Date:
20130228
Docket:
IMM-7020-12
Citation:
2013 FC 202
Montreal, Quebec,
February 28, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
|
|
INDERJEET SINGH
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant seeks judicial review of a decision by the Refugee Protection
Division [RPD] of the Immigration and Refugee Board, wherein it was determined
that he is not a refugee or person in need of protection under section 96 and
subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA]. The Applicant argues that (i) the RPD’s credibility
analysis is unreasonable given the medical and affidavit evidence he submitted;
(ii) no major omissions, contradictions, or implausibilities arose from the
record; and (iii) the country condition evidence demonstrated that he was at
risk.
II. Judicial Procedure
[2]
This
is an application under subsection 72(1) of the IRPA for judicial review
of and RPD decision, dated June 18, 2012.
III. Background
[3]
The
Applicant, a citizen of India, was born in 1983. In India, he was a Sikh
preacher living in Karnal, Haryana province.
[4]
In
2007, the Applicant claims he publicly refuted claims of the Dera Sucha Suda’s [DSS] leader and that he participated in peaceful demonstrations against the
DSS.
[5]
On
June 5, 2007, the Applicant was allegedly arrested, detained, and tortured on
accusations of associating with Sikh terrorists and provoking violence.
[6]
On
June 8, 2007, the Applicant was released because village officials intervened
and his father paid a bribe.
[7]
On
January 20, 2008, the Applicant was allegedly arrested, detained, and tortured
on accusations of working with terrorists conspiring to attack DSS. He claims
he was beaten, his legs were stretched, and a heavy roller was rolled over his
thighs. He was released after officials intervened, his father paid a bribe, he
signed a few blank pages, and he promised not to preach against DSS and to
report to police monthly.
[8]
The
Applicant states that these accusations were made by authorities but were not
official and that criminal charges were never made.
[9]
On
February 18, 2008, the Applicant left India on a Canadian visa he obtained in
November 2007. On July 7, 2008, he applied for refugee protection.
[10]
In
March, July, and September 2008, the police allegedly visited the Applicant’s
home in India, harassed his family, and stated that he was training as a
terrorist in Canada.
[11]
On
July 19, 2008, an immigration officer spoke with the Applicant [intake
interview].
[12]
In
March 2012, the Applicant amended his Personal Information Form [PIF] to
indicate that he left India with the assistance of an agent.
IV. Decision under Review
[13]
The
RPD did not find credible that the Applicant was arrested, detained, and
tortured on accusations of terrorism. The RPD questioned the Applicant’s intake
interview statements that authorities were not seeking him, he was only accused
of provoking an anti-government uprising at his first arrest, and police
threatened him with death. The RPD determined that the first two allegations
were inconsistent with his testimony that authorities continued to seek him in
India and that he was accused of associating with Sikh terrorists at both
arrests. The RPD found that failing to discuss the police death threats in his
PIF impugned his credibility since he stated at his intake interview that these
threats compelled him to seek protection.
[14]
The
RPD rejected the Applicant’s explanation that he did not mention ongoing police
searches for him out of confusion, reasoning that he was specifically
questioned on this at the intake interview and that police persecution was the
core of his claim. It was also implausible that he would not mention
accusations of terrorist involvement, even if not specifically questioned on
this at the intake interview. The RPD also rejected the Applicant’s attempt to
attribute the omission of police death threats in his PIF to his lawyer because
he also failed to spontaneously mention these threats at the hearing.
[15]
The
RPD made a negative general credibility finding because the Applicant: (i)
amended his PIF to include information known to him when he first signed it in
July 2008; (ii) failed to mention in his PIF on July 2008 that he left India
with the assistance of an agent; (iii) did not attempt to change his address
after his first release on June 8, 2007 even though he was allegedly tortured;
(iv) did not mention in his PIF or testify spontaneously at his RPD
hearing that he hid in Delhi after his second release on January 22, 2008; (v)
claimed he preached in Karnal until fleeing India even though he was allegedly
hiding in Delhi after his second release and suspected of conspiring to kill the
Dera Sucha Suda leader or of having ties to terrorists; (vi) celebrated an
elaborate marriage shortly after allegedly suffering physically-rigorous
torture notwithstanding the Applicant’s explanation that his culture demands
that planned weddings occur regardless of other circumstances; (vii) would not
likely have been released if suspected of links to terrorists; (viii) testified
that authorities did not question him on his trips abroad to visit other Sikhs
though he was accused of links to terrorists and recruiting youth terrorism;
(ix) attempted to come to Canada on a worker’s visa in May 2007 and again in
January 2008.
[16]
The
RPD determined that the Applicant lacked subjective fear since he delayed
applying for refugee protection for five months. The RPD rejected his
attribution of this delay to his penniless state and reliance on the advice of
others. The RPD did not find credible his explanation that he did not contact a
lawyer, Canadian authorities, community associations, or an immigration
consultant because he had relied on the people he was living with for advice.
