Date: 20080418
Docket: IMM-4362-07
Ottawa, Ontario, the 18th day of April 2008
Present:
The Honourable Mr. Justice Lemieux
BETWEEN:
SURINDER SINGH GHOTRA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant is a citizen of India and lived and worked in New Delhi. He came to
Canada on October 21, 2005, to claim refugee protection. He is
challenging the decision of the Refugee Protection Division (the panel) dated
September 27, 2007, refusing to recognize him as a “person in need of
protection” under section 97 of the Immigration and Refugee Protection
Act (the Act). The panel also rejected his claim under section 96 of
the Act. However, the applicant is not challenging that determination before
the Court. Therefore, the issue is limited to the application of
section 97 of the Act.
[2]
The
applicant fears three lenders who are threatening to kill him because he is
unable to repay a very large loan. The panel based its decision on the
applicant’s lack of credibility. It concluded by writing: “After reading all of the documents filed by the claimant and having
assessed all of the evidence, including the testimony given during the hearing,
the panel finds that the claimant is not credible”.
[3]
That
finding is based on the following contradictions and omissions:
·
The
contradiction between the applicant’s Personal Information Form (PIF) and his
testimony concerning the reason why he was unable to repay the loan: a government
policy or an accident involving one of his taxis and the theft of another;
·
Omissions
in his PIF, contradictions between his PIF and his testimony and
inconsistencies within his testimony, namely, whether he had stayed in hiding
since July 2004 fearing his lenders, how he had travelled to Punjab and
why, why he did not seek refuge there with his family in August 2004, and
whether he had continued to work as an automotive electrician;
·
Lack of
corroboration that his lenders had caused the death of his father in
February 2006.
[4]
In my
opinion, the panel was very preoccupied with the fact that the applicant’s
testimony often varied or changed depending on the questions asked.
[5]
As for the
standard of review, Madam Justice L’Heureux-Dubé, on behalf of the Supreme
Court of Canada, wrote in Canadian Union of Public Employees, Local 301 v.
Montréal (City), [1997] 1 S.C.R. 793:
85
We must remember
that the standard of review on the factual findings of an administrative
tribunal is an extremely deferent one: Ross v. New Brunswick School
District No. 15, [1996] 1 S.C.R. 825,
per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or
weigh the evidence. Only where the evidence viewed reasonably is incapable of
supporting the tribunal's findings will a fact finding be patently
unreasonable. An example is the allegation in this case, viz. that there is
no evidence at all for a significant element of the tribunal's decision: see
Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at
p. 669, per McLachlin J. Such a determination may well be made without an
in-depth examination of the record: National Corn Growers Assn. v. Canada
(Import Tribunal), [1990] 2 S.C.R. 1324,
per Gonthier J., at p. 1370.
[6]
The
applicant’s counsel acknowledges the weight of this onus and the fact that the
High Court’s recent decision in Dunsmuir
v. Her Majesty the Queen in Right of the Province of New Brunswick, as
represented by the Board of Management,
2008 SCC 9 does not lighten it, because a “decision . . . on an erroneous
finding of fact . . . made in a perverse or capricious manner or without regard
for the material before [a tribunal]” under paragraph 18.1(4)(d) of the Federal
Courts Act will always be unreasonable.
[7]
Counsel
for the applicant submits that this Court’s intervention is warranted for the
following reasons:
·
What the
panel characterized as contradictions and omissions were either not
contradictions or omissions or were minor ones;
·
The panel
ignored evidence such as Exhibit R‑7, a letter from the applicant’s
lawyer in New Delhi dated June 16, 2006, which indicated that Mr. Ghotra
had consulted him on September 5, 2005, “to get my advise to pay his
debts which he took from different people. I advised him to file court case to
pay their debts on instalments basis”;
·
The panel
did not properly assess the evidence respecting the date of his father’s death;
·
The panel
did not properly assess the evidence from Dr. de Margerie, dated July 7,
2006 (Exhibit R-12), stating that the applicant [translation] “has been monitored at the Clinique Santé
Accueil since November 2005 . . .. In February 2006, the patient’s
condition deteriorated after he found out that his father had been beaten by
the same individuals who had allegedly threatened him. His father apparently
died from his injuries”, as well as Exhibit R-16, another letter from Dr. de
Margerie dated August 9, 2006, indicating that the applicant [translation] “was seen as an emergency
on August 4, because his psychological state had deteriorated . . . he had
found out that his wife and child had become victims of physical violence at
the hands of the same individuals who had threatened him in India”.
[8]
After
analyzing the panel’s decision and reviewing for a second time the transcript
of the panel’s hearing held on June 19, 2007, I cannot subscribe to the claims
of the applicant’s counsel.
[9]
The
hearing transcript clearly demonstrates that the contradictions and omissions
the panel pointed out were supported by the evidence and that the applicant had
been confronted at the hearing. These contradictions and omissions are central
to the applicant’s narrative – his flight from India caused by his lenders’
threats.
[10]
It is true
that the panel was mistaken about the date of the applicant’s father’s death,
but that mistake does not affect the merits, because the death certificate does
not indicate the cause of death. The applicant acknowledged that fact at the
hearing.
[11]
It is also
true that the panel did not specifically mention Exhibit R-7, the lawyer’s
letter. However, I cannot consider it as important as Mr. Le Brun suggests. The
letter was not discussed at the hearing – neither during the examination nor
during submissions. Repaying the debt in full – and not in instalments – cannot
have caused the threats that the applicant received, since, according to him,
the threats had started well before September 5, 2005, when he met
with his lawyer.
[12]
Finally,
Mr. Le Brun submits that the panel erred in its analysis of Dr. de Margerie’s
letters. He claims that the doctor’s reports corroborate the applicant’s
narrative with regard to the cause of his father’s death and the violence his
family had suffered at the hands of his lenders. He is relying on Ahemed v.
Minister of Citizenship and Immigration, 2006 FC 1517.
[13]
I cannot
accept this argument. The panel was very aware of the applicant’s mental
state. At the beginning of its reasons, the panel wrote:
Aware of the
claimant’s psychological fragility, the panel worked with the Tribunal Officer
and the claimant’s attorney to create a relaxed climate during the hearing
where the claimant could present his testimony as calmly as possible.
[14]
The
panel’s note 2 refers to exhibits R-12 and R-16 from Dr. de Margerie. The
transcript indicates that everything went well and no intervention was
required, except for once and not as a result of Mr. Ghotra’s state.
[15]
Ahemed, supra, does not
support the applicant’s claims. Mr. Ahemed was found to be credible, and the
objective of the psychological reports in that matter was not to corroborate
his testimony, but to act as evidence that an internal flight alternative would
be unreasonable. In the circumstances of this case, Dr. de Margerie’s letters
could not be used, based on what this Court has held consistently, to establish
that the death of the applicant’s father and the violence that his family had
suffered could be attributed to the actions of his lenders. The relevance of
the evidence did not obligate the panel to comment on exhibits R-14 and R-16,
as was the case in Gill v. The Minister of Citizenship and Immigration,
2003 FCT 656.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application for
judicial review be dismissed. No question of general importance was proposed.
“François Lemieux”
____________________________
Judge
Certified
true translation
Susan
Deichert, Reviser
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