Date: 20090910
Docket: IMM-1182-09
Citation: 2009
FC 890
Ottawa,
Ontario, September 10, 2009
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
SHIWINDER SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Preliminary
[1]
What
are the limits of the Federal Court’s opinions with respect to a credibility
assessment by a tribunal of first instance? As reiterated by Mr. Justice Yves
de Montigny in A.M. v. Canada (Minister of
Citizenship and Immigration), 2005 FC 579, 139 A.C.W.S. (3d) 153:
[17] The Board found a number of implausibilities and contradictions in the
evidence given by the Applicant, and drew its adverse credibility conclusion on
that basis. Counsel for the Applicant attempted to reargue the same arguments
that were previously presented to the Board, and basically asked this Court to
reweigh the evidence in order to come to a different conclusion. But it is well
established that paragraph 18.1(4)(d) of the Federal Court Act does not
authorize the Court to substitute its view of the facts for those of the Board,
which sees and hears the witnesses and which also has expertise in assessing
the evidence relating to the facts that are within its area of specialized
knowledge (Cepeda-Gutierrez v. Canada (M.C.I.), [1998] F.C.J. No. 1425 (F.C.). As my colleague
Snider J. said in Sinan v. Canada (M.C.I.), [2004] F.C.J. No. 188:
The
Applicants have put forward alternative explanations for many of the Board's
findings. When the standard of review is, as here, one of patent
unreasonableness, it is not sufficient to present an alternative line of
reasoning - even where that may present a reasonable explanation. What the
Applicants must do is to point to a conclusion of the Board that is not
supportable in any way on the evidence. The Applicants have failed to persuade
me that any of the most significant findings were patently unreasonable. I
cannot conclude that the decision as a whole is patently unreasonable.
II. Nature of legal proceeding
[2]
This
is an application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (Board), issued February 16,
2009, which determined 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 (IRPA).
III. Facts
[3]
The
applicant, Mr. Shiwinder Singh, plays Kabbadi, which is a popular sport in India. The
documents filed indicate that he is a very good player since he has played for
a team in India for the last
four years. His skill was recognized, and he was sent to the United
Kingdom
twice to participate in tournaments. In 2006, he was selected to come to Canada to take part
in tournaments. Like the other players, he was granted a visa, and he arrived
in Canada on May 12,
2006. In Canada, Mr. Shiwinder
Singh played some Kabbadi matches, but his performance was inadequate. When the
tour organizers warned him that he would be sent back to India, Mr. Shiwinder Singh
travelled from Toronto to Montréal where he claimed refugee
protection.
[4]
His
refugee claim is based on allegations that his family was harassed and that he
was imprisoned in India. On the contrary, it is his brother’s story
that is the source of the alleged problems. Mr. Shiwinder Singh claims that his
brother was arrested by the police in September 2005 on suspicion of
having ties to militants. According to Mr. Shiwinder Singh, he met with a
lawyer on March 6, 2006, to arrange for the release of his brother, who was still detained
because the Court refused to grant him bail. On March 9, 2006, the
police arrested Mr. Shiwinder Singh. He was accused of having ties to
militants and of filing false complaints against the police. He was detained
for two days during which Mr. Shiwinder Singh claims that he was beaten and
tortured.
IV. Impugned decision
[5]
The
Board’s decision is based on Mr. Shiwinder Singh’s lack of credibility. To make
this finding, the Board relied on contradictions and implausibilities in the
testimonial and documentary evidence that it analyzed. The Board’s conclusions
that are relevant to this application are as follows:
a. The applicant alleges that his brother was imprisoned on suspicion
of having ties to militants, but Exhibit R-5, filed by Mr. Shiwinder Singh, is
a copy of a trial that shows that his brother was arrested for possession of a
firearm and armed robbery. Mr. Shiwinder Singh’s allegation that his family
drove his brother to the police station is contradicted by Exhibit R-5, which
shows that it was the police who arrested him. The Board did not believe that,
after his arrest, Mr. Shiwinder Singh was stripped,
beaten and tortured by the police because
he failed to mention this at his refugee hearing.
b. Last, the Board found that Mr. Shiwinder Singh was
unable to provide the Board with his arrest date; he said it was in February
2005, in March, in February 2006 and finally in March 2006.
V. Issue
[6]
Did
the Board err by finding that the applicant was not credible?
VI. Standard of review
[7]
Credibility
is a question of fact that calls for deference dictated by the reasonableness
standard (Aguebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.) at paragraph 4; A.M.,
above, at paragraph 14).
VII.
Analysis
Contradiction between applicant’s documents and testimony
[8]
Exhibit
R-4 is a decision of an Indian court. It refers to an armed robbery committed
by certain individuals and states that Mr. Shiwinder Singh’s brother was one of
the robbers. According to the decision, the armed robbery occurred on September
1, 2005. Mr. Shiwinder Singh’s brother was identified as one of the robbers
although he escaped before being arrested with the other robbers (Certified Record
at pages 255 to 256).
[9]
Exhibit
R-5 is another decision of an Indian court. This decision states that the
police arrested Mr. Shiwinder Singh’s brother on September 5, 2005, a few days
after the armed robbery, for possession of a pistol and cartridges contrary to
the Arms Act (Certified Record at page 265).
[10]
Mr.
