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Federal Court
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Cour fédérale
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Date: 20090618
Docket: IMM-5014-08
Citation: 2009 FC 643
Ottawa, Ontario, June 18,
2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
PARVEEN KUMAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
In
the present case, the contradictions are at the core of the Applicant’s claim.
They were sufficient for the Immigration
and Refugee Board, Refugee Protection Division (Board) to conclude that he was
not credible.
[2]
A
high degree of deference must be awarded to such decisions:
[17] … The Court must
demonstrate a high degree of deference since it is up to the Board to weigh the
applicants’ testimony and assess the credibility of their statements. If the
Board’s findings are reasonable, no intervention is warranted. However, the
Board’s decision must be based on the evidence: it should not be made
arbitrarily or on the basis of erroneous findings of fact without regard for
the evidence put forward …
(Bunema v. Canada (Minister of Citizenship
and Immigration), 2007 FC 774, 160 A.C.W.S. (3d) 865; reference is also
made to Navarro v. Canada (Minister of Citizenship and Immigration), 2008 FC 358, 169
A.C.W.S. (3d) 626 at paras. 12-14).
[3]
It
is trite law that the Board is entitled to choose, in context, the evidence
that is more fitting to the particularities of each given case. It is not up to
the Applicant, nor the Court (Starcevic v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1370 at par. 18) to reweigh the
evidence or otherwise dictate the elements to which the Board should have
attributed more weight:
[21] The RPD must, as a specialized tribunal, weigh the evidence
submitted and make the necessary determinations.
[22] To do so, the RPD
may choose the evidence that best represents reality and this choice is part of its role and its expertise…
(Del Real v. Canada (Minister of Citizenship
and Immigration), 2008 FC 140, 168 A.C.W.S. (3d) 368; reference is also
made to: Alba v. Canada (Minister of Citizenship and Immigration), 2007 FC 1116 at par.
5; Mohimani v. Canada (Minister of Employment and Immigration) (1993),
41 A.C.W.S. (3d) 556, [1993] F.C.J. No. 564 (QL) (F.C.A.) at par. 2).
II. Judicial Procedure
[4]
This is an
application for judicial review of a decision of the Board, rendered on October
17, 2008 and signed on October 22, 2008, determining that the Applicant was not
a Convention refugee nor a person in need of protection pursuant to sections 96
and 97 of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (IRPA).
[5]
The
decision of the Board is based on the Applicant’s absence of credibility.
III. Facts
[6]
The
Applicant, Mr. Parveen Kumar, is a citizen of India.
[7]
Mr.
Parveen Kumar alleges that his problems stem from his brother, Ravinder Kumar, being
falsely accused of helping militants and a gangster named Umesh Yadav.
[8]
According
to Mr. Parveen Kumar, his brother Ravinder was arrested, detained and tortured on
two occasions. He finally left India for Italy, where he supposedly lived illegally for a few
years before claiming asylum.
[9]
On
January 24, 2005, after Ravinder’s departure, the police broke in Mr. Parveen
Kumar’s house looking for his brother. As he was not on the premises, the
police arrested Mr. Parveen Kumar instead.
[10]
Mr.
Parveen Kumar claims that the police told him they had found his name in a
journal which linked him to the militants. He alleges he was released on
January 25, 2005, after having been tortured.
[11]
Mr.
Parveen Kumar asserts that he consulted an attorney shortly after his
liberation but that the police force was made aware of his intention to institute
proceedings against it.
[12]
Consequently,
the police raided Mr. Parveen Kumar’s home a second time in May 2006. Since he
was not present, his father agreed to bring him to the police station upon his
return.
[13]
When
Mr. Parveen Kumar presented himself to the authorities, he was arrested, detained
and tortured to reveal the whereabouts of Umesh Yadav. He was eventually
released under the condition to report to the police monthly.
[14]
Mr.
Parveen Kumar decided to leave India
for New
Delhi. On
October 8, 2006, after a few months in New Delhi, he left for Canada where he arrived on
October 9, 2006.
