Date: 20080416
Docket: IMM-4082-07
Citation: 2008 FC 494
Montréal, Quebec, April 16, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
GURDIAL SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant seeks judicial review under subsection 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) dated August 13, 2007, which found
him not to be a “Convention Refugee” or a “person in need of protection” by reason of his religion under sections 96 and 97 of the Act.
Facts
[2]
The
applicant is a Sikh from the town of Saiflabad in the Punjab district
of India. He alleges fear of persecution by the police on the basis that they
mistakenly believe him to be a militant.
[3]
Saiflabad
is the location of an historic Sikh temple (Gurdwara). This town also hosts a
celebration of the birthday of the 6th Guru every month and is
visited by pilgrims and other devotees. The applicant alleges that he was
arrested with three youths at the Gurdwara temple in July, 2003 while he was
explaining the history of the temple to visitors. He claims that he suffered
torture while in detention and required treatment by a private doctor. He also
claims that his release came only after payment of a bribe.
[4]
The
next interaction with police claimed by Mr. Singh took place as a result of his
ferrying visitors to and from the temple with his tractor during the
festivities in March, 2004. He alleges that two Sikh youths jumped from the
trailer and ran when he slowed down near a police post. As a result, he
claims, he was interrogated and accused of working with militants, a claim he
denies. He states that again he suffered torture and required medical
treatment on was released after the payment of a bribe. He was required to
report to the police on a monthly basis.
[5]
The
applicant claims he was then advised by a village leader to see a lawyer to institute
proceedings against the police, but the police discovered his intent and arrested
him in April 2005 and tortured him again. Again he asserts that he was freed
only after payment of a bribe and that he required medical treatment on
release.
[6]
The
applicant then asserts that he fled the Punjab to stay with
an uncle in Uttar Pradesh. He asserts that police raided his house in the
Punjab on June 1, 2005 and told his mother and his wife that militants had
confessed that he was hiding their weapons in the temple. His oldest son was
then arrested and revealed his whereabouts under duress. The police then
raided the house of the uncle with whom the applicant was staying, while he was
fortuitously out of the house at the time.
[7]
The
applicant’s uncle then refused to let him stay any longer and took him to Delhi to arrange a
meeting with a travel agent. Travel documents could not be arranged for his
wife and children. While waiting for his travel arrangements to be finalized,
Mr. Singh learned that police had again raided his uncle’s house and threatened
him with arrest and torture if he failed to inform them of any strangers
arriving at his house.
[8]
The
applicant arrived in Canada on July 21, 2005 and asserts that family members
in India have told
him that the police continue to look for him and to harass his family.
The Board’s decision
[9]
The
Board found that the applicant was neither a “Convention refugee” nor a “person
in need of protection”. This conclusion results from important weaknesses retained
by the Board against important elements of the applicant’s story and that
undermined as such his credibility.
Issues
[10]
This
case raises two issues:
a. Did the Board
err in its assessment of the evidence?
b. Did the Board
err in finding that a viable IFA existed for the applicant?
Standard of review
[11]
The
standard of review for a decision of the Board is reasonableness, except for
errors of law, which are to be assessed against a correctness standard (Dunsmuir v. New Brunswick, 2008 SCC 9).
Analysis
[12]
The
Board’s decision is based on a factual assessment of the applicant’s
credibility. In its specialized jurisdiction the Board had full competence to
appreciate the proof and the truthfulness of the applicant’s allegations.
[13]
“A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But
it is also concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.” (Dunsmuir, above, at para. 47). “Deference in
the context of the reasonableness standard therefore implies that courts will
give due consideration to the determinations of decision makers.” (Dunsmuir,
above. at para. 49).
[14]
The
applicant invites the Court to substitute its own opinion to the Board’s opinion
as to the weight and credibility to be given to his proof. The Court will
resist this invitation and limit its role to verify only if the Board’s
decision is reasonable within the concept indicated in Dunsmuir, above.
[15]
The
Board’s conclusion that the applicant was neither a “Convention refugee” nor a
“person in need of protection” results from negative fact findings that
undermined in its view the applicant’s credibility as follows:
a. Questioned as
to the time of his three arrests, torture and release by the police in
Saiflabad, the applicant referred to question 31 of his Personal Information
Form (PIF) to answer “from 1984 to today”, while his PIF indicates that the
incidents with the police occurred in July 2003, March 2004 and April 2005;
b. His
allegation of being under threat for perceived association with Sikh militants
is contradicted by objective documentary evidence mentioning the disappearance
of Sikh militancy in the Punjab;
c. The
applicant’s assertion that he intended to file a complaint against the police
on the advice of a village leader is found to be implausible and thereby
discrediting in view of the alleged circumstances and time off his various
arrests and releases;
d. Finally, the
Panel found on the basis of objective documentary evidence
that
a viable internal flight alternative (IFA) existed for Mr. Singh elsewhere in India, contrary to
his assertion.
