Date: 20070503
Docket: IMM-5561-06
Citation: 2007 FC 485
Ottawa,
Ontario, May 3, 2007
Present:
The Honourable Mr. Justice Blais
BETWEEN:
LAKHMIR SINGH
RANDHAWA
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review filed pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), against a decision
by the Immigration and Refugee Board (the Board) – Refugee Protection Division
(the RPD) (the panel), dated September 20, 2006, dismissing the
applicant’s claim for refugee protection.
RELEVANT
FACTS
[2]
Lakhmir
Singh Randhawa (the applicant) is a citizen of India who arrived in Canada on
September 26, 2003, and asked for Canada’s protection on
January 5, 2004.
[3]
The
applicant stated that he was a Convention refugee because he had a well-founded
fear of persecution based on his race, his religion and his perceived political
opinion, and that he was a person in need of protection based on the fact that
he would be subject to a risk of torture, a threat to his life or a risk of
cruel and unusual treatment or punishment if he were to return to his native
country. The events referred to in support of the applicant’s refugee claim are
essentially based on incidents of extortion and assault at the hands of Shiv
Sena, a group of Hindu extremists, and unjustified arrests and assaults at the
hands of the police.
[4]
In
his Personal Information Form (PIF), the applicant told of the 2002 kidnapping
of his eldest son Ranjit Singh Randhawa, who had allegedly been released after
a ransom had been paid. The applicant moreover stated in his PIF that after he
arrived in Canada in 2003, he did not know of Ranjit’s whereabouts. However, on
February 23, 2006, i.e. two weeks after the scheduled hearing date before the
Board, the refugee protection officer assigned to the matter was informed by
the representative of the Minister of Public Safety and Emergency Preparedness
that the Board had a file in the name of the applicant’s son, Ranjit Singh
Randhawa, and that he has continuously been in Canada since 1998. On March 22,
2006, the applicant’s representative was informed that
Ranjit Singh Randhawa’s PIF and the other documents relating to his
refugee claim would be filed in the applicant’s record. On May 9, 2006, the
applicant’s representative submitted amendments to the applicant’s PIF and to
his written story, deleting the references to the fact that his eldest son’s
whereabouts were unknown. It was not until the beginning of the hearing on May
26, 2006, that the applicant’s representative asked that the name of the
applicant’s son be replaced by the name of his youngest son in the paragraph
referring to the kidnapping and the ransom demand.
IMPUGNED DECISION
[5]
In
a decision dated September 20, 2006, the panel determined that the applicant
was not credible and therefore that he was not a Convention refugee or a person
in need of protection pursuant to sections 96 and 97 of the Act. The panel also
determined that the applicant’s story was a fabrication and an attempt to
mislead the panel.
ISSUES
[6]
The
issues in this application are the following:
(1)
Did
the panel err in assessing the evidence regarding the applicant’s credibility?
(2)
Did
the panel err in its interpretation of the Act and the Regulations?
STANDARD OF REVIEW
[7]
It
is well settled in the case law that the appropriate standard for the judicial
review of a decision by the Board varies according to the nature of the
decision. For a question of law, the standard is that of correctness; for a
question of fact, that of patent unreasonableness; and for a mixed question of
fact and law, that of reasonableness. This approach was confirmed by the
Supreme Court of Canada in Mugesera v. Canada (Minister
of Citizenship and Immigration), [2005] 2 S.C.R. 100.
[8]
The
first issue bears on the assessment of the evidence and the applicant’s
credibility. Since it is a question of fact, this Court must show deference to
the panel’s findings and must not intervene unless the decision is patently
unreasonable, i.e. unless the panel’s decision was based on an erroneous
finding of fact made in a perverse or capricious manner or without regard to
the evidence before it.
[9]
The
second issue involves the panel’s interpretation of the Act and the Regulations
and is therefore subject to the standard of correctness, enabling the Court to
intervene to correct any error by the panel.
ANALYSIS
(1)
Did the panel err in assessing the evidence regarding the applicant’s
credibility?
[10]
The
panel determined as follows in its decision:
The tribunal believes
that the claimant’s story is not only a fabrication but an elaborate attempt to
mislead the tribunal. Given the general lack of credibility of the claimant,
the tribunal does not believe that the other incidents occurred.