[15]
He
claimed asylum on October 27, 2006.
[16]
The
hearing before the Board was held on August 20, 2008. Mr. Parveen Kumar was
represented by counsel.
IV. Issue
[17]
Did
the Board err in determining that the Applicant was not credible?
V. Analysis
Lack of credibility
[18]
In
the present case, the Board found that Mr. Parveen Kumar’s narrative was not
credible for the following reasons:
a) The Applicant testified
that he was tortured in May 2006 to reveal Umesh Yadav’s whereabouts although
the documentary evidence established that he had been killed eight months
earlier in July 2005. Confronted, the Applicant denied that fact and added that
it was possible that there were two persons by the same name. He, however,
never substantiated with evidence the existence of the “second Yadav” (Tribunal
Record (TR) at pp. 336-337);
b) Questioned about his brother’s
occupation since his return to India,
the Applicant testified that he was working in a shop with his father and that
he had not had any problems with the authorities. Given that the Applicant
testified that his brother was sought and perceived by the authorities as being
a gangster and a terrorist, the Board found implausible that he could have
returned to India, after allegedly fleeing to Italy to claim refugee
protection, then to work with their father in a shop without having had any
problems (TR at pp. 344-345);
c) The Applicant specified
that the police, not only suspected him personally of having a link to the
militants but that his name was found on a terrorists’ list. In those
circumstances, the Board found it odd that the police would have agreed to
release the Applicant, even with the payment of a bribe. The Applicant
explained that people from the village council had gone to the police station
to explain that “he had nothing to do with the terrorists”. The Applicant was,
however, unable to explain what had convinced the police to drastically change
their opinion of him to allow for his release (TR at pp. 317-318);
d) The Applicant failed to
provide any corroborating evidence to establish that his brother had claimed
refugee protection in Italy (TR at p. 6);
e) The Applicant
contradicted his Personal Information Form (PIF) on a central element of his
claim:
i.
The
Applicant testified that his family had showed the police proof that his
brother was in Italy and that since then, they no longer came for his brother
but only for him, although his PIF mentioned that the police did not believe
that his brother was in Italy and that they came for him on January 24, 2005
and that he was arrested because his brother was not there.
ii.
Confronted
with the apparent contradictions, the Applicant contradicted himself again,
stating that the proof of departure of his brother was shown to the police on
the day he was released, namely on January 25, 2005, while his PIF indicated
that this proof had been shown to the police prior to the Applicant
incarceration, thus, prior to January 24, 2005 (TR at p. 7).
[19]
It
is trite law that the weighing of the evidence and the evaluation of an
applicant’s credibility is at the core of the Board’s jurisdiction (Bunema,
above, at para. 1; reference is also made to: Singh v. Canada (Minister of
Citizenship and Immigration), 2007 FC 62, 159 A.C.W.S. (3d) 568; Encinas
v. Canada (Minister of Citizenship and Immigration), 2006 FC 61, 152
A.C.W.S. (3d) 497; Kengkarasa v. Canada (Minister of Citizenship and
Immigration), 2007 FC 714, 158 A.C.W.S. (3d) 973).
Applicant’s first issue:
Rules of evidence applicable before the Board
[20]
Mr.
Parveen Kumar claims that the Board committed a reviewable error by concluding
that the presence of his name on a terrorist list made it highly improbable
that he would be released. To him, this conclusion is based on speculation.
[21]
Contrarily
to Mr. Parveen Kumar’s allegations, the Board did not speculate on this issue.
It is founded on Mr. Parveen Kumar’s own testimony (TR at pp. 317-318).
[22]
Mr.
Parveen Kumar states that the Board erred by not having given him an
opportunity to fully provide explanations for the reasons as to why the police
accused him of being involved with militants and with Umesh Yatav.
[23]
As
appears from the transcript, the Board questioned Mr. Parveen Kumar on the
reasons he was given by the police for his wrongful detention and the
plausibility of this part of his narrative.
