Date: 20080922
Docket: IMM-1385-08
Citation: 2008 FC 1053
OTTAWA, Ontario, September 22, 2008
PRESENT: The Honourable Max M. Teitelbaum
BETWEEN:
BHUPINDER SINGH LUTHRA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Luthra is a Sikh citizen of the Punjab region of India. He claims
to have been arrested and abused by Indian police on two occasions because they
wrongly believed him to have links to Sikh militants. His claim for refugee
protection was denied on February 18, 2008.
[2]
The
applicant claims that the police learned that a well-known narcotics and
weapons smuggler was visiting his cousin. They arrested the cousin in July
2003 and tortured him, but he was released after the payment of a bribe. The
cousin left for another region of India and, when the police
asked the applicant where his cousin was, the applicant told them he was in Dubai.
[3]
In
September 2004, the police arrested the smuggler. During interrogation, he
told the police that he had left some of the smuggled weapons with Mr. Luthra’s
cousin. The police returned to the applicant’s residence and, when they did
not find his cousin there, arrested him. Mr. Luthra claims that he was
beaten and questioned at the police station. As a result of the abuse, he told
them where his cousin was and they arrested him. The applicant was released on
payment of a bribe, but his cousin was not. Several months later, his cousin
died. The police claimed it was suicide.
[4]
Mr.
Luthra decided to consult a lawyer about the treatment he had received from the
police. After doing so, he was arrested on March 7, 2005 and was again
questioned and beaten. Again he was released after a bribe was paid. After
this, the applicant arranged with an agent to flee to Canada on a
visitor’s visa obtained under false pretences.
[5]
The
Refugee Protection Division (RPD) of the Immigration and Refugee Board found
the applicant and his allegations not to be credible and dismissed his claim. The
Board found it not credible that:
a. The applicant
would have been able to leave India on his own passport if he were being sought
by the police for failing to report on a monthly basis over a six month period,
as an emigration check was done, proven by a ministry stamp and signature;
b. The
applicant’s wife and children would remain close to where they originally lived
if they were at risk;
c. The applicant
would lie to officials about whether his brother lived in Canada when asked,
which false information caused the RPD to find him not to be trustworthy;
d. The medical
reports had suspicious dates and no security features such as telephone numbers
or addresses and were thus found to be false;
e. Mr. Luthra
had not obtained a letter from the lawyer to whom he was taking his complaint,
especially as he was advised by counsel who would have known that the document
was significant;
The RPD also found that the applicant had
not provided clear and convincing evidence to rebut the presumption that Indian
authorities would be willing and able to protect him.
[6]
The
applicant alleges that the RPD erred in its credibility findings and in its
analysis of the state protection available to him.
[7]
The
respondent counters that the RPD provided clear and cogent reasons for not
believing Mr. Luthra’s story and that its conclusions were reasonably open to
it. Furthermore, counsel submits that there was no error in the finding that
the presumption of state protection had not been rebutted.
[8]
Credibility
findings have long been recognized by the Court as being findings of fact and
therefore well within the expertise of the RPD. As such, deference is owed to
the tribunal for its decision which will be overturned only if unreasonable as
set out in paragraph 18.1(4)(d) of the Federal Courts Act. The
applicant’s contention that the Panel member misunderstood the requirements for
a finding on state protection raises an issue of law and is thus reviewable on
a correctness standard.
[9]
The
applicant submits that the RPD erred in making adverse findings based on the
continued presence of his wife and children in India, as he had
not claimed that they were at risk. He further argues that his failure to
disclose his brother’s location at the port of entry is irrelevant to his claim
and thus cannot be the basis of a credibility finding. He also contends that
the Panel member’s findings regarding the medical letters were absurd and based
on a misunderstanding of the evidence. Finally, he argues that there was
nothing in the evidence to suggest that his explanation of his meeting with the
lawyer was not credible and the adverse inference drawn by the RPD on the basis
of his failure to provide a letter from the lawyer was unreasonable.
[10]
Counsel
for he respondent notes that the first three reasons given by the RPD for
finding Mr. Luthra not to be credible were not contested by him. She
submits that he did state at the hearing that his wife and children could be at
risk, but concedes that this is not the strongest of the credibility findings
made by the Panel. The respondent argues that Mr. Luthra did not simply fail
to disclose his brother’s presence in Canada but directly lied at
the intake interview. His failure to provide trustworthy evidence and obvious
willingness to misstate the truth were the basis of the finding of incredibility.
Counsel contends that the Panel member’s findings about the medical letters
were reasonably open to her and that she did not misunderstand the evidence.
Finally, she submits that Mr. Luthra’s failure to produce corroborative
evidence when it could reasonably be expected is a valid reason to find him not
to be credible.
[11]
Having
reviewed the evidence and the transcript of the hearing, I agree with the
applicant that he did not claim that his wife and children were at risk. In
the passage to which the respondent refers, Mr. Luthra merely agreed that the
police could harass his wife and children about where he was. This is not
equivalent to claiming that they were at risk, such that the failure to remove
them from danger would reasonably ground a finding that the applicant’s claim
of risk was not credible. That said, the other credibility findings were
reasonably open to the Panel member on the basis of the evidence before her and
I cannot see that her decision as a whole should be vacated.
[12]
Likewise,
the applicant’s assertion that the RPD misunderstood the legal test for state
protection is not well founded. Mr. Luthra submits that the Panel member
failed to appreciate that there is no requirement to seek state protection when
the agents of persecution are the police, themselves agents of the state. For
this proposition, he cites Zhuravlvev v. Canada (Minister of
Citizenship and Immigration), [2000] 4 F.C. 3, quoting from paragraph
19 as follows: “Where the state is shown to be the agent of persecution, one
need not inquire into the extent or effectiveness of state protection; it is,
by definition, absent.”
[13]
Two
problems arise from this contention. First, it is clear that the RPD did not
find that the state was shown to be the agent of persecution as a result of its
credibility findings, as discussed above. Second, however, it is not automatic
that persecution by one particular agent of the state will result in the
absence of state protection. As noted by Justice Simon Nöel at paragraph 10 of
Martinez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 343, a tribunal should not jump
to the conclusion that the entire state is the persecutor on the basis of the
actions of a few. Where the alleged persecutors are confined to a specific
location or are rogue elements acting outside their jurisdiction, the tribunal
must still assess whether it was objectively reasonable for the claimant to
have sought the protection of the state.
[14]
In
the instant case, the Panel member considered that there were remedies
available to the applicant against his alleged persecutors in India. She
therefore found on the basis of his failure to seek the protection of his own
country that he had not rebutted the presumption of state protection. This is
not a reviewable error.
[15]
I
am satisfied that the panel member had sufficient evidence before him to
determine that the applicant lacked credibility.
[16]
The
present application for judicial review is dismissed. No question of general
importance was submitted for certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application is
dismissed.
"Max M. Teitelbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1385-08
STYLE OF CAUSE: BHUPINDER
SINGH LUTHRA v. M.C.I.
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: September
3, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: TEITELBAUM D.J.
DATED: September
22, 2008
APPEARANCES:
|
Lorne Waldman
|
FOR THE APPLICANT
|
|
Bridget A.
O’Leary
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Waldman &
Associates
Toronto,
Ontario
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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