Date: 20080115
Docket: IMM-7574-05
Citation: 2008 FC 47
Ottawa, Ontario, January 15,
2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
BALJINDER KAUR VIRK
JOBANDEEP KAUR VIRK
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated November 22,
2005 concluding that the applicants are neither Convention refugees nor persons
in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27.
[2]
In
this case, counsel for the applicants at the hearing abandoned the “reverse
order of questioning” argument upon which I suspect leave was probably granted.
Instead counsel sought to overturn the Board’s decision on the credibility
findings notwithstanding that the evidence demonstrated clear lies either in
the material produced by the applicants or in the viva voce testimony of
the principal applicant at the hearing. At the conclusion of the hearing I
advised the parties that I would be dismissing the application and would issue
reasons, which follow.
FACTS
[3]
The
principal applicant, Baljinder Kaur Virk, and her daughter, Jobandeep Kaur
Virk, arrived in Canada in March 2005. Both applicants are citizens of India and seek
refugee protection because they fear persecution and risk to their lives in India at the hands
of the Indian police.
[4]
The
principal applicant claims to have been married in an arranged marriage on
April 13, 2000. She states in her Personal Information Form (PIF) that shortly
after her marriage she became aware that her husband, Rattandeep Singh Virk, was
a wanted terrorist involved in the Khalistani movement, and had been charged
with crimes. After becoming pregnant, the principal applicant states that the
Indian police raided the farm house of her husband’s family in an attempt to apprehend
him. The principal applicant states that she last saw her husband shortly
thereafter, and that she was in hiding ever since.
[5]
While
in hiding, the principal applicant lived in constant fear that the police would
find her and beat, torture, or kill her in an attempt to uncover the
whereabouts of her husband. She claims her daughter was born in February 2002
while she was in hiding. The principal applicant states that while she did not
know her husband’s whereabouts or involvement in the Khalistani movement, she
believed it was too dangerous to tell this to the Indian police.
[6]
The
applicants left India with the help of an agent. Upon arriving in Canada, the
principal applicant told immigration officials that it was her brother-in-law, and
not her husband, who the police were seeking. She claims to have done this
because of a fear that, if truthful, she would have been sent back to India.
Decision under review
[7]
On
November 22, 2005, the Board held that the applicants were not Convention
refugees or persons in need of protection. The Board’s central finding was that
the principal applicant failed to advance sufficient credible and trustworthy
evidence.
[8]
The
Board found “key inconsistencies” between the evidence provided to immigration
officials at the port of entry by the applicant, and that provided in her PIF
narrative and her oral testimony before the Board. The Board did not accept as
plausible the principal applicant’s explanation for the inconsistencies, and
made other findings, including:
1.
that
it was implausible that the authorities would have any interest in the
principal applicant given her evidence that she was unaware of her husband’s
activities or the group with which he was associated because the sharing of
such information between spouses is not something that occurs in her culture;
2.
that
the principal applicant submitted a news article in support of her claim that
actually contradicted her own testimony;
3.
that
the witness who testified on the applicants’ behalf conceded that he never saw
the principal applicant’s face in India because the one time they met, she was
wearing a veil;
4.
that
the ration card submitted as proof of marriage was not trustworthy evidence as
to her identity as Rattandeep Singh Virk’s wife;
5.
that
the letter from the Khalra Mission submitted in support of the applicants’
claim contained “clearly false” information, which demonstrates a general lack
of credibility as to the entire claim; and
6.
that
it is not plausible that the principal applicant would have a “relatively large
two-day wedding” if her husband was an escaped fugitive at the time.
ISSUES
[9]
The
applicants raised two issues in their written memorandum:
1.
whether
the Board breached the rules of natural justice and procedural fairness by
denying the applicants’ motion regarding the “reverse order of questioning”;
and
2.
whether
the Board erred by ignoring and/or misinterpreting the evidence when it
determined that the applicants and their identity lacked credibility?
STANDARD OF REVIEW
[10]
The
first issue concerns whether the Board failed to observe the principles of
procedural fairness and natural justice. In that regard, a reviewing court must
“examine the specific circumstances of the case and determine whether the
[decision maker] in question adhered to the rules of natural justice and
procedural fairness”: Thamotharem v. Canada (Minister of
Citizenship and Immigration), 2006 FC 16, [2006] 3 F.C.R. 168 at
paragraph 15. The standard of review in relation to such a decision is
correctness. In the event that a breach of natural justice or procedural
fairness is found, no deference is due, and the decision will be set aside: Sketchley
v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392.
[11]
The
second issue concerns the Board’s factual findings and credibility
determinations, matters within the Board’s special expertise. Such findings
will only be set aside if patently unreasonable: Aguebor v. Canada (Minister of
Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). In Law Society of New Brunswick
v. Ryan, 2003
SCC 20, [2003] 1 S.C.R. 247, the Supreme Court of Canada held that a patently unreasonable
finding is one that is “clearly irrational” or “evidently not in
accordance with reason.”
