Date: 20070125
Docket: IMM-2513-06
Citation: 2007 FC 62
Ottawa,
Ontario, the 25th
day of January 2007
Present:
The Honourable Mr.
Justice
Shore
BETWEEN:
PRITAM
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
The Court is
of the opinion that the Board may draw reasonable conclusions based on
implausibilities, common sense and rationality and may reject testimony if it does
not accord with the probabilities affecting the case as a whole: (Aguebor v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 732 (QL); Alizadeh v.
Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11 (QL);
Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J.
No. 415 (QL))
LEGAL PROCEEDINGS
[2]
This is an
application for judicial review, under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision dated April 19, 2006, of the Immigration and
Refugee Board (Board), which concluded that the applicant is not a Convention
refugee (section 96 of the Act) or a person in need of protection (section 97
of the Act).
FACTS
[3]
The
applicant, Pritam Singh, is a citizen of India. He is of the Sikh Jatt religion. He
alleges a fear of persecution by the Indian police. According to his narrative,
Indian police persecuted him because he was suspected of harbouring terrorists.
These suspicions were based on the sudden disappearance of an employee of the
applicant, Riaz Ali, who allegedly lived on the applicant’s farm from December
2002 to March 2003.
[4]
According
to Mr. Singh, on March 3, 2003, Indian police accused him of having supplied
munitions or firearms to Sikh militants. They kept him in custody and tortured
him for two days. On March
5, 2003, they
released him on condition that he co-operate with the police in searching for
Mr. Ali.
[5]
On August
12, 2003, Mr. Singh hired another person to work on his farm. The police came
to interrogate him the next day. Several days later, they arrested him and
accused him of conspiring or attempting to cause an explosion on Independence
Day in Moga on August
15, 2003. They
released him on August 16, 2003, in exchange for a bribe and on condition that
Mr. Singh co-operate once again with the police in searching for Mr. Ali. They asked
him to report any information on Mr. Ali by October 1, 2003, at the latest.
[6] Following this incident, Mr. Singh lived in hiding
at his uncle’s home in New
Delhi.
Meanwhile, he met an agent who made arrangements for his departure from India. On May 21, 2004, Mr. Singh left India for Canada, transiting through the United Kingdom. He entered Canada on the same date.
[7] After arriving in Canada, he left Toronto for Alberta, where he worked as a cook in a restaurant.
On May 27, 2005, Mr. Singh claimed refugee
protection in Montréal, following the expiry of his temporary workers visa.
CHALLENGED DECISION
[8] On April 19, 2006,
the Board concluded that Mr. Singh was not a “Convention refugee” or a “person in
need of protection” under sections 96 and 97 of the Act, after having ruled
that his testimony was not credible. This conclusion was based on the numerous inconsistencies,
implausibilities, and contradictions in Mr. Singh’s testimony, as well as on
his behaviour before his arrival in Canada.
ISSUE
[9] Did the Board make a
patently unreasonable error in deciding that Mr. Singh was not credible?
STANDARD OF REVIEW
[10] Assessment of the
credibility of witnesses and the weighing of evidence is within the Board’s
jurisdiction. It has well-established expertise to deal with issues of fact and,
more specifically, to assess credibility and the subjective fear of persecution
of a claimant for refugee protection. (Cepeda-Gutierrez v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL), at paragraph
14).
[11] In the case of an
application for judicial review concerning issues of credibility, the applicable
standard of review is that of patent unreasonableness. The Court must show great
deference, as it is up to the Board to weigh the testimony of the applicant and
assess his credibility. If the Board’s conclusions are reasonable, intervention
is not warranted. However, the Board’s decision must be based on the evidence.
It must not be made in a capricious manner on the basis of erroneous findings
of fact or without regard for the material before the Board. (Mugesera v.
Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100,
[2005] S.C.J. No. 39 (QL), at paragraph 38; Aguebor, supra, at
paragraph 4)
ANALYSIS
The conclusion of the Board
about Mr. Singh’s credibility was not patently unreasonable
[12] Following a study of
the documentary evidence and the hearing minutes, the Court is of the opinion
that the Board’s decision is reasonably based on all the evidence. The Board
supported its decision by giving detailed explanations and by addressing the
crux of the applicant’s claim.
[13] Right from the start,
the Board noted that Mr. Singh hesitated when he testified. He did not answer
directly or precisely when he was asked specific questions. In other words, the
applicant was not spontaneous in his testimony:
Testimony for this claimant
was somewhat laborious. He had difficulty answering what would normally be
considered clear and concise questions addressed by both the tribunal and his
own counsel. The problem of alcohol and drug abuse was identified by counsel as
perhaps being the cause for his lack of spontaneity. This tribunal cannot
confirm nor deny that such abuse could contribute to his less than accurate
testimony.
