection. 18.1(4)).
[19]
The
panel’s negative credibility finding regarding the applicant is based on a
number of factors. The panel noted a flagrant contradiction between the
applicant’s statements about his criminal record contained in the affidavit
submitted in support of his visa application and his later statements. It is
true that in R.K.L. v. Canada (Minister of Citizenship and Immigration),
2003 FCT 116, Justice Martineau ruled that the fact of declaring to have
travelled using an authentic passport when it was in fact a false passport
could not justify a general negative credibility finding. That is not what is
at issue here; rather, it is two sworn statements. The applicant claimed that
his visa application had been filled out in his name by a human smuggler, who
advised him not to mention the criminal charges he faced, or else his
application would be rejected. The panel, which had the benefit of questioning
the applicant and assessing not only his answers but also his body language and
reactions, took this explanation into consideration but did not find it
satisfactory.
[20]
I have
already addressed the issue of the lack of medical evidence supporting the
applicant’s allegations of torture, which was used as a basis for the panel’s
negative credibility finding. The third factor held against the applicant is
the four-month period between his arrival in Canada and his claim for refugee protection. In
this regard, the applicant argued that he could not submit his claim earlier
because he had given his passport to the person who had organized his travel to
Canada. The panel once again
rejected this explanation, noting that it could not possibly be corroborated
and that the person who was supposedly in possession of his passport had failed
to appear before the panel, in spite of a summons issued to that effect.
[21]
The
applicant argued that the delay in making his claim cannot be a determining
factor and that the panel could not hold him responsible for the fact that the smuggler
did not comply with the summons issued to him by the panel. In this regard, I
would make the following comments. It seems to me, first of all, that we cannot
infer from the panel’s statements any blame being assigned to the applicant for
the smuggler’s failure to obey the summons he had been sent. As for the delay
in filing a claim, this is certainly a factor the panel could take into
consideration in assessing the applicant’s credibility, even if it could not be
a determinative factor in itself: see Huerta v. Canada
(Minister of Employment and Immigration), (1993) 157 N.R. 225 (F.C.A.); Niyonkuru
v. Canada (Minister of Citizenship and Immigration), 2005 FC 174;
Conte v. Canada (Minister of Citizenship and Immigration),
2005 FC 963. It is true that the applicant’s subjective fear, on which some
doubt may be cast, given the delay in filing his claim, is not relevant under
section 97 of the Act. Nonetheless, the objective risk allegedly faced by the
applicant must be based on a credible story.
[22]
In short,
I am satisfied that the panel could reasonably conclude that the applicant
lacked credibility based on the different factors mentioned in the preceding
paragraphs. Even if each of these factors, considered in isolation, may be
insufficient in themselves to draw such a conclusion, the same cannot be said
when they are taken as a whole. In such circumstances, the panel’s decision certainly
falls within the range of possible outcomes with regard to the facts submitted.
c) Membership in a religious group
[23]
Lastly,
the applicant argued that the panel had failed to address the ground of
persecution, namely, his membership in the group of baptized Sikhs. Yet it is
clear upon reading the applicant’s narrative in his Personal Information Form (PIF)
that his fear was based, not on his membership in a social group, but rather derived
from the fact that he had been arrested and tortured by the police on suspicion
of having ties to militants.
[24]
The fact
that the applicant had mentioned being a baptized Sikh in his PIF and that his
counsel had briefly referred to it in his submissions is insufficient to make
it a ground of persecution. A careful reading of the panel’s record reveals
that the basis for his claim was his alleged connection to militants and that,
in fact, no incidents relating to his being a baptized Sikh were even alleged. Under
these circumstances, the panel cannot be faulted for failing to address an
issue which did not emerge from the evidence submitted. As the Federal Court of
Appeal wrote in Guajardi-Espinoza v. Canada (Minister of Employment and Immigration) (1993), 161 N.R. 132 (F.C.A.),
at para. 5:
[w]ith respect, the Court does not feel
that the appellants can ex post facto, that is once the Refugee Division
decision has been rendered, change the nature of the argument they made to the
tribunal based on one single sentence they took out of the file after fine
tooth-combing it. As this Court recently said in Louis v. M.E.I.,
[F.C.A., No A-1264-91, April 29, 1993.] the Refugee Division cannot be faulted
for not deciding an issue that had not been argued and that did not emerge
perceptibly from the evidence presented as a whole. [Ibid., at 3.] Saying the
contrary would lead to a real hide-and-seek or guessing game and oblige the
Refugee Division to undertake interminable investigations to eliminate reasons
that did not apply in any case, that no one had raised and that the evidence
did not support in any way, to say nothing of frivolous and pointless appeals
that would certainly follow.
See also: Singh v. Canada (Minister of Citizenship and Immigration), 2007 FC 732.
[25]
As for the
general documentary evidence on the situation of baptized Sikhs submitted by the
applicant, it has been well established that, in general, nothing can be
deduced from such evidence when considering an application by a refugee
claimant. The risk referred to in sections 96 and 97 must be personalized and
specific to the applicant himself; consequently, the situation generally
existing in a given country is not sufficient to establish the basis for the
protection sought, in the absence of any tangible connection to the applicant’s
personal situation.
[26]
For all
these reasons, I am of the view that this application for judicial review must
be dismissed. The parties submitted no question for certification and none will
be certified.
ORDER
THE COURT ORDERS that the application for judicial
review be dismissed. No questions are certified.
‘‘Yves de
Montigny’’
Certified true translation
Sebastian Desbarats
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