[16]
It was within the Board’s jurisdiction to
appreciate the applicant’s credibility and to make findings on the
contradictions of his testimony when compared with objective documentary
evidence as to the actual situation in India. The Board is entitled to rely on documentary evidence in preference
to that of the applicant. There is no general obligation on the Board to point
out specifically any and all items of documentary evidence on which it relied (Zhou
v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087
(F.C.A.) (QL).
[17]
The
applicant submitted its own evidence but the Board is not bound by it and was
justified to rely to its own source of evidence judged more reliable and stating
that Sikh militancy has disappeared in the Punjab. True the
document referred in the extract cited in the decision was not included in the
Tribunal Record excerpt, but it was listed in the latest index filed of the
documentation which constitutes sufficient indication of the source of the information
relied upon by the Board on this issue, as decided by this Court in Victorov
v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No.
900 (F.C.T.D.) (QL), at para. 4.
[18]
There
is also no proof here that the Board did not consider and ignored the
documentary evidence led by the applicant, which consists largely of recent
newspaper reports showing that the police have arrested or attempted to arrest
persons accused of militancy in the Punjab. It is not because the Board makes
no mention in its decision of the applicant’s documentary evidence that it was
not considered. But the Board here simply preferred its own objective and more
reliable documentation, to the applicant’s evidence consisting mainly of
newspaper’s reports on sporadic incidents that do not necessarily describe the
general situation in the Punjab concerning the disappearance of Sikh
militancy.
[19]
The
Board being a specialized tribunal is due a great deal of deference on findings
of credibility and facts such as those involved in the present affair. Once the
Board does not believe an applicant, as is obviously the case here, it does not
necessarily have to, as the applicant suggests here, address contradictory
evidence which runs directly contrary to the core elements of such findings. The
fact that the Board does not address here the contradictory evidence does not
mean it was not considered by the Board. It only means that it preferred more
reliable evidence.
[20]
For
these reasons the Court finds that the Board did not err in failing to duly
address more explicitly the reasons for finding the applicant’s evidence as
well as his testimony to be either not relevant or trustworthy. The reasons are
implicit once the Board finds as it did here: it clearly gave no credibility to
the applicant’s evidence.
[21]
The
applicant also contends that the Board erred in finding that a viable IFA
exists for him in India. Once the applicant was found not credible on
his allegations that he was a “Convention
Refugee” the Board had no obligation
to push forward its analysis concerning the existence of a viable IFA. This
finding however resulted probably from the applicant’s testimony when he asserted
that he would have difficulties throughout India, given that
his identity cards carried the name of his village and that he spoke Punjabi.
From these details, he claimed, the police would find him and continue his
persecution notwithstanding the fact that admittedly no warrant has yet been
issued for his arrest.
[22]
The
Board dealt with this claim and stated that the documentary evidence cited to the
applicant showed that his concerns on this issue were ill-founded. The Board
addressed the issue and had no obligation to accept the applicant’s assertion
on this issue. The Board, having heard the applicant and weighed his
credibility and the truthfulness of his allegation, also stated that he did not
have the profile of a militant.
[23]
The
applicant claims that the Board erred in failing to assess his profile through
the eyes of his alleged persecutors, the police, rather than on his own
perception. He also submits that the Board failed to address evidence he
provided which directly addresses the lack of an IFA for him in India. But once
the Board concluded that the applicant was not a “Convention refugee”, it had
no obligation to pursue and make a finding on an IFA. The fact that it did make
a finding on the IFA does not help the applicant.
[24]
The
respondent counters that the burden of establishing the existence of an IFA
rests on the applicant and that it was open to the Board to find that he had
not met that onus. Likewise, it is well-established that the Board is presumed
to have taken all evidence before it into account, absent significant
indications to the contrary.
[25]
The
Court is unable to find any error here in view of the extract of the
documentary evidence cited in the decision and which “addresses all applicant’s
concerns”. The applicant failed with his burden to convince the Board of the
inexistence of a viable IFA for him in India, while on
the other hand the Court finds that there was sufficient evidence for the Board
to conclude as it did on this issue. Therefore the Court owing respect to the decision
of a specialized tribunal will not intervene on this issue.
[26]
Having
reviewed the evidence and the arguments of both parties on all issues the Court
finds that the decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” and
has not been proved to be unreasonable. For all these reasons, the Court will dismiss
the application.
[27]
The
Court agrees with the parties that there is no question of general interest to
certify.
JUDGMENT
FOR THE FOREGOING
REASONS THE COURT DISMISSES the application.
“Maurice
E. Lagacé”
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