Date: 20090924
Docket: IMM-2841-08
Citation: 2009 FC 958
Ottawa, Ontario, September 24, 2009
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
SINGH,
HARDIAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Background
[1]
The applicant is a male Sikh who is a citizen of
India. In 1998 he first left India for the United
Arab Emirates (“UAE”) under a work permit. He claims
never to have returned to India
out of fear until May of 2005, when he travelled back to his native country to
see his ill and dying father.
[2]
He subsequently left India for the UAE in October of 2005. He arrived in Canada from the UAE
on December 1, 2005 on a temporary travel visa in order to attend a trade show
in Toronto. He claimed refugee
status a few months later in April of 2006.
[3]
After holding hearings on the matter, a Panel of
the Refugee Protection Division of the Immigration and Refugee Board rejected
the claim in a decision dated May 30, 2008.
[4]
The Applicant sought judicial review of this
decision before the Federal Court and leave for this purpose was granted by
Justice Edmond Blanchard on October 16, 2008.
[5]
A judicial review hearing was held before
Justice Lemieux on January 14, 2009, but this hearing was interrupted after the
presentation of the Applicant’s arguments which raised entirely new issues
which had not been previously raised. Justice Lemieux allowed counsel for the
Minister to present supplementary arguments of law and fact to answer these new
issues, which supplementary arguments were eventually filed with the Court.
[6]
I heard the parties on the judicial review on a de
novo basis in Montreal on
September 16, 2009, at which time counsel for the Applicant informed the Court
that the new issues which had been raised in the hearing before Justice Lemieux
were withdrawn. Consequently counsel for the Minister withdrew her
supplementary arguments answering these new issues.
The Decision under
Review
[7]
The Panel of the Refugee Protection Division of
the Immigration and Refugee Board rejected the claim on the basis that the
claimant lacked credibility (pages 2 and 7 in fine of the Decision:
“Credibility was the determinative issue in this claim”; “Based on the
foregoing, the claimant was found not to be credible.”).
[8]
The claimant had stated that he had been
arrested by the police in India
and tortured in 1997 as he was suspected of aiding Sikh militants. He claimed
he was released from police custody through bribes and thereafter fled to the
UAE in January of 1998 to avoid persecution. He stated that he never came back
to India out of fear until 2005
when he returned to see his sick and dying father. The claimant provided no
evidence on these events other than his testimony and two sentences in an
affidavit declaration of a Sarpanch which is further referred to below.
[9]
A copy of his previous passport could have
established that indeed the claimant had never returned to India between 1998 and 2005, thus giving
some objective evidence as to his fear of return. When the passport was
requested, the claimant stated that it had disappeared, apparently stolen.
Though the claimant stated he could provide a photocopy of this passport, this
photocopy proved subsequently to be illegible.
[10]
After returning to India on May 3, 2005, the
claimant stated that the police raided his home, arrested him, interrogated
him, and tortured him alleging that he had taken training in Pakistan and was
in India to disturb the August 15th independence day celebrations.
Though faced with such serious allegations, the claimant offered no evidence to
the police that he had been in the UAE during this time and not in Pakistan.
[11]
Again the claimant seems to have escaped the
police even though such serious allegations were being made against him. In
fact, he remained in India
until October of 2005, well over three months after his father had died on June
12, 2005. The Panel found such a delay in leaving the country completely at
odds with the claimant’s story. If indeed the claimant’s life or personal
security was in danger, if he was suspected of having trained in Pakistan and of being in India for disruptive purposes, if he was
the subject of arrest and torture as well as death threats, the Panel asked why
he had not left earlier at the first opportunity. His answer was that he had to
take care of family affairs following the death of his father. This answer was
found not credible by the Panel.
[12]
The claimant had not indicated in his original
Personal Information Form any displacements or harassments of his family since
his departure from India in
October of 2005. He subsequently modified this claim prior to the hearing to
add that family members were being harassed by the police to such an extent as
to require their displacement from their village. The Panel found that the
claimant could provide no specifics or details or dates related to these
alleged harassments, and offered no independent confirmation beyond his own
testimony.
[13]
Furthermore the claimant stated he had no problems
leaving India in October of
2005 even though he was subjected to the routine security inspections at the
airport. The Panel found this fact seriously affected the credibility of the
claimant since he had stated that he had been arrested at least three times
prior to his departure, had been fingerprinted and photographed and told not to
leave the country.