[11]
The
applicant alleged that the panel erred first in finding that the applicant was
not credible based on the confusion regarding the identity of his son who was
allegedly kidnapped in India in 2002 and whose whereabouts were now
unknown to him and, second, in failing to consider all of the evidence. The
applicant explained moreover that the confusion regarding the son in question
was simply a matter of clerical error, as the interpreter had confused the
names of the applicant’s two sons. The applicant finally indicated that Ranjit
Singh Randhawa’s PIF had been put into the records of the applicant’s daughter-in-law
and granddaughter and that they had nonetheless been conferred refugee status.
[12]
It
is important to note prima facie that the explanation based on a
clerical error was not the explanation that was given to the panel. At the
hearing the applicant stated rather that he had received advice from the person
he lived with when he arrived in Canada and that this person had encouraged him
to make false statements.
[13]
Further,
the explanation of a clerical error is not consistent with the evidence in the
record. Not only does the applicant’s PIF mention the kidnapping and presumed
disappearance of “Ranjit Singh Randhawa”, but these paragraphs also refer to
the applicant’s [translation] “eldest
son” which involved more than mere confusion regarding the name. This same [translation]
“clerical
error” is moreover found in the translation of a letter addressed to the
“Police-Commissioner” of Mumbai. According to this letter, the applicant’s son
arrested by Bombay police in December 1990 (i.e. Ranjit) was the same son
who was kidnapped by Shiv Sena in 2002. The applicant’s explanation for this
inconsistency – to the effect that he had shown the interpreter articles
referring to Ranjit, leading the interpreter to think that it was the same son
who had been kidnapped – is not particularly convincing.
[14]
With
regard to Ranjit Singh Randhawa’s PIF being filed in the record of the
applicant’s daughter-in-law and granddaughter, this evidence is not at all
relevant to this matter. Ranjit’s PIF was filed into the applicant’s record to
establish that he could not logically have been kidnapped in 2002 and have
disappeared in 2003, as alleged in the applicant’s PIF, since he has been in
Canada since 1998. The panel did not make any judgment regarding the
content of Ranjit’s PIF, but rather regarding the applicant’s PIF, which has
nothing to do with the records of his daughter-in-law and his granddaughter.
[15]
Considering
the implausibilities of the applicant’s explanations, the panel’s finding
regarding the applicant’s lack of credibility is not unreasonable.
[16]
The
final factor raised by the applicant is the panel’s failure to consider all of
the evidence, in particular the failure to consider the records of his
daughter-in-law and his granddaughter, who were given refugee status.
[17]
A
careful reading of the hearing transcript establishes that the applicant’s
representative attempted to introduce an amendment to the applicant’s PIF
referring to his daughter-in-law and the death of his grandson in 2004.
Although the information regarding this death should have been filed much
earlier, the applicant’s representative stated that he had only been informed
of it the day before, and the panel therefore accepted the filing. However, the
panel noted and the respondent’s representative acknowledged that the decision
in the file of the applicant’s daughter-in-law would not have any impact in
this matter. In fact, a panel is not bound by another panel’s decision in
another matter, as each decision is different and each decision-maker is
independent (Bromberg v. Canada (MCI), 2002 FCT 939, [2002]
F.C.J. No. 1217 (QL)).
[18]
The applicant finally stated that certain evidence had not
been considered by the panel because it had not been filed in the 20 days
preceding the hearing. However, the applicant did not present any argument to
persuade the Court that the panel, by acting in this way, made any error.
Further, the only reference to the evidence that the panel refused to admit is
found on page 2 of the transcript where the panel gives the following reasons
for its decision:
I’m
not prepared to accept the other documents as submitted. I can’t definitely
confirm the sources, we don’t have the originals.
[19]
Indeed,
as the respondent submitted, when the panel has reasonable grounds to doubt a
fact central to the claim, it can on this basis alone dismiss all of the
claimant’s testimony. As the Federal Court of Appeal stated in Sheikh v.
Canada (MEI), [1990] 3 F.C. 238, [1990] F.C.J. No. 604 (QL),
at paragraphs 7 and 8:
The concept of “credible evidence” is not, of course, the same as
that of the credibility of the applicant, but it is obvious that where the only
evidence before a tribunal linking the applicant to his claim is that of the
applicant himself (in addition, perhaps, to “country reports” from which
nothing about the applicant’s claim can be directly deduced), a tribunal’s
perception that he is not a credible witness effectively amounts to a finding
that there is no credible evidence on which the second-level tribunal could
allow his claim.
. . . In other words, a general finding of a lack of credibility
on the part of the applicant may conceivably extend to all relevant evidence
emanating from his testimony.