ANALYSIS
Issue No. 1: Did the
Board breach the rules of natural justice and procedural fairness by denying
the applicants’ motion regarding the “reverse order of questioning”?
[12]
At
the hearing, the applicants abandoned the argument about the “reverse the order
of questioning” pursuant to the Board’s Guideline 7, which sets out a uniform
procedure where the Board questions first, but permits questioning first by the
applicant’s counsel in “exceptional circumstances” where fairness suggests it
is required.
[13]
The Court was surprised the applicants’ counsel
abandoned this issue because it probably precipitated the leave granted by
Madam Justice Carolyn Layden-Stevenson. Based on the written material before
the Court I did not think that “exceptional circumstances” existed that would
justify reversing the order of questioning in the case at bar. Further, the questioning
by the Board did not result in a breach of procedural fairness or natural
justice. Accordingly, I was expecting that applicants’ counsel would have
difficulty making their case on this issue.
Issue No. 2: Did the
Board err by ignoring and/or misinterpreting the evidence when it determined
that the applicants and their identity lacked credibility?
[14]
The
Board’s central finding was that the principal applicant failed to establish
her identity as the wife of Rattandeep Singh Virk. The applicants argue that the
Board erred in misinterpreting and ignoring the evidence and explanations
offered by the principal applicant and, as a result, made “unfounded
inferences” that were patently unreasonable.
[15]
The
standard of patent unreasonableness is significant and places a heavy burden on
the applicants to rebut the Board’s finding that the principal applicant was not
credible. As Mr. Justice Joyal stated in Culinescu v. Canada (Minister of
Citizenship and Immigration) (1997), 136 F.T.R. 241 at paragraph 13:
¶ 13 It
is well established that credibility is a question of fact that is entirely
within the jurisdiction of the Board as the trier of fact. The panel is free to
find that an applicant is untrustworthy on the basis of implausibilities in his
or her testimony, provided that its findings are not unreasonable and that its
reasons are set out in “clear and unmistakable terms”. … Furthermore, the
burden on the applicants to rebut the Board’s finding that they lack
credibility appears to be very heavy.
[Footnotes omitted.]
[16]
In
reaching its decision, the Board relied on inconsistencies in the applicants’ information
provided at the port of entry, in the principal applicant’s PIF, and in her
oral testimony before the Board. The Board also did not accept the principal
applicant’s explanation for such inconsistencies; namely, that she was
uneducated, illiterate and merely relying on the advice of her agent.
[17]
The
applicants argue that the Board’s implausibility finding that the principal
applicant was of no interest to the police was unrelated to the evidence and
was, accordingly, in error. They further submit that given the principal
applicant’s background as uneducated, there was no other plausible explanation
open to the Board except that the information provided at the port of entry was
made according to the advice of the applicants’ agent.
[18]
However, it is clear from the record that the
Board’s decision was based on a number of considerations in addition to the
inconsistent evidence of the principal applicant, and that many of these
considerations went unchallenged. Among these was the letter from the Khalra
Mission Committee, which was filed by Mr. Waldman, the applicants’ counsel in
support of the applicants’ claim. This letter was reproduced by the Board in
its decision. The letter states that Baljinder Kaur is the wife of Rattandeep
Singh and should be granted political asylum in Canada because Mr. Singh’s wife has been harassed by police over
information concerning her husband. This is false information and a blatant lie.
It warrants exposure in detail to ensure a letter from this group is known in
the future to possibly lack credibility. I will review the details below.
First, the letter
from the applicants’ counsel (Mr. Lorne Waldman)
[19]
On July 25, 2005 Mr. Waldman wrote the Board
enclosing the letter from Khalra Mission Committee, which Mr. Waldman said
would be used at the hearing with other documents. In the letter Mr. Waldman
requested an adjournment of the refugee hearing because he had a time conflict,
and said that “her case involves some sensitive issues and I feel it is
important for me to represent her”. Mr. Waldman did represent the applicants at
the hearing before the Board. At the hearing before the Court, Mr. Waldman’s
associate appeared as counsel for the applicants.
Second, the
letter from the Khalra Mission Committee
[20]
This letter from the General Secretary of the
Khalra Mission Committee in Punjab, India dated July 17, 2005 is addressed “To Whom It May Concern”.
The General Secretary of the Committee writes that he declares that the
principal applicant was harassed by the Punjab police who were looking for her husband. The letter states:
I Balwinder
Singh Cabhal General Secretary Khalra Mission committee is hear by declare that
S. Malik Singh R/o Tulchri, P.S. Ismallabad Distt. Kuruksheter is permanent
resident of the above said Village. Her Daughter Baljinder Daur is married to
Ratandip Singh S/o Jagir Singh of vill.Rohd P.S. Safido mado Mandi, Distt.
Jeend (HR). Police of Punjab and Haryana used to torture & harass Ratandip
Singh. In fear of death he left the village. His Where about is unknown then
police used to harase Baljinder Kaur and ask about her husband. At last in
fear of police harassment she left India and went to Canada.