[14]
After reviewing further the testimony of the
claimant and noting numerous additional inconsistencies and implausible
statements, the Panel commented on the third party evidence the claimant had
provided to bolster his claim.
[15]
The claimant had submitted a Sarpanch affidavit
in support of his claim. The Panel found that the concerned Sarpanch affidavit
lacked in specifics. As well, the Panel noted that the affidavit was marked
with the notice “India non judicial” and “Valid outside India” and consequently held that in its
view this affidavit had no legal value inside India and could not thus hold
legal value in Canada. In
conclusion the Panel found the affidavit evidence “not credible” (at page 7 of
the Decision).
[16]
Furthermore, the claimant adduced a medical
report in support of his alleged arrests on May 5, 2005 and September 10, 2005.
The Panel found discrepancies between the claimant’s statements as to the
nature of his ailments and the treatment received as noted in the report.
Consequently the Panel found that the “claimant’s testimony does not
corroborate with the letter in a significant manner” (at page 7 of the
Decision), thus further undermining the claimant’s credibility.
Issues
[17]
At the hearing on the judicial review, counsel
for the Applicant raised three issues:
a.
The Panel did not properly assess the
credibility of the claimant and consequently erred in its decision;
b.
The Panel erred in disregarding the Sarpanch
affidavit in support of the claim;
c.
The Panel erred in disregarding the medical
reports since it holds no expertise in medical matters and should have thus
accepted these reports at face value.
[18]
The Court notes that in regard to the medical
reports, the Panel did not disregard these documents. It rather placed little
probative value on these reports in light of the discrepancies between the
claimant’s statements as to the nature of his ailments and the treatment
received and these medical reports. Consequently the third issue raised by the
Applicant is nothing more than a simple variant of the first issue relating to
the assessment of the credibility of the Applicant himself.
[19]
As concerns the Sarpanch affidavit, though the
Panel stated in its decision that this document did not have legal force in
either India or Canada (an issue on which I offer no
opinion), the decision of the Panel to disregard this evidence was
fundamentally based on the lack of specific details found in the affidavit
itself.
[20]
Consequently, I am of the view that the sole
issue at stake in this judicial review concerns the assessment of the
credibility of the evidence presented by the claimant, and particularly the
assessment of the claimant’s credibility.
Analysis
[21]
It is trite law that factual findings of administrative tribunals must
not be disturbed on judicial review save exceptional circumstances. This Court
must not revisit the facts or weigh the evidence (see among other Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, at para. 51 and 53: “Where
the question is one of fact, discretion or policy, deference will usually apply
automatically.”; Canada (Citizenship and Immigration) v. Khosa,
[2009] 1 S.C.R. 339, at para. 46: “More generally it is clear from s. 18.1(4)(d)
that Parliament intended administrative fact finding to command a high degree
of deference.”
[22]
This standard of review has consistently been held to apply to
decisions of the Refugee Protection Division of the
Immigration and Refugee Board concerning findings of fact or of
credibility in the context of refugee claim determinations: Aguebor v.
Canada (Minister of Employment and Immigration), 160 N.R. 315, [1993] F.C.J
no. 732 (F.C.A.), at para. 4; M.S.M. v. Canada (Minister of
Employment and Immigration), 2005 FC 147, [2005] F.C.J. no. 165, at para.
14 (Lemieux J.).
[23]
After having reviewed carefully the Decision of the Panel, the
transcript of the hearing and the documents comprising the file before the Refugee Protection Division, I find the decision of the Panel “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.” (Dunsmuir v. New Brunswick,
supra at para. 47; Canada (Citizenship and Immigration) v. Khosa,
supra at para. 59).
[24]
Indeed the Panel took great care to review the testimony of the
claimant and the evidence he presented. It expressed clearly and cogently the
reasons for which it found the claimant not credible and for which the claim
could not be sustained. It is not appropriate for this Court to intervene in
such circumstances since this decision clearly falls within possible acceptable
outcomes and is defensible in respect of both the facts and the law.
Conclusion
[25]
Consequently the application for judicial review
is denied.
Certification
[26]
No certified question was proposed and none is warranted in this
case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for
judicial review is dismissed.
“Robert
M. Mainville”
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