Date: 20080401
Docket: IMM-3690-07
Citation: 2008 FC 408
Montréal, Quebec, the 1st day of April 2008
Present:
the Honourable Mr. Justice Maurice E. Lagacé
BETWEEN:
JASWANT
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Jaswant
Singh (the applicant) filed an application for judicial review of a decision by
the Refugee Protection Division of the Immigration and Refugee Board (the
panel) which concluded that the applicant was neither a “Convention refugee”
nor a “person in need of protection” within the meaning of sections 96 and 97
of the Immigration and Refugee and Protection Act (the Act).
[2]
The
Minister of Citizenship and Immigration (the Minister) opposed the application.
Issue
[3]
Did the panel
make an unreasonable error in its negative assessment of the applicant’s
credibility?
Facts
[4]
The
applicant is 49 years old and a citizen of India, and he cited problems which occurred in
his country of origin between November 1986 and July 1997 and allegedly
resulted from the fact that he is a baptized Sikh. He said he was arrested
several times and tortured by the police because he was suspected of
maintaining links with and assisting the cause of militant Sikhs and promoting
the independence of the Punjab.
[5]
The
applicant left India in July 1997 for the U.S., where he filed a refugee status
application that was denied. When the U.S.
authorities threatened to send him back to his country of origin, he finally
arrived in Canada in August 2005 and made a
protection application.
[6]
Despite
the time which has elapsed since his flight from India, the applicant still maintains that the
police there have not forgotten him and continue to harass his family, so much
so that his life would still be in danger if he were to return to the country
of origin.
Panel’s decision
[7]
After
considering and commenting on the main points in the evidence and noting the
applicant’s contradictions between his statements in the Personal Information
Form (PIF), his testimony to the immigration officer, his testimony at the
hearing and the documentary evidence, the panel found his account to be neither
credible nor consistent with the documentary evidence. Consequently, it did not
accept the applicant’s allegations that sending him back to the country of
origin would subject him to substantial present and personal risk of torture or
a threat to his life and so dismissed his application.
Parties’ allegations
[8]
The
applicant alleged that the panel made an incomplete analysis of the evidence
and drew conclusions contrary to the evidence. In particular, he contended that
the conclusion on his credibility resulted from errors in the assessment of the
evidence that were significant enough to warrant this Court’s intervention.
[9]
For his
part, the Minister maintained that the conclusions drawn by the panel from the
evidence were reasonable and were within its jurisdiction and its expertise to
analyse and assess, and consequently the Minister saw no valid ground justifying
this Court’s intervention to overturn the panel’s decision.
Standard of review
[10]
The
Supreme Court’s recent decision in Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir),
has meant that judicial review of the decisions of administrative tribunals is
now subject only to two standards: that of “correctness” and that of
“reasonableness”. That case also urged courts once again to treat the decisions
of specialized administrative tribunals such as the panel with deference, as
they have a certain expertise in cases within their jurisdiction.
[11]
The
standard of “reasonableness” applies to the case at bar and does not open the
door to greater intervention, despite the applicant’s wishes. As this Court
noted in Navarro v. Canada (Minister of Citizenship and
Immigration),
2008 FC 358, [TRANSLATION] “this is not the meaning and scope that should be
given to Dunsmuir: quite the contrary”.
[12]
The
Court must always consider whether the impugned decision is reasonable in view
of the “justification for the decision” and “whether the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, supra, para. 47; Navarro, supra, para.
13).
[13]
Within
this standard of review, can the Court conclude that the panel erred when it
decided that the applicant was neither a “Convention refugee” nor a “person in
need of protection” within the meaning of the Act?
Analysis
[14]
Based on
the fact that the panel did not comment in its decision on certain parts of the
evidence which the applicant considered more important than those used, he
maintained that the panel had not considered all the evidence it should
consider and that its decision was not reasonable.
[15]
This
argument by the applicant disregards the presumption that the panel has
considered all the evidence before it (Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL)). It also
overlooks the fact that when the panel concludes that a refugee status claimant
is not credible it does not have a duty to explain the reasons why it attaches
no evidentiary value to the documents supporting the allegations which it has
found to be not credible (Ahmad v. Canada (Minister of Citizenship and
Immigration), 2003 FCTD 471, per Rouleau J., at para. 26).
[16]
In trying
to persuade the Court that the panel erred in the negative inferences which it
drew from the evidence as to his credibility, the applicant in fact sought to
justify parts of the testimony which the panel rejected because it found them unreliable
or unsatisfactory. It should be borne in mind that the applicant had an
opportunity to present his explanations to the panel in full; but unfortunately
for him, the panel did not find them to be credible. It is not this Court’s
function to repeat that exercise. The panel has the benefit of relying on its
expertise, and especially of hearing the applicant and his explanations, which
certainly puts it in a better position than this Court to determine his
credibility. It is not this Court’s function to do the panel’s work, but simply
to determine whether its decision was unreasonable in the sense indicated by Dunsmuir,
supra.
[17]
When the
applicant argues that the panel’s decision passed over evidence which he
considered important or that the decision looked only at part of the evidence
rather than some other part which he considered more important, he is quite
simply asking this Court to reassess the evidence submitted in support of the
refugee status claim and substitute its opinion for that of the panel. Such an
approach is prohibited in a judicial review proceeding (Chen v. Canada (Minister
of Citizenship and Immigration), [1999] F.C.J. No. 551 (C.A.) (QL), at para.
5, applying Canadian Union of Public Employees, Local 301 v. City of Montréal,
[1997] 1 S.C.R. 793).
[18]
The
applicant certainly would have preferred the panel to give greater emphasis to
a different passage from a particular document (section 8.4.2, instead of 8.6,
of the “Report on Fact-Finding Mission to Punjab”). However, such an argument
is not a valid ground for judicial review since it is well settled that the
panel does not in principle have any duty to mention all the evidence submitted
by the parties (Florea, supra). This principle is all the more
applicable when the panel decides, as it did here, that the applicant’s account
lacks credibility (Ahmad, supra; Sheikh v. Canada (Minister of
Employment and Immigration), [1990] 3 F.C. 238 (C.A.)).
[19]
When an
applicant submits documentary evidence to the decision-maker, he or she may
expect that the latter will accept it in its entirety or only in part, or
reject it outright. As the decision-maker, it is the panel’s function here to
select and use the parts of the evidence which it considers most persuasive as
a basis for its conclusions. If subsequently, as in the case at bar, this
choice does not suit the applicant because it is harmful to his case, that is
not a valid ground for reviewing the decision.
[20]
Finally,
contrary to what was alleged by the applicant, the contradictions noted by the
panel do not in any way appear to be based on errors. On the contrary, they
clearly result from the grey areas and variations between the applicant’s
statements in his PIF, the statements made to the immigration officer and his
testimony at the hearing. In the Court’s view, the evidence justified the panel
concluding that the applicant lacked credibility and finding that he was
neither a “Convention refugee” nor a “person in need of protection” within the
meaning of the Act.
[21]
For these
reasons, the applicant’s application must be dismissed. No question was
submitted for certification and the Court agrees that this case raises no
question of general importance.
JUDGMENT
FOR THESE REASONS, THE COURT:
DISMISSES the application for judicial
review.
“Maurice
E. Lagacé”
Certified
true translation
Brian
McCordick, Translator
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