[24]
Indeed,
Mr. Parveen Kumar stated that he was told he was suspected of being linked with
militants and that his name was included in a journal recovered from militants.
Mr. Parveen Kumar also declared that he was suspected of being a terrorist.
[25]
The
Board confronted Mr. Parveen Kumar with the documentary evidence and the
incoherence of his part of the narrative; it was held highly unlikely that he
would have been released after the payment of a bribe if he was suspected of
being a terrorist or a militant (TR at p. 318).
[26]
Mr.
Parveen Kumar’s attorney objected to this way of proceeding because he
considered that the Board was asking the Applicant to give his opinion. The
Board rejected the objection; it gave Mr. Parveen Kumar the opportunity to
explain his narrative in its entirety as this was the only manner by which to
evaluate the genuineness of his claim.
[27]
The
Board was entitled to proceed in the manner chosen.
[28]
Indeed,
Parliament had chosen an inquisitorial procedural model for the
determination of refugee claims by the Board and hearings conducted in an
informal manner (Thamotharem v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385 at para.
35).
[29]
The
Board is, therefore, not bound by the usual rules of evidence. It may receive
and base its decision on elements of proof, considered to be credible and trustworthy
(Kalangestani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1528, 154
A.C.W.S. (3d) 452; L. WALDMAN, Immigration Law and Practice, 2nd
ed., vol. 1, Butterworths, sections 9.15-9.16, 9.196-9.197).
[30]
Paragraphs
162(2) and 170(g) and (h) of the IRPA:
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162. …
(2) Each Division shall deal with all
proceedings before it as informally and quickly as the circumstances and the
considerations of fairness and natural justice permit.
…
170. The
Refugee Protection Division, in any proceeding before it,
(a) may
inquire into any matter that it considers relevant to establishing whether a
claim is well-founded;
(b)
must hold a hearing;
(c)
must notify the person who is the subject of the proceeding and the Minister
of the hearing;
(d)
must provide the Minister, on request, with the documents and information
referred to in subsection 100(4);
(e)
must give the person and the Minister a reasonable opportunity to present
evidence, question witnesses and make representations;
(f)
may, despite paragraph
(b),
allow a claim for refugee protection without a hearing, if the Minister has
not notified the Division, within the period set out in the rules of the
Board, of the Minister’s intention to intervene;
(g) is
not bound by any legal or technical rules of evidence;
(h) may
receive and base a decision on evidence that is adduced in the proceedings
and considered credible or trustworthy in the circumstances; and
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162. [...]
(2)
Chacune des sections fonctionne, dans la mesure où les circonstances et les
considérations d’équité et de justice naturelle le permettent, sans
formalisme et avec célérité.
[...]
170. Dans toute affaire dont elle
est saisie, la Section de la protection des réfugiés :
a) procède à tous les actes qu’elle
juge utiles à la manifestation du bien-fondé de la demande;
b) dispose de celle-ci par la tenue
d’une audience;
c) convoque la personne en cause et
le ministre;
d) transmet au ministre, sur
demande, les renseignements et documents fournis au titre du paragraphe
100(4);
e) donne à la personne en cause et
au ministre la possibilité de produire des éléments de preuve, d’interroger
des témoins et de présenter des observations;
f) peut accueillir la demande
d’asile sans qu’une audience soit tenue si le ministre ne lui a pas, dans le
délai prévu par les règles, donné avis de son intention d’intervenir;
g) n’est pas liée par les règles
légales ou techniques de présentation de la preuve;
h) peut recevoir les éléments
qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa
décision;
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[31]
The
Guideline 6 – Scheduling and Changing the Date or Time of a Proceeding in the
Refugee Protection Division and the Guideline 7 – Concerning Preparation and
Conduct of a Hearing in the Refugee Protection Division both confirm that
principle:
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GUIDELINE 6
SCHEDULING AND CHANGING THE
DATE OR TIME OF A PROCEEDING IN THE REFUGEE PROTECTION DIVISION
INTRODUCTION
…
The
RPD has the authority to set
its own procedures, as long as the principles of natural justice and fairness
are followed.