[20]
In
Yang v. Canada (MEI), [1995] F.C.J. No. 121 (QL), the Federal
Court of Appeal noted moreover:
The appellant has not
succeeded in persuading us that the Board acted unreasonably in finding that
the claimant’s account of the central incident alleged in support of his claim
was implausible. If that central incident is disbelieved, as clearly it was,
the other alleged errors of the Board are of no consequence.
[21]
In
this case, it is clear that the panel determined that the applicant was not
credible based on the false statements regarding the kidnapping and subsequent
disappearance of his son and that it therefore dismissed all of the applicant’s
testimony to find that the refugee claim was unfounded.
[22]
For the reasons stated above, I consider that the panel’s
decision regarding the applicant’s credibility was well founded and that the
intervention of this Court is not justified.
(2) Did the panel err in
its interpretation of the Act and the Regulations?
[23]
The
applicant also raised three of the panel’s “errors” in regard to its
interpretation of the Act or the Regulations, namely:
(a) the absence
of automatic joinder;
(b) the failure
to obtain Ranjit Singh Randhawa’s consent before filing his PIF in the
applicant’s record; and
(c) the
intervention of the Minister of Public Safety and Emergency Preparedness.
Absence of automatic
joinder
[24]
Section 49
of the Immigration and Refugee Protection Regulations, SOR/2002-228 (the
Regulations), provides the following:
|
49. (1) The Division must join
the claim of a claimant to a claim made by the claimant’s spouse or
common-law partner, child, parent, brother, sister, grandchild or grandparent.
|
49. (1) La Section joint la
demande d’asile du demandeur d’asile à celle de son époux ou conjoint de
fait, son enfant, son père, sa mère, son frère, sa soeur, son petit-fils, sa
petite-fille, son grand-père et sa grand-mère.
|
[25]
The
applicant argued that his refugee protection claim should have been joined to
the claims of his daughter-in-law and his granddaughter, and that this error
justified the intervention of the Court.
[26]
On
the other hand, the respondent contended that pursuant to section 49, the
joinder applied only to the applicant’s granddaughter and not to his
daughter-in-law. With regard to the granddaughter, for the application to be
joined to her grandfather’s, the panel also had to be aware of the relationship
uniting them. In section 5 of the PIF, where the claimant must write the name
of every family member who has filed a refugee claim, the applicant wrote “N/A” (not applicable). The applicant never sought to amend
his PIF afterward and did not file any evidence to the effect that his granddaughter
had referred to the family relationship in her own PIF. In fact, the
applicant’s PIF does not contain any reference to a granddaughter.
[27]
The
rule of automatic joinder implies that the authorities are aware of the family
relationship. If neither the applicant nor his daughter-in-law mentioned the
relationship uniting them, and they arrived in Canada separately and filed
their claims at least one year apart, how could the authorities proceed to join
the proceedings?
[28]
Indeed,
the applicant could have taken the initiative following his granddaughter’s
arrival in Canada, and requested their claims be joined, which he did not do.
In fact, in the absence of automatic joinder, rule 50 provides the following:
|
50. (1) A party may make an application to the
Division to join claims, Applications to Vacate Refugee Protection or
Applications to Cease Refugee Protection.
|
50. (1) Toute partie peut demander à la Section
de joindre plusieurs demandes d’asile, d’annulation ou de constat de perte
d’asile.
|
[29]
As
the family relationship was mentioned for the first time at the applicant’s
hearing before the panel, namely after his daughter-in-law and granddaughter’s
hearing, it was too late to join the claims.
The filing of the PIF of
the applicant’s son
[30]
The
applicant then submitted that the panel did not observe section 17 of the
Regulations, by filing Ranjit Singh Randhawa’s PIF in the applicant’s record.
Section 17 reads as follows:
|
17. (1) Subject to subsection (4), the Division may disclose
to a claimant personal and other information that it wants to use from any
other claim if the claims involve similar questions of fact or if the
information is otherwise relevant to the determination of the claimant’s
claim.
(2) If the personal or other information of another claimant has not
been made public, the Division must make reasonable efforts to notify this
person in writing that
(a) it intends to disclose the information to a claimant; and
(b) the person may object to this disclosure.
(3) In order to decide whether to object to the disclosure, the person
notified may make a written request to the Division for personal and other
information relating to the claimant. Subject to subsection (4), the Division
may disclose only information that is necessary to permit the person to make
an informed decision.
