Date: 20090211
Docket: IMM-2179-08
Citation: 2009 FC 143
Montréal, Quebec, February 11, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
JHOTAN KAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This is an application for judicial review,
pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001,
c. 27 (the Act), of a decision by the Refugee Protection Division (RPD) of the Immigration
and Refugee Board, dated November 30, 2007, to
reject the applicant’s refugee claim because the applicant was neither a
Convention refugee nor a person in need of protection under section 96 or 97 of
the Act.
II. Facts
[3]
The
applicant claims that a group of three Islamists, who go by the names of
Haider, Jubair and Didar (HJD), seized his deceased father’s residential and
non-residential lands in 2003-2004 by registering them in the land registry in
the name of the HJD group. Although the non-residential part of these lands had
been occupied by the HJD for some time before the death of the applicant’s
father in 2004, the latter took no steps to reclaim possession while he was
alive.
[4]
In
March 2006, the applicant checked on the titles of the lands at the registry
office, and found out that his father’s property was registered in the name of
the HJD.
[5]
After
consulting with his brother, a U.S. resident since 1996, and certain members
of the local community, the applicant, out of fear of reprisals, decided not to
take legal action against the HJD to reclaim his father’s property.
Nonetheless, he did approach a local elected official and certain leaders of
the Awami League to ask that they open discussions with the HJD on his behalf
to help him recover his father’s property. These talks proved unsuccessful.
[6]
On
April 7 and May 16, 2006, unidentified Islamists apparently went to the
applicant’s business and robbed and assaulted him, stole his equipment, and
threatened to kill him and his family unless he left the country.
[7]
At
that same time the applicant says that he was declared an enemy of Islam
for having complained to the Awami League about the usurpation of his father’s property
by the HJD.
[8]
On
May 28, 2006, Islamist terrorists allegedly attacked and threatened the applicant’s
two sons and his wife as they left the Kalibari Hindu temple, warning them to
leave the country if they wanted to live in peace.
[9]
On
June 10, 2006, Islamist terrorists allegedly showed up at the above-mentioned temple
during prayers, and told the congregation to terminate its meeting and
religious songs. The applicant then intervened with a comment about Muslim
religious practices, which provoked an altercation
with the assailants, who once again threatened to kill him and warned him to
leave the country.
[10]
After
this incident, with his assailants after him, the applicant apparently went
into hiding with his family in another location before leaving for Canada to seek
refuge.
III. Issue
[11]
Did the RPD commit an error that would warrant the intervention
of this Court in weighing the evidence that led to its finding that the
applicant is neither a refugee nor a person in need of protection?
IV. Analysis
Standard
of review
[12]
The courts must show deference to specialized administrative
tribunals that, as in this case, have expertise in matters under their
jurisdiction (Dunsmuir v. New Brunswick, 2008 SCC 9; Aguebor
v. Canada (Minister of Employment and Immigration), [1993] F.C.J.
No. 732 (F.C.A.) (QL); Yurteri v. Canada (Minister of
Citizenship and Immigration), 2008 FC 478, at paragraphs 12-13).
[13]
The
RPD’s findings of fact, and more specifically those related to the applicant’s
credibility, are subject to the standard of reasonableness, which means that,
in order to justify its intervention the Court must ask itself whether the impugned
decision was reasonable in light of its “justification” and “whether the
decision falls within a range of possible, acceptable outcomes that are
defensible in respect of the facts and the law” (Dunsmuir, supra,
paragraph 47; Yurteri, supra, paragraph 13).
Applicant’s
claim
[14]
The
issue of credibility is necessarily tied to the very facts that the applicant
is relying on in his application. In assessing the reasonableness of the RPD’s general
finding on the applicant’s credibility, it is important to look at the facts on
which the applicant’s claim is based and to identify its key elements.