…
GUIDELINE 7
CONCERNING PREPARATION AND
CONDUCT OF A HEARING IN THE REFUGEE PROTECTION DIVISION
INTRODUCTION
…
…
Administrative tribunals operate less formally and more expeditiously than
courts of law. Accordingly, the Immigration and Refugee Protection Act (IRPA)
requires the IRB to deal with proceedings before it informally, quickly and
fairly…
THE ROLES
OF MEMBERS, RPOS AND COUNSEL
…
… Case law 4
has clearly established that the RPD has control of its own procedures. It
decides and gives directions as to how a hearing is to proceed…
…
3. HEARING
It is an
essential part of the members' inquisitorial role to be actively involved in
the conduct of hearings. The member is in charge of the inquiry and issues
directions to make the proceedings more efficient…
…
24. … Questioning must bring out relevant
information that will help the member make an informed decision. Questions
that are answered by the claimant just repeating what is written in the PIF
do not help the member.
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DIRECTIVES NO
6
MISE AU RÔLE ET
CHANGEMENT DE LA DATE OU DE L'HEURE D'UNE PROCÉDURE À LA SECTION DE LA
PROTECTION DES RÉFUGIÉS
INTRODUCTION
[...]
La SPR est maître de sa
procédure, mais doit respecter les principes de justice naturelle et
d'équité. [...]
[...]
DIRECTIVES NO
7
DIRECTIVES
CONCERNANT LA PRÉPARATION ET LA TENUE DES AUDIENCES À LA SECTION DE LA
PROTECTION DES RÉFUGIÉS
INTRODUCTION
[...]
[...] Les tribunaux
administratifs s'acquittent de leurs fonctions de façon moins formelle et
selon une procédure plus expéditive que les cours de justice. Ainsi, la CISR
est tenue, par la Loi sur l'immigration et la protection des réfugiés
(LIPR), de fonctionner sans formalisme et avec célérité et
équité. [...]
RÔLES DES COMMISSAIRES,
DES APR ET DES CONSEILS
[...]
[...] La jurisprudence
montre clairement que la SPR est maître de sa propre
procédure. Elle décide du déroulement de l'audience et donne les instructions
à cet égard [...]
[...]
3. AUDIENCE
La participation active des
commissaires à la tenue des audiences fait partie intégrante de leur rôle
inquisitoire. Le commissaire dirige l'enquête et donne des directives pour
favoriser l'efficacité de la procédure. [...]
[...]
24. [...]
L'interrogatoire doit servir à obtenir l'information pertinente qui aidera le
commissaire à rendre une décision éclairée. Les questions invitant le
demandeur d'asile à simplement réciter l'exposé circonstancié du FRP
n'aident pas le commissaire. [...]
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Applicant’s second
issue: Lack of corroborating evidence
[32]
Mr.
Parveen Kumar asserts that the Board could not request corroborating evidence
with respect to his brother’s refugee claim in Italy since his testimony was not contradicted.
[33]
Mr.
Parveen Kumar’s allegations were contrary to an email confirming that the
Italian authorities had no record of the presence of Ravinder in the country
(TR at p. 110).
[34]
The
evidence was, therefore, contradictory and the Board had to confront Mr.
Parveen Kumar on this issue and on his lack of corroborating evidence.
[35]
Indeed,
the Board could ask Mr. Parveen Kumar to produce documentary evidence since his
testimony was not credible and could draw a negative inference in the absence
thereof:
[28] It is trite law that
the Board may draw an unfavourable conclusion about Mr. Singh’s credibility
when his story is implausible and when he does not submit any evidence to
corroborate his allegations. In Encinas v. Canada (Minister
of Citizenship and Immigration), 2006 FC
61, [2006] F.C.J. No. 85 (QL), Mr. Justice Simon Noël wrote the following:
[21] I
would add that it is clear from reading the transcript of the hearing that the
applicants did not discharge their onus of proof to convince the RPD that their
claim was well-founded. Indeed, the RPD informed them more than once that
certain facts should have been put in evidence (the employment relationship in
2003, for example). Consequently, the RPD, not having at its disposal the
evidence that it would have liked to receive, found that the version of the
facts in the claim was not credible. That finding was certainly open to the RPD.