(4) The Division must not disclose personal or other information if
there is a serious possibility that it will endanger the life, liberty or
security of any person or is likely to cause an injustice.
|
17. (1) Sous réserve du
paragraphe (4), la Section peut communiquer au demandeur d’asile des
renseignements -- personnels ou autres -- qu’elle veut utiliser et qui
proviennent de toute autre demande d’asile si la demande d’asile soulève des
questions de fait semblables à celles de l’autre demande ou si ces
renseignements sont par ailleurs utiles à la solution de la demande.
(2) Dans le cas où des renseignements
-- personnels ou autres -- concernant un intéressé n’ont pas déjà été rendus
publics, la Section fait des efforts raisonnables pour aviser par écrit
celui-ci des faits suivants:
a) elle a l’intention de les communiquer
à un autre applicant d’asile;
b) l’intéressé peut s’opposer à la
communication.
(3) Pour décider s’il s’opposera à la
communication, l’intéressé peut demander à la Section, par écrit, qu’elle lui
communique des renseignements -- personnels ou autres -- sur le demandeur
d’asile. Sous réserve du paragraphe (4), la Section ne communique à
l’intéressé que les renseignements nécessaires pour qu’il puisse prendre sa
décision en connaissance de cause.
(4) La Section ne peut communiquer de
renseignements -- personnels ou autres -- si cela entraînerait des risques
sérieux pour la vie, la liberté ou la sécurité d’une personne ou causerait
vraisemblablement une injustice.
|
[31]
As
argued by the respondent, the Regulations do not require that the person
concerned give his or her consent to have the information disclosed. Rather,
there must be “reasonable efforts” made to notify the person, and if the person
objects, his or her objections will be taken into consideration by the RPD and
the information will not be disclosed “if there is a serious possibility that
it will endanger the life, liberty or security of any person or is likely to
cause an injustice”.
[32]
On
February 23, 2006, a letter was sent to Ranjit Singh Randhawa, notifying him of
the RPD’s intention to file his record as evidence in another refugee claim
hearing, and indicating that he had to disclose any objection before March 10,
2006, failing which his consent would be presumed. The letter had been returned
to the sender as Ranjit Singh Randhawa no longer resided at that address. On
April 7, 2006, a letter was sent to the panel by the applicant’s
representative, stating that the applicant’s son had informed him that he
objected to the disclosure of his record. However, the panel did not receive
any document signed by Ranjit Singh Randhawa indicating his refusal.
[33]
The
applicant insisted on the fact that the panel should have sought the consent of
Ranjit Singh Randhawa at the beginning of the hearing, since he was there. The
applicant stated moreover that the person concerned must be informed and have
the opportunity to make submissions.
[34]
Since
Ranjit Singh Randhawa was in the waiting room during the hearing for his
father, who had amended his own PIF to indicate that Ranjit had been in Canada
since 1998, I have difficulty believing that Ranjit was not aware of the
situation and had not already been in a position to object in writing to the
panel through his father’s representative.
[35]
Indeed,
it is clear on reading the transcript that the panel, after learning that the
applicant’s son was present, sought to obtain his consent, and that the
applicant’s representative stated that this was not necessary, since he did not
object to the disclosure of his record, other than the absence of an official
notice, a notice which he would have received if his change of address had been
disclosed. I refer to a passage from page 12 of the transcript in support of this:
Q.
But since he is here, perhaps we could save
ourselves some steps and hear it from him, that he does not want his file
disclosed.
A.
No. Actually, I discussed with him just now.
Q.
Yes?
A.
Do you have any objection (inaudible) using your
file, his objection was only that nobody asked him before disclosing. So, now I
understand that you sent a letter.
[36]
In
the absence of an objection by the individual concerned, and given that he was
present in the waiting room, the panel determined that filing this individual’s
record would not bring about any of the risks provided under subsection 17(4) of the Regulations.
[37]
In
my opinion, section 17 was respected and there is nothing to justify the
intervention of this Court.
Intervention of the
Minister of Public Safety and Emergency Preparedness
[38]
Finally,
the applicant argued that the representative of the Minister of Public Safety
and Emergency Preparedness, who disclosed the existence of the record of the
applicant’s son, was not authorized to review the applicant’s PIF or his son’s
PIF, as this right was reserved to the Minister of Citizenship and
Immigration.
