Date: 20070605
Docket: IMM-6201-06
Citation:
2007 FC 569
Ottawa,
Ontario, June 5, 2007
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
MANJIT SINGH
RAVINDER KAUR
MUSKAN KAUR
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) against the decision
dated October 24, 2006, by Michel Jobin of the Refugee Protection Division (the
panel). The panel concluded that the applicants were not “Convention refugees”
or “persons in need of protection” by reason of their imputed political
opinions.
ISSUE
[2]
Is the
panel’s decision patently unreasonable?
[3]
For the
following reasons, the answer to this question is in the negative. Accordingly,
this application for judicial review will be dismissed.
FACTUAL
BACKGROUND
[4]
The
principal applicant is a citizen of India and is of the Sikh religion. He filed
a refugee claim for himself, his wife and their minor daughter in Montréal on
May 20, 2004, although they had entered Canada with their visas via Vancouver
on November 18, 2003.
[5]
The
principal applicant and his family left New Delhi on October 8, 2003. Before
arriving in Canada, they first transited in Germany from October 8 to 20, 2003,
then in the United Kingdom from October 20 to November 3, 2003, and returned to
Germany from November 3 to 18, 2003.
[6]
They did
not claim refugee status in Germany or in England, although both countries are
signatories to the Convention. Nor did the applicants claim refugee status in
Canada until their Canadian visas expired, six months after they arrived here.
LEGAL HISTORY IN CANADA
[7]
The
applicants’ claim was dismissed on April 20, 2005. However, on November 23,
2005, Mr. Justice Frederick Gibson allowed the application for judicial review
on consent of the parties and remitted the matter to another decision maker.
[8]
It is the
second negative decision dated October 24, 2006, that is the subject of this
application for judicial review.
DISPUTED DECISION
[9]
After
assessing and analysing the evidence, the panel found that the applicants were
not credible. In addition, they had not claimed protection from India.
[10]
Although
they may fear the police and were tortured on two occasions, the applicants
hardly behaved like reasonable people fearing for their lives. In fact, the
panel was not satisfied with the principal applicant’s explanations regarding
his decision to not claim refugee status in Germany or England. If the
applicant genuinely feared for his life and that of his family in India, he
should have filed a refugee claim in one of the countries that are signatories
to the Convention. Moreover, a reasonable person in similar circumstances would
certainly not have waited six months after arriving in Canada to assert his
fear of persecution.
ANALYSIS
Is the panel’s decision patently
unreasonable?
Standard of review
[11]
I must
determine the appropriate standard of review in this case. Where credibility is
in issue, the Supreme Court of Canada has already stated the following in Dr
Q v. College of Physicians and Surgeons of British Columbia, [2003] 1
S.C.R. 226, at paragraph 38:
¶ 38 Finally,
however, the need for deference is greatly heightened by the nature of the
problem — a finding of credibility. Assessments of credibility are
quintessentially questions of fact. The relative advantage enjoyed by the
Committee, who heard the viva voce evidence, must be respected.
[12]
The
Federal Court of Appeal considers that the tribunal in question is in a better
position to assess the credibility of a witness and to draw the necessary
inferences: Aguebor v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 732 (F.C.A.) (QL) at paragraph 4:
There is no
longer any doubt that the Refugee Division, which is a specialized tribunal,
has complete jurisdiction to determine the plausibility of testimony: who is in
a better position than the Refugee Division to gauge the credibility of an
account and to draw the necessary inferences? As long as the inferences drawn
by the tribunal are not so unreasonable as to warrant our intervention, its
findings are not open to judicial review. In Giron, the Court merely
observed that in the area of plausibility, the unreasonableness of a decision
may be more palpable, and so more easily identifiable, since the account
appears on the face of the record. In our opinion, Giron in no way
reduces the burden that rests on an appellant, of showing that the inferences drawn
by the Refugee Division could not reasonably have been drawn. In this case, the
appellant has not discharged this burden.
[13]
The Court
adopts the patently unreasonable standard since the panel essentially had to
assess the applicants’ credibility.
[14]
In this
case, I note that the decision contains factual errors mainly with respect to
dates, and I will comment on two of them. First, on the first page, the panel
wrote the following:
[TRANSLATION]
. . . As noted
above, the claimant lived for some time in the United States and in Germany,
and even spent several weeks in the United Kingdom before returning to Germany
and finally arriving in British Columbia in March 2003.
[Emphasis
added.]
[15]
The panel
clearly made an error in this excerpt because the applicants arrived in
Vancouver in November 2003. This error is not significant since the panel used
the correct date twice later in its
decision on pages two and
four, respectively:
[TRANSLATION]
Finally, carrying a passport issued April 10, 1996, and valid for 10
years, visas for the United Kingdom and for Schengen, and a Canadian visa
issued July 2, 2003, and valid until December 29, 2003, and
an American visa issued in 1998 and valid until February 1999, the
claimants left New Delhi on October 8, 2003. They transited through
Germany from October 8 to October 20, 2003 and the United Kingdom
from October 20 to November 3, 2003; they returned to Germany from
November 3 to November 18, 2003, and finally arrived in
Vancouver on November 18, 2003, after which they came to Montreal and
made a claim for protection with the Canadian authorities on May 20, 2004. . . .
When the panel
asked why the claimants did not seek the protection of Canadian authorities
upon their arrival in Vancouver, the claimant indicated that he had been
invited to visit friends of his father. They advised him to go to Montreal to
make a claim for refugee protection. The claimants arrived in Vancouver on
November 18, 2003, and arrived in Montreal on November 23,
2003. . . .
[Emphasis added]
[16]
The second
error concerns the expiration date of the applicants’ visas. According to the
panel, they expired on December 29, 2003, whereas they were actually valid
until May 17, 2004. However, I do not consider this error to be determinative
since the decision was not based on this factor.
[17]
The third
error occurred when the panel mentioned that the applicant returned to his
country, whereas he returned to his region after staying in New Delhi to obtain
visas.
[18]
The
decision-maker’s main grounds for refusing asylum are: (1) the applicants’
behaviour regarding their various trips to Europe without requesting
protection; (2) the credibility; (3) the fact that they did not seek protection
from India; and (4) the possibility of an internal flight alternative.
[19]
As the
respondent admits, it is clear that the decision could have been structured
much better but despite the errors noted, I find nothing in the decision that
could characterize it as patently unreasonable.
[20]
As in Mohamed
et al v. Canada (The Minister of Citizenship and Immigration), (April 7, 1997)
IMM-2248-96 (F.C.T.D.), the applicants have not established a reasonable fear
of persecution. It is appropriate here to quote Mr. Justice Marshall Rothstein:
This case raises the disturbing question
of asylum shopping. If applicants’ counsel were correct in his domicile
argument, applicants could, at their own will, reject the protection of one
country by unilaterally abandoning that country for another. Indeed, that is
what has occurred here. The Geneva Convention exists for persons who require
protection and not to assist persons who simply prefer asylum in one country
over another. The Convention and the Immigration Act should be
interpreted with the correct purpose in mind.
[21]
It is not
necessary for the Court to intervene in this case.
[22]
No
question to be certified was proposed.
JUDGMENT
THE COURT ORDERS that
1.
The
application for judicial review be dismissed.
2.
No
question is certified.
“Michel
Beaudry”
Certified true
translation
Mary Jo Egan, LLB
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