(Emphasis added).
(Singh, above; Encinas, above).
[36]
In
the present case, Mr. Parveen Kumar omitted to provide documents that were at
the core of his claim and failed to offer satisfactory explanations for his
lack of corroborating evidence.
[37]
In
fact, Mr. Parveen Kumar stated that he did not think of asking for documents
and said that the interpreter who helped him file his claim never asked for
anything else (TR at p. 6, paras. 14-15).
[38]
The
Board was not satisfied with this answer since Mr. Parveen Kumar was
represented by counsel for the filing of his claim and PIF and, therefore, had
time before the hearing to request additional documents and complete his file.
[39]
Section
7 of the Refugee Protection Division Rules, SOR/2002-228 states:
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7. The claimant must provide acceptable documents
establishing identity and other elements of the claim. A claimant who does
not provide acceptable documents must explain why they were not provided and
what steps were taken to obtain them.
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7. Le demandeur
d'asile transmet à la Section des documents acceptables pour établir son
identité et les autres éléments de sa demande. S'il ne peut le faire, il en
donne la raison et indique quelles mesures il a prises pour s'en procurer.
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[40]
In Dundar
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1026, 161 A.C.W.S. (3d) 137, the Court
held:
[18] A refugee claimant bears the onus of establishing elements
in his or her claim for protection (Gill v. Minister of Citizenship and
Immigration), [2004] FC 1498, [2004] F.C.J. No. 1828 at para. 25). In Samseen
v. Canada (Minister of Citizenship and Immigration), [2006] FC 542, [2006] F.C.J. No. 727 (QL), at para. 14,
this principle was held to include “giving truthful, coherent and non-evasive
answers to basic questions about events which are alleged to have happened to
him and which form the basis of his claim. […]”
[19] Moreover, in
evaluating the merit of a refugee claim, “[…] the Board [is] entitled to take
into account the applicant's lack of effort to obtain corroborative evidence to
establish [elements of his claim] and to draw a negative inference of his
credibility based on this.” (Samseen, supra, at para. 30). Therefore,
while corroborative evidence is not determinative of a refugee claim, the Board
is free to inquire into its absence.
[20] Indeed, this
inquiry flows directly from Rule 7 of the Refugee Protection Division Rules […]
…
[22] … Where valid
reasons to doubt a claimant’s credibility exist, the Board may draw negative
credibility inferences from a failure to provide supporting evidence. However,
in my opinion, these inferences may only be drawn where the applicant has
also been unable to provide a reasonable explanation for his or her lack of
corroborating material. (Emphasis added).
(Reference is also made to Chikukwa v. Canada (Minister of
Citizenship and Immigration), 2008 CF 1191, 75 Imm. L.R. (3d) 144 at paras.
56-57).
Applicant’s third, fourth and
fifth issues: Re-weighing of the evidence
[41]
Mr.
Parveen Kumar goes into great lengths to argue each and every one of the
Board’s conclusion with respect to his credibility.
[42]
It
is clear that Mr. Parveen Kumar is attempting to have the Court re-weigh the
evidence, hoping for a different conclusion.
[43]
The
Board was able to award low probative value to certain exhibits such as P-7 and
P-8, since Mr. Parveen Kumar’s narrative was found to lack credibility (Hamid
v. Canada (Minister of Employment and Immigration) (1995), 58 A.C.W.S. (3d)
469, [1995] F.C.J. No. 1293 (QL); Singh v. Canada (Minister of Employment
and Immigration), 2006 FC 756, 150 A.C.W.S. (3d) 199 at par. 17).
VI. Conclusion
[44]
For all
of the above-reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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