[15]
The
applicant claims that the panel improperly interpreted his refugee claim because,
despite the fact that the issue of the seizure of his father’s property is the
event that triggered the ensuing incidents, this in his opinion had nothing to
do with the incidents that prompted his escape. In other words, he claims that
[TRANSLATION] “…the claim was based on two factors: the religious issue on the
one hand and the issue of persecution over the property’s ownership on the
other…” (paragraph 1 of the applicant’s second supplemental memorandum).
[16]
Let
us look at whether the issues of property and religion can be dissociated in
this matter or whether they are indissociable.
[17]
The
fact that the applicant is Hindu has not been challenged. But in its decision,
the RPD questions his claims that his father’s lands were appropriated by
Islamists, just as many other Hindu properties have been in the past to the
benefit of Islamists.
[18]
From
the applicant’s testimony, it appears that the HJD usurped the title to his
deceased father’s property and took possession of it. The HJD even took over
the non-residential part of this property before his father’s death, without
the latter making any effort to have the HJD removed.
[19]
The
applicant is now seeking to link the problems related to his claims to his
father’s property to the problems that started on June 10, 2006, during prayers
at the Kalibari temple. In essence, he is challenging the RPD’s finding that
the family property issue is the core factor in his claim.
[20]
The
evidence and the applicant’s admission clearly disclose that his claim to his
father’s property is and remains the factor that triggered his problems with
the HJD. The applicant’s narrative in the Personal Information Form (PIF)
indicates this, as do the immigration officer’s notes and the applicant’s
testimony at the hearing. However, just because the HJD are Islamists and
because Islamist friends of the HJD are trying to intimidate the applicant into
giving up his claims to his father’s property, this does not mean that the
applicant was being persecuted on religious grounds.
[21]
Based
on the totality of the evidence, the Court must recognize that it was
reasonable for the RPD to find that the applicant’s problems were intimately
tied to his attempts to reclaim his father’s property and never stopped being
central to his claim, and that his difficulties stem from that even if the HJD
were Islamists and had Islamist friends to support their actions. From that
point on, it was up to the applicant to prove his claims and convince the RPD of
their merit (Kante v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 525
(F.C.T.D.) (QL), at paragraph 8).
[22]
Thus,
it was up to the applicant to dispel any inconsistency in his narrative with
sufficient evidence for the RPD to weigh within its decision-making authority. The
RPD could therefore assess both the authenticity and the probative value of the
documents submitted by the applicant in support of his refugee claim, including
the probative value and authenticity of the documentary evidence (Mahendran
v. Canada (Minister of Citizenship and Immigration), [1991] F.C.J. No. 549
(F.C.A.) (QL); Chaudhary v. Canada (Minister of Citizenship and
Immigration), [1997]
F.C.J. No. 961 (F.C.T.D.) (QL)).
[23]
However,
the documentary evidence does not clearly establish that the property in
dispute was registered in the name of the HJD, nor is it clear which property
was usurped or if the property claimed to have been taken includes his father’s
residence. The RPD was required to assess the value of the documentary evidence
filed by the applicant. However, the applicant failed to meet the burden of
proving to the RPD that the property in dispute was owned by his deceased
father and had been usurped by the HJD.
Applicant’s
credibility
[24]
The
Board was entitled to draw reasonable findings about the applicant’s
credibility based on various items of evidence (Shahamati v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.) (QL)). In this
case, the decision-maker’s findings of lack of credibility are reasonable
because they are based on the evidence or absence thereof, on contradictions,
implausibilities and the applicant’s behaviour.
[25]
Given
that the RPD found a general lack of credibility on the applicant’s part, it
was justified in not attaching any probative value to the other evidence that
he claims it did not consider (Sheikh v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 238 (F.C.A.); Perjaku v. Canada
(Minister of Citizenship and Immigration), 2007 FC 496; Songue v. Canada
(Minister of Citizenship and Immigration), [1996] F.C.J. No. 1020
(F.C.T.D.) (Q.L.)).