[39]
It
is clear, as the respondent argued, that the applicant’s objection to the
presence and to the action of the Minister of Public Safety and Emergency
Preparedness has no legal basis in his case. In fact, section 4 of the Act
provides that the Minister, within the meaning of
section 2 of the Canada Border Services Agency Act,
S.C. 2005, c. 38, i.e. the Minister of Public Safety and Emergency
Preparedness, may be responsible for the administration of the Act in certain
circumstances. Section 4 of the Act reads as follows:
|
4. (1) Subject to subsection (2), the Minister of
Citizenship and Immigration is responsible for the administration of this
Act.
(2) The Minister as defined in section 2 of the Canada Border
Services Agency Act is responsible for the administration of this Act as
it relates to
(a) examinations at ports of entry;
(b) the enforcement of this Act, including arrest, detention and
removal;
(c) the establishment of policies respecting the enforcement of
this Act and inadmissibility on grounds of security, organized criminality or
violating human or international rights; or
(d) determinations under any of subsections 34(2), 35(2) and
37(2).
(3) Subject to subsections (1) and (2), the Governor in Council may
specify
(a) which Minister referred to in subsections (1) and (2) shall
be the Minister for the purposes of any provision of this Act; and
(b) that both Ministers may be the Minister for the purposes of any
provision of this Act and the circumstances under which each Minister shall
be the Minister.
(4)
Any order made under subsection (3) must be published in Part II of the Canada
Gazette.
|
4. (1) Sous réserve du paragraphe (2), le ministre de la
Citoyenneté et de l’Immigration est chargé de l’application de la présente
loi.
(2) Le ministre, au sens de l’article 2 de la Loi sur l’Agence des
services frontaliers du Canada, est chargé de l’application de la
présente loi relativement:
a) au contrôle des personnes aux points
d’entrée;
b) aux mesures d’exécution de la présente loi,
notamment en matière d’arrestation, de détention et de renvoi;
c) à l’établissement des orientations en
matière d’exécution de la présente loi et d’interdiction de territoire pour
raison de sécurité ou pour atteinte aux droits humains ou internationaux ou
pour activités de criminalité organisée;
d) à la prise des décisions au titre des
paragraphes 34(2), 35(2) ou 37(2).
(3) Sous réserve des paragraphes (1) et (2), le gouverneur en conseil
peut préciser:
a) lequel des ministres visés à ces
paragraphes est chargé de l’application de telle des dispositions de la
présente loi;
b) que les deux ministres sont chargés de
l’application de telle de ces dispositions, chacun dans les circonstances
qu’il prévoit.
(4) Tout décret pris pour l’application du
paragraphe (3) est publié dans la partie II de la Gazette du Canada.
|
[40]
Pursuant
to the “Order Setting Out the Respective Responsibilities of the Minister of
Citizenship and Immigration and the Minister of Public Safety and Emergency
Preparedness Under the Act”, S.I. 2005-2042, November 21, 2005, the
Minister of Public Safety and Emergency Preparedness is a Minister authorized
to be present at the hearing pursuant to paragraph 173(b) of the Act and
is responsible for the application of paragraphs 170 (c) to 170(f)
of the Act which read as follows:
|
170. The Refugee Protection Division, in any proceeding
before it,
…
(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;
|
170. Dans toute affaire dont elle est saisie, la Section de
la protection des réfugiés:
[…]
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;
|
[41]
Paragraph
170 (d) refers to documents provided pursuant to subsection 100(4)
of the Act which states:
|
(4) The
burden of proving that a claim is eligible to be referred to the Refugee
Protection Division rests on the claimant, who must answer truthfully all
questions put to them. If the claim is referred, the claimant must produce
all documents and information as required by the rules of the Board.
|
(4) La
preuve de la recevabilité incombe au demandeur, qui doit répondre
véridiquement aux questions qui lui sont posées et fournir à la section, si
le cas lui est déféré, les renseignements et documents prévus par les règles
de la Commission.
|
[42]
As
the respondent submitted, the “documents . . . required by the rules of the
Board” include an
applicant’s PIF as well as any other document provided by him. The Minister of
Public Safety and Emergency Preparedness was therefore authorized by law to
review the files of the applicant and his son.
[43]
For
all of these reasons, the application for judicial review is dismissed.
[44]
The
parties did not submit any question for certification.
JUDGMENT
1. The
application for judicial review is dismissed.
2. No question
for certification.
“Pierre
Blais”
Certified true translation
Kelley A. Harvey, BCL, LLB
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