Shiwinder Singh accuses the Board of not understanding that the charges contained
in Exhibits R-4 and R-5 are false. In his affidavit and testimony, he contends
that the police laid false charges against his brother because his brother was
a social worker who criticized the police, the authorities and also because his
brother was associated with militants.
[11]
The
Board did not believe that the police laid false charges because there were witnesses
who knew his brother and recognized him as one of the perpetrators. Mr.
Shiwinder Singh did not provide any evidence that his brother’s charges and
convictions were false. The Board could properly consider the lack of
corroboration of key elements of the claim as well as the applicant’s failure
to provide a satisfactory explanation for not providing those documents (A.M.,
above, at paragraphs 19 to 20; Amarapala v. Canada (Minister of
Citizenship and Immigration), 2004 FC 12, 128 A.C.W.S. (3d) 358 at paragraph
10.)
[12]
Since
the Board was entitled to assess Mr. Shiwinder Singh’s credibility by relying
on criteria such as rationality and common sense (Shahamati v. Canada (Minister
of Employment and Immigration), [1994] F.C.J. No. 415 (QL) (F.C.A.)), it was
reasonable to make a non-credibility finding since the documents filed by Mr.
Shiwinder Singh contradicted his testimony. In this case, for example, Mr.
Shiwinder Singh’s allegation that it was his family who drove his brother to
the police station is contradicted by Exhibit R-5, which shows that it was the
police who arrested him. Assessing the authenticity and probative value of documents
filed by a refugee applicant is an integral part of the discretion to weigh
evidence that Parliament conferred on the Board as a specialized tribunal (Mahendran
v. Canada (Minister of
Employment and Immigration) (1991), 134 N.R. 316, 14 Imm. L.R. (2d) 30 (F.C.A.)).
In light of the documentary evidence, which consisted of decisions by the court
in India, it was open
to the Board to weigh the probative value of those documents and to assign more
weight to them than to Mr. Shiwinder Singh’s contradictory testimony.
[13]
It
is true that the Board mistakenly interchanged Exhibits R-4 and R-5 in its decision,
at paragraph 7, where it was stated that Exhibit R-5 showed that Mr. Shiwinder
Singh’s brother was arrested for taking part in an armed robbery. It was Exhibit
R-4, not Exhibit R-5, that showed that Mr. Shiwinder Singh’s brother was
arrested for possession of a firearm; although he was arrested for possession of
a firearm, he was also convicted of armed robbery. Read in its entirety and
context, it is clear that the Board knew the difference between the two documents
and that this error had no impact on the findings of credibility or fact. The
two documents, individually or together, contradict Mr. Shiwinder Singh’s
allegations about his brother’s story.
[14]
Since
the findings about Mr. Shiwinder Singh’s credibility with regards to his
brother’s story may also extend to all the evidence emanating from his
testimony (Sheikh v. Canada (Minister of Employment and Immigration),
[1990] 3 F.C. 238, 21 A.C.W.S. (3d) 1350 (F.C.A.)), the Board was entitled to question
the reasons given to justify Mr. Shiwinder Singh’s detention by the police.
Failure
to mention that he was tortured
[15]
The
notes from the interview with an immigration officer on June 27, 2008, show
that Mr. Shiwinder Singh did not mention having been stripped and
tortured. However, Mr. Shiwinder Singh stated that he had been tortured
in his Personal Information Form (PIF) (Certified Record at page 21), which was
completed prior to the interview with the immigration officer. At the hearing
before the Board, Mr. Shiwinder Singh was confronted with this omission. The
Board assessed Mr. Shiwinder Singh’s explanations that he had been instructed
to answer only the questions asked and that the immigration
officer did not give him enough time to tell his entire story.
[16]
In
Bains v. Canada (Minister of Citizenship and Immigration) (1998), 82
A.C.W.S. (3d) 142, [1998] F.C.J. No. 1144 (QL) (T.D.), the Court recognized
that an applicant can omit minor events from his or her PIF, but
significant incidents that are at the crux of the claim are to be
recounted (also, Munwar v. Canada (Minister of Citizenship and Immigration),
2004 FC 1351, 134 A.C.W.S. (3d) 301 at paragraphs 17 to 19). From the
Court’s review of the evidence, it is clear that the immigration officer
explicitly asked Mr. Shiwinder Singh if he had been a victim of violence in
India, to which he replied in the negative (Certified Record at pages 208 and
209). Simply stating in a PIF that one was beaten and tortured by the police is
not sufficient, in itself, to establish that it happened without specific
information in this regard. In this case, Mr. Shiwinder Singh did not provide
any evidence regarding his hospitalization after the alleged torture, and he told
the immigration officer that he had not been a victim of violence in India. It is the
role of the Board, as a specialized tribunal, to weigh the refugee claimant’s
testimony and to assess the credibility of his or her statements in the context
of the totality of the evidence (Aguebor, above); it was therefore open
to the Board to make a non-credibility finding regarding Mr. Shiwinder Singh’s
failure to mention the allegations of torture in his interview with the
immigration officer.
VII. Conclusion
[17]
The
Board reasonably interpreted the documents filed by Mr. Shiwinder Singh; the
Board’s credibility findings were therefore reasonable in fact and in law.
[18]
For
all the foregoing reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial
review is dismissed;
2. No
serious question of general importance is certified.
“Michel M.J. Shore”
Certified
true translation
Mary
Jo Egan, LLB
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