(Reasons for Decision of the Board,
page 3)
[14] The case law of the
Federal Court and the Federal Court of Appeal confirms that the Board may assess
credibility by evaluating the general demeanour of a witness as he or she is
testifying. (Leung v. Canada (Minister of Employment and Immigration)
(F.C.A.), [1993] F.C.J. No. 685 (QL); Wen v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 907 (QL); Singh (Re), [1994]
F.C.J. No. 1140 (QL))
[15] It is important to
note that, contrary to what Mr. Singh stated, as appears from the Board’s
reasons, the Board did not deal with Mr. Singh’s problems with drugs and
alcohol in his absence. Quite the contrary, it was counsel for Mr. Singh who raised
these problems at the pre-trial conference. (Tribunal record, at page 256).
[16] Moreover, the Board
took Mr. Singh’s problems with alcohol into consideration to explain his lack
of spontaneity, even though no medical evidence was submitted to corroborate
this allegation. The burden of establishing the merits of the claim is on the
applicant. The Board is not required to enquire any further into Mr. Singh’s
alcohol problems to show that his application is well founded. Quite the
contrary, it is up to the applicant to prove that he has a drinking problem that
could affect his testimony. (El Jarjouhi v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 466 (QL), at paragraph 6)
[17] In any event, Mr.
Singh’s problems with alcohol or drugs cannot explain the implausibility of his
narrative, his inability to adduce evidence corroborating his testimony, and
the absence of any subjective fear. Almost all of the negative conclusions
reached by the Board concern the implausibility of Mr. Singh’s story, his
inability to corroborate the testimony, or his subjective fear.
[18] On this point, Mr.
Singh testified to the effect that, during his detention on March 3, 2003, the police accused him of
supplying militant Sikhs with munitions or firearms. Mr. Singh added that
the police released him two days later on condition that he co-operate with
them in searching for Mr. Ali. However, the Board found it implausible that the
police would release Mr. Singh if they actually did believe he was supplying
militant Sikhs.
[19] Mr. Singh also stated at the hearing that as soon
as he was released from detention on March 3, 2003, he co-operated with
the police in searching for Mr. Ali. However, five months later, when Mr. Singh
tried to hire a new employee to work on his farm, the police arrested him and
accused him once again of conspiring or attempting to cause an explosion on
Independence Day.
[20] Again, the Board was of the opinion that such a
scenario was implausible. In fact, it did not see any reason why the police would
accuse Mr. Singh of attempting to cause an explosion, especially when Mr. Singh
alleged having co-operated with the police after his release. Furthermore, Mr.
Singh did not give any reasonable explanation on this point when the Board
asked him to explain this inconsistency.
[21] Secondly, the Court is of the opinion that the
Board s entitled to make reasonable findings based on implausibilities,
common sense and rationality, and may reject evidence if it is not consistent
with the probabilities affecting the case as a whole. (Aguebor, supra; Alizadeh,
supra; Shahamati, supra)
[22] On this point, Mr. Singh stated that he was prepared
to return to India without any fear if the
police found and detained Mr. Ali. The Board noted that this statement directly
contradicted Mr. Singh’s narrative, in which he alleged that the police
suspected him of supplying Sikh militants and of helping or harbouring
terrorists. The Board affirmed the following:
…His testimony to the effect
that he would not hesitate to return to India if Riaz ALI was captured by
police further shows that his fear is not based on the alleged accusations that
he helped militants, nor that he supplied food, shelter, and weapons to
terrorists…
(Reasons for Decision of the Board,
at page 4)
[23] Thirdly, Mr. Singh’s behavoiur affects his
credibility. He entered Canada in May 2004 and claimed refugee protection in
May 2005.