(Emphasis added)
So I request Canadian Govt. that her life is in danger if she return
to India please grant her
political asylum and oblidge.
Balwinder Singh
Chabhal
General
Secretary
Kharla Mission
Committee
General
Secretary
Kharla Mission
Committee
[Typed as per
original photocopy with errors and/or omissions]
Third,
the evidence at the Board hearing
[21]
In the evidence before the Board the presiding
member asks the principal applicant whether she knows anything about this letter.
The principal applicant replies at page 53 of the transcript (page 430 of the
Certified Tribunal Record):
CLAIMANT: I
don’t know about it (the letter).
The Claimant then
states:
CLAIMANT: I
can’t remember this letter, where did this come from.
The
Presiding Member states:
PRESIDING MEMBER: And what this
letter says here, that you don’t know about, is that the police would harass
you and ask you about your husband. But meanwhile you told me you had no direct
contact with the police at all.
CLAIMANT: Yes.
PRESIDING MEMBER: So, do you
have an explanation about why you have this letter saying this, but meanwhile
you’ve told me today you never spoke to the police on the phone, you never had
any direct contact to them?
CLAIMANT: The police never
talked to me. I was hiding myself from the police all the time.
Accordingly,
the viva voce evidence unequivocally states that the principal
applicant:
1.
never saw
this letter or knew of it; and
2.
the letter
is a lie with respect to the police harassing the principal applicant.
Fourth, the
Board decision dated November 22, 2005
[22]
The Presiding Board Member, Diane Smith, held at
page 5, of the decision:
The adult claimant testified that she
never had any contact with anyone in the Khalistani movement and that the
movement had to do with the state of Punjab and that she was from the state of
Haryana. She stated that she had never had any direct contact with the police.
She was unaware of the existence of the letter from the Khalra Mission
Committee filed in support of her claim and of the details in this letter.
The
Board then sets out the full content of this letter.
[23]
Then at page 9 of the decision the Presiding
Member held:
The panel finds the production of a photocopied letter from the
Khalra Mission Committee of Punjab State of July 14, 2005, which contains
clearly false information such as “police used to harass Baljinder Kaur and ask
about her husband,” to demonstrate a lack of credibility as to the entire claim
and as to the identity document produced on behalf of the adult claimant.
The letter is from the Khalra Mission Committee, in Punjab state,
not the Khalistan Commando Force, the organization Rattandeep was associated
with, with its headquarters in Pakistan. Nor is this letter from an organization in the adult claimant’s
home state (Haryana). No evidence was offered at the hearing as to any
connection between the Khalra Mission Committee (the source of the letter) and
the Khalistan Commando Force (the organization Rattandeep was a member of).
Fifth,
the Court’s comment with respect to this letter
[24]
This letter, submitted by the applicants’
counsel to the Board, is a blatant lie. The Court is surprised that counsel
would submit such a letter never shown to, or known of, by the principal
applicant, and which the principal applicant says is a lie. Obviously, counsel
for the principal applicant was taking instructions from someone other than the
principal applicant in presenting this letter and refugee claim.
[25]
This letter is one of several serious inconsistencies
in the evidence. The Court had no hesitation in dismissing the application from
the bench. This was particularly so since the issue of natural justice
(“reverse order of questioning”), upon which I presume leave was granted, was
abandoned by counsel at the hearing when I questioned counsel.
A newspaper
article
[26]
Other uncontradicted evidence relied on by the
Board included newspaper articles provided by the applicants’ counsel that
contradict the principal applicant’s evidence about the date of her alleged
marriage and her knowledge and involvement in her husband’s terrorist
activities. Either the newspaper article is a lie or the applicant’s evidence
is a lie.
The ration
card
[27]
The
applicants submitted that in assessing the principal applicant’s identity
document, the ration card, the Board erred in failing to provide reasons for
rejecting the document as insufficient, and if the Board had concerns over the document’s
authenticity, then the Board should have sought verification from immigration
officials.
[28]
To
discredit a document’s authenticity, the Board can make a common sense
inferences regarding whether the document constitutes sufficient evidence of
identity. As Mr. Justice Marcel Joyal stated in Culinescu, above, at
paragraphs 14-15:
¶ 14 ... [The
applicants] submit that it was the Board’s duty to have the documents they
filed in evidence studied by experts, especially if it doubted their
authenticity.
¶ 15 The
Board had no such duty. It is enough that there be sufficient evidence before
it to cast doubt on the authenticity of the order to stand trial to find that
the applicants’ testimony was implausible. …
[Footnote omitted.]
The Court has
examined the translation of the ration card and the ration card itself. This evidence
is questionable for many reasons which I presented to the applicants’ counsel. In
my view, the Board’s conclusion that the ration card was not sufficient
evidence to establish identity was not patently unreasonable.
[29]
Further,
the Board’s reference to the ration card was not central to its finding that
the principal applicant was not credible. It served as additional evidence regarding
the principal applicant’s lack of credibility.
[30]
For
all of these reasons this application will be dismissed. Both parties stated
that this application did not raise any question which should be certified. I
agree.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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