[26]
In
attempting to convince the Court that the RPD had erred in the negative
inferences regarding the credibility of his account that it drew from the
evidence, the applicant is seeking to justify the evidence that the RPD set
aside because it considered it to be unreliable, unsatisfactory, implausible,
incomplete or uncorroborated. Yet, it should be remembered that the applicant
had every opportunity to fully present his account to the RPD to convince it of
the validity of his claims; unfortunately, he did not manage to satisfactorily
meet his burden of proof.
[27]
This
Court has on numerous occasions indicated that “a tribunal can conclude that
there is lack of credibility by basing itself on improbabilities in the refugee
status claimant’s account, on common sense and on reason” (Garcia v. Canada (Minister of
Citizenship and Immigration), 2008 FC 206, at paragraph 9).
Moreover, the absence of documentation corroborating the applicant’s
allegations may negatively affect his credibility (Singh v. Canada (Minister of
Citizenship and Immigration), 2007 FC 62).
[28]
Nonetheless,
based on the fact that the RPD did not accept or comment in its decision on
certain evidence that the applicant considers more important than that which was
relied on by the RPD in its finding, the applicant claims that it did not
consider all of the evidence provided, and therefore characterizes its decision
as being unreasonable.
[29]
However,
this argument by the applicant ignores the fact that it must be presumed that
the RPD considered all of the evidence presented (Florea v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL)), and
that when it finds and explains why the applicant is not credible, it is not
required to address every item of evidence supporting allegations to the contrary, either because it has not considered them or because it
deemed them not credible, not reliable, not corroborated or not necessary to
its findings (Ahmad v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 471, at paragraph 26).
[30]
It
is not up to this Court to redo the exercise and weigh the evidence once again
or to substitute its opinion for that of the RPD, particularly since it does
not have the benefit of the latter’s expertise, not to mention the unique
advantage of having heard the applicant’s account of the true grounds for his
claim. All in all, the RPD is still certainly more qualified than this Court to
assess the credibility of the applicant’s account.
[31]
This
Court’s review is limited to ascertaining whether the RPD’s decision is justified
and reasonable in light of the criteria indicated in Dunsmuir, supra.
The decisions concerning the credibility of one of the parties is the
“heartland of the discretion of triers of fact”, and consequently their
decisions must receive considerable deference upon judicial review and cannot
be overturned unless they are perverse, capricious or made without regard to
the evidence (Siad v. Canada (Secretary of State) (C.A.), [1997] 1 F.C.
608, at paragraph 24; Dunsmuir, supra).
[32]
The
RPD’s decision, far from being perverse or capricious, is largely based on the
evidence in finding the applicant’s narrative not credible and explaining why.
Of course, some inaccuracies or errors may have made their way into the
understanding of the evidence that the RPD was required to weigh. But seen and
analyzed in their entirety, the reasons for the decision that is being impugned
through this proceeding do not contain any sufficiently important error to warrant
intervention by this Court. On the contrary, the findings of the RPD regarding
the credibility of the applicant’s narrative are entitled to this Court’s
deference.
[33]
In
essence, the applicant has not been able to demonstrate that the impugned decision
is based on findings of fact made in a perverse or capricious manner, or that
the panel rendered its decision without regard to the evidence before it (Lin
v. Canada (Minister of Citizenship and Immigration), 2008 FC 698).
V. Conclusion
[34]
After
hearing the arguments and analyzing the evidence and the decision addressed by
this proceeding, the Court can only observe that it is a justified decision,
that it falls within the range of possible outcomes based on the facts and the
law, in essence making the decision a reasonable one that does not warrant intervention
by this Court.
[35]
Given
that no serious question of general importance was raised, no question will be
certified.
JUDGMENT
FOR THESE REASONS, THE
COURT:
DISMISSES the
application for judicial review.
“Maurice
E. Lagacé”
Certified
true translation
Susan
Deichert, Reviser
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