[24] There is a well-established principle to the effect
that any person having a well-founded fear of persecution should claim refugee
protection in Canada as soon as he or she arrives
in the country, if that is his or her intent. On this point, the Federal Court
of Appeal has already concluded that any delay in claiming refugee protection
is an important factor which the Board may take into consideration in its
analysis. Such a delay indicates a lack of a subjective fear of persecution, since
there is a presumption to the effect that a person having a well-founded fear
of persecution will claim refugee protection at the first opportunity. Accordingly,
in conducting its assessment, the Board is entitled to take into consideration
the applicant’s delay in claiming refugee protection. (Thomas v. Canada (Minister
of Citizenship and Immigration), [1998] F.C.J. No.241 (QL), at paragraph 4;
Huerta v. Canada (Minister of Citizenship and Immigration), [1993]
F.C.J. No. 271 (QL); Espinosa v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1324, [2003] F.C.J. No. 1680 (QL), at paragraph 16)
[25] Mr. Singh claims that the conclusion reached by the
Board is patently unreasonable because the Board drew an unfavourable conclusion
about his credibility on the basis of the delay in claiming refugee protection,
in spite of the fact he legally resided in Canada until May 2005. With respect, the Court
is of the opinion that this argument is not always valid. For example, in Correira
v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1060, [2005] F.C.J. No. 1310 (QL):
[15] The applicants submitted that the Board erred
in failing to consider that the applicants had legal status as visitors for six
months when they claimed protection and so were not removable from Canada at that time.
. . .
[18] The respondent submitted that a delay in
making a refugee claim is relevant when assessing the existence of subjective
fear. Conversely, possession of a visitor’s visa does not normally displace a
presumption that a bona fide refugee would claim protection at the first
available opportunity.
. . .
[29] A review of the Board’s decision shows that the Board did
take delay into account, but it does not appear to be a determinative element
of the Board’s decision. The Board noted the principal applicant’s explanation
but found it unacceptable. I am of the view that the Board did not make a
reviewable error in this respect.
[26] Likewise, in Niyonkuru v. Canada (Minister of Citizenship and
Immigration),
2005 FC 174, [2005] F.C.J. No. 210 (QL), the Court ruled as follows:
[22] The Board attached
considerable importance to the fact that the applicant had let a month go by
before claiming refugee status. Clearly this was a relevant point which the
panel could take into account in assessing the applicant's credibility, even if
it could not be a determinative factor in itself (Huerta v. M.C.I. (1993),
157 N.R. 225, [1993] F.C.J. No. 271 (F.C.A.) (QL); Rahim v. M.C.I.,
[2005] F.C.J. No. 56 (QL)).
[23] It is true that the
applicant had a visa which allowed him to remain in Canada until January 2003. The fact remains
that his actions were not those of someone truly fearing for his life if he
were to return home. Not only are the reasons he gave for waiting for the end
of his training before going to the Immigration Canada office unconvincing, but
it was also apparent from the transcripts that he had the time to travel on
weekends.
The negative inferences drawn by the
Board regarding the lack of evidence of a medical certificate to prove Mr.
Singh’s statements and the affidavit of the Sarpanch submitted in evidence are
not patently unreasonable
[27] First of all, Mr.
Singh criticizes the Board for drawing negative inferences with regard to the
lack of evidence of a medical certificate to prove his statements.
[28] It is trite law that
the Board may draw an unfavourable conclusion about Mr. Singh’s credibility
when his story is implausible and when he does not submit any evidence to
corroborate his allegations. In Encinas v. Canada (Minister of Citizenship and Immigration), 2006 FC 61, [2006] F.C.J.
No. 85 (QL), Mr. Justice Simon Noël wrote the following:
[21] I would add that it is
clear from reading the transcript of the hearing that the applicants did not
discharge their onus of proof to convince the RPD that their claim was
well-founded. Indeed, the RPD informed them more than once that certain facts
should have been put in evidence (the employment relationship in 2003, for
example). Consequently, the RPD, not having at its disposal the evidence that
it would have liked to receive, found that the version of the facts in the
claim was not credible. That finding was certainly open to the RPD. (See Muthiyansa
and Minister of Citizenship and Immigration, 2002 FCT 17, [2001] F.C.J. No.
162, at para. 13.)
[29] In the present case,
the Board noted that Mr. Singh did not submit any evidence corroborating his
allegations. On this point, Mr. Singh claims that, following the alleged torture
he suffered on two occasions in police detention, he received medical care.
However, he did not submit any medical certificates to that effect.
[30] Likewise, Mr. Singh
did not submit any evidence to confirm that Mr. Ali actually does exist and
worked on his farm from December 2002 to March 2003. The Board was entitled to
require evidence corroborating the existence of Mr. Ali, because Mr. Singh’s
credibility had already been affected. Although it is quite possible that the
hiring of a person to work on a farm is not documented in India, there are numerous ways of showing a
person exists, especially if that person is a wanted terrorist. However, Mr.
Singh’s record contains no newspaper articles or sworn statements from neighbours
confirming that Mr. Ali exists. It is also important to underline the fact that
even the sworn statement of the Sarpanch did not mention Mr. Ali.
[31] Secondly, Mr. Singh criticizes
the Board for not attaching any probative value to the affidavit of the
Sarpanch. According to the applicant, the affidavit should have been accepted
as a proven fact, because there is nothing to contradict the statements therein.
[32] The Board stated the
following on this point:
…Exhibit R-12, paragraph 6,
shows that his family left the village of habitual residence to avoid police
problems. This does not confirm that his parents and family are harassed in any
way. His testimony to the effect that he would be further maltreated by police
is unsubstantiated and not believed. He is not a credible witness.
(Reasons for Decision of the
Board, at page 2)
[33] The Board is not
required to comment on each of the documents submitted if the decision may be
logically understood on the basis of the evidence. Mr. Justice Paul Rouleau stated
the following in Songue v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No.
1020 (QL):
[12] The
Refugee Division need not specifically mention that it is rejecting a piece of
documentary evidence when it does not believe the circumstances that are said
to have given rise to that evidence.
[13] Tremblay-Lamer
J. has stated the following on this point:
As
to the Board's credibility finding about the male applicant's political activities
in the United States, the applicants' main argument seems to be that the
Board provided no explanation for assigning "no probative value" to
a letter issued by the DUP in the U.S. regarding the male applicant's political
activities. Considering the Board's finding that it was implausible that
the male applicant would continue high profile activities against the government
of Sudan while living illegally in the U.S. and while
his wife was still in Sudan, the Board was entitled to give no weight to that letter. The
fact that he is a member of the DUP does not indicated that he has high
profile activities against the government [See Ali v.
Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 558, IMM-2402-95, April 25, 1996 (F.C.T.D.) at page 7]
[34] In addition, as confirmed
by the Federal Court in Sheikh v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 238, [1990] F.C.J. No. 604 (QL), the conclusion
that a claimant has no credibility, as in this case, may affect all of the evidence
connected with this testimony:
[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.
Although this decision was rendered on the basis of the
former Immigration Act, R.S.C. 1985, c. I-2, it is still valid. In fact,
given the legislative framework of the current Act, “a tribunal’s perception
that a claimant is not credible on an important element of their claim can
amount to a finding that there is no credible evidence to support the claim”. (Chavez
v. Canada (Minister of Citizenship and Immigration), 2005 CF 962,
[2005] F.C.J. No. 1211 (QL), at paragraph 7; Touré v. Canada (Minister
of Citizenship and Immigration), 2005 FC 964, [2005] F.C.J. No. 1213 (QL), at paragraph 10; Rahaman
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, [2002]
F.C.J. No. 302 (QL), at paragraphs 29-30.)
[35] In addition, in Singh v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1543, [2005] F.C.J. No. 1908 (QL), Mr. Justice Noël wrote the
following:
[13] The Board concludes
that the affidavit signed by the Sarpanch is either a document of convenience
or a false document. The applicant claims that such a finding is arbitrary and
unfair, particularly considering that no independent verification or expertise
was done on the affidavit in question. In Al-Shaibie v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1131, the Federal Court of
Appeal adopted the statement of Justice Nadon inHamid v. Canada (Minister of
Employment and Immigration), [1995] F.C.J. No. 1293 at paragraph 21,
regarding the use of documents after a negative finding of credibility:
Once a Board, as the present
Board did, comes to the conclusion that an applicant is not credible, in most
cases, it will necessarily follow that the Board will not give that applicant's
documents much probative value, unless the applicant has been able to prove
satisfactorily that the documents in question are truly genuine. In the present
case, the Board was not satisfied with the applicant's proof and refused to
give the documents at issue any probative value. Put another way, where the
Board is of the view, like here, that the applicant is not credible, it will
not be sufficient for the applicant to file a document and affirm that it is
genuine and that the information contained therein is true. Some form of
corroboration or independent proof will be required to "offset" the
Board's negative conclusion on credibility.
[14] In the present
matter, the Sarpanch's affidavit was not given any probative value because the
Board found the applicant not to be credible. Therefore, I find the Board's
decision to dismiss the Sarpanch's affidavit not to be arbitrary or unfair.
[36] It is
obviously up to the Board to assess the credibility of the remaining evidence.
Accordingly, it is not patently unreasonable for the Board to conclude that Mr.
Singh’s lack of credibility affects the weight of the other evidence submitted,
as it depends to a large extent on the reliability of his testimony.
Accordingly, the intervention of the Court is not warranted on this point.
Burden of proof
[37] Mr. Singh alleges that the Board imposed an excessively
heavy burden on him. He submits that, instead of assessing the evidence on a balance
of probabilities, the Board expected him to convince it. This allegation by Mr.
Singh is based on one word in the reasons for decision. The sentence at issue
is the following:
Based on several above
factors, where the claimant has failed in his quest to convince this tribunal
of his previous persecution…
(Reasons for Decision of the Board,
at page 4)
[38] According to Mr. Singh, the use of this term is
sufficient to conclude that the Board erred with regard to the burden of proof
required. Mr. Singh is mistaken in relying on Naredo v. Canada (Minister of Employment and
Immigration),
[1981] F.C.J. No. 1130, F.C.A. (QL). This old decision involved an issue which
is completely different from the one invoked by Mr. Singh in the case at bar.
In Naredo, the Federal Court of Appeal concluded that the Board had
erred in requiring that the applicant show he was actually persecuted, even
though the legal definition of refugee status only required a well-founded fear
of persecution.
[39] Mr. Singh did not explain in what way the use of
the verb “convince” made the burden on him more onerous. It is possible to
convince a decision-maker on a balance of probabilities, just as it is possible
to convince the decision-maker beyond a reasonable doubt. The verb used does
not change the required threshold or burden.
[40] Accordingly, Mr. Singh submits that the use of the
verb “convince” is an error with regard to the applicable burden of proof.
[41] The Court is of the opinion that the word
“convince” must not be read in isolation. Rather, it must be read as being part
of the expression “in his quest to convince”. By this, the Board is implying
that Mr. Singh has set himself the goal of convincing the Court. However, this
attempt has failed.
[42] Furthermore, it is important to note that the point
is not to look at each word in the reasons for decision under a microscope to
try to find an error. Rather, the decision must be examined as a whole:
For purposes of judicial review, however, it is my view that a
Refugee Board decision must be interpreted as a whole. One might approach it
with a pathologist's scalpel, subject it to a microscopic examination or
perform a kind of semantic autopsy on particular statements found in the
decision. But mostly, in my view, the decision must be analyzed in the context
of the evidence itself. I believe it is an effective way to decide if the
conclusions reached were reasonable or patently unreasonable.
(Miranda v. Canada (Minister
of Citizenship and Immigration), [1993] F.C.J. No. 437)
[43] Likewise, this Court has already decided that the
mere use of terms such as “convince” or “persuade” is not sufficient to
conclude that the decision-maker imposed a heavy burden.
Interpretation
[44] Mr. Singh alleges much too late that there were
problems with interpretation at the hearing.
[45] However, the respondent notes that at the beginning
of the hearing Mr. Singh confirmed that he understood the interpreter very well
and that there were no communication problems:
[translation]
Panel member: Sir, do you understand Mr.
Mouladad when he speaks to you in Punjabi?
Applicant: Yes
Panel member: Any communication problems?
Applicant: No.
[46] In addition, in his affidavit dated January 7,
2006, Mr. Singh did not mention that he had had problems with the interpretation
at the hearing.
[47] However, even if we assume for the sake of argument
that the interpretation was erroneous, Mr. Singh is precluded from invoking
this matter at this stage of the proceedings. In fact, at the hearing, neither
Mr. Singh nor his counsel raised an objection about the quality of the
interpretation. This Court has ruled on many occasions that failure to invoke problems
with interpretation before an administrative tribunal is determinative. For
example, in Gajic v. Canada (Minister of Citizenship and
Immigration),
2003 FCT 108, [2003] F.C.J. No. 154 (QL) :
[11] . . . The issue of improper interpretation was not raised as an objection
at the hearing before the tribunal and consequently, in this case, cannot be raised
now to defeat the tribunal’s determination.
[48] Likewise, in Mohammadian v. Canada (Minister of Citizenship and
Immigration),
2001 FCA 191, [2001] F.C.J. No. 916 (QL), The Federal Court of Appeal
ruled that the applicant’s failure to invoke problems with the interpretation
before an administrative tribunal constitutes a waiver of the right to object
later:
[19] . . . In my view, therefore, Pelletier J. did not err in determining that
the appellant had waived his right under section 14 of the Charter by failing
to object to the quality of the interpretation at the first opportunity during
the hearing into his claim for refugee status.
[49] The argument submitted by Mr. Singh concerning the
quality of the interpretation must be dismissed for another reason. The examples
he mentioned have no effect on any aspect of his claim for refugee protection.
[50] If the interpretation caused real difficulties for
Mr. Singh, it was up to him to establish the prejudice he sustained. No such
evidence was adduced. In addition, Mr. Singh did not propose having the tape
recordings re-heard by another interpreter.
CONCLUSION
[51] Considering the preceding, the application for judicial
review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
Certified
true translation
Michael
Palles
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