The RPD reasoned that, had he actually been tortured, he would have researched
refugee protection and applied at the first opportunity.
[17]
After
reviewing the country condition evidence, the RPD noted implausibilities in the
Applicant’s allegations. First, the Applicant entered Canada with a passport,
while evidence suggests that there are control mechanisms preventing persons
who are threats to national security from leaving India. While his passport was
issued before he was allegedly suspected of associating with terrorists, the
RPD did not consider it credible that the passport had not been confiscated or
that he would have been able to pass security checkpoints upon leaving India.
Second, it was implausible that he was released at the intervention of village
officials if suspected of associating with terrorists. The RPD referred to
documentation showing that the Indian government responds promptly to threats
to national security. Third, if police had forced him to sign blank sheets of
paper, they could have used these to produce fraudulent confessions. Given
evidence on police impunity in India, this would permit them to detain and
convict him.
[18]
In
light of its credibility concerns, the RPD did not give any weight to (i) a
letter from the president of the gurdwara in India where the Applicant was
working [Letter]; (ii) affidavits written by a city commissioner who allegedly
assisted in securubg his release from detention in June 2007 and January 2008
[Kaur Affidavits]; (iii) a psychological report describing his anxiety,
depression and suicidal tendencies as a result of torture; and (iv) a letter
from the Australian courts in relation to a Mr. Singh, which the Applicant
alleges shows that his brother left India due to problems with police.
[19]
The
RPD also gave little weight to a medical report from a family doctor on the
Applicant’s psychological and physical condition. The RPD reasoned that it
granted his request to present a medical assessment establishing torture with a
heavy roller on the condition that only evidence from a specialist able to
diagnose the specific tissue damage arising from this method of torture would
be sufficient. The RPD supported its conclusion by noting that this medical
report was based mostly on the Applicant’s account of his experience in India,
did not consist of a rigorous or scientific examination, was not based on
x-rays, and did not identify the origin of scars on his body. The RPD drew
particular attention to the following statement in the medical report:
“According to [the Applicant,] the majority of soft tissue swelling and bruises
of the body that were present in the past have absorbed and disappeared over
time and that is why they are not visible today” (Decision at para 114;
Certified Tribunal Record [CTR] at p 727). The RPD further reasoned that,
although the medical report determined that the Applicant’s overall condition
was within normal limits, the documentary evidence demonstrates that persons
subjected to torture by heavy rolling endure permanent damage to joints and
muscles.
V. Issues
[20]
(1)
Was the RPD’s credibility analysis reasonable?
(2) Was the
RPD’s analysis of the country condition evidence reasonable?
VI. Relevant Legislative
Provisions
[21]
The
following legislative provisions of the IRPA are relevant:
|
Convention
refugee
96. A Convention
refugee is a person who, by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a particular social
group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country
of nationality, is outside the country of their former habitual residence and
is unable or, by reason of that fear, unwilling to return to that country.
Person
in need of protection
97. (1) A person
in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care.
Person
in need of protection
(2) A person in Canada who is a
member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
|
Définition
de « réfugié »
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité
de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
Personne
à protéger
(2) A également qualité de
personne à protéger la personne qui se trouve au Canada et fait partie d’une
catégorie de personnes auxquelles est reconnu par règlement le besoin de
protection.
|
VII. Position of the Parties
[22]
The
Applicant submits that the RPD found that the Sikh are not persecuted in India. Relying on country condition evidence and jurisprudence, he asserts that the Sikh
are subject to widespread persecution and police impunity in India.
[23]
The
Applicant challenges the RPD’s credibility finding and claims that it ignored
evidence that he was subject to police impunity, terror, and torture in India.
His account was plausible, given country condition evidence on police impunity
and torture, uncontested evidence that he is a Sikh preacher, protests and
violence in the Haryana province related to the DSS, and anti-Sikh violence in
Punjab and India.
[24]
In
the Applicant’s submission, the RPD’s analysis of any inconsistencies and
implausibilities in his testimony, PIF, and intake interview was unreasonable.
The Applicant asserts that his intake interview statements do not contradict
his testimony or PIF and that it was unreasonable to conclude that he would not
be released from detention if accused of terrorism or, if tortured, he would
have changed his address.
[25]
The
Applicant also takes the position that the affidavits and the medical reports
that he submitted support his allegations that he was tortured by police. The
Applicant contends it is unreasonable to give little weight to psychological
and medical reports because they were premised on his own account of torture.
The probative value of his medical evidence outweighed the minor omissions and
inconsistencies in the record.
[26]
The
Respondent counters that the RPD’s credibility findings were reasonable on the
basis of the omissions, contradictions, and implausibilities in the record.
According to the Respondent, the credibility assessment identified inconsistent
and implausible elements in the evidence while relying on the panel member’s
common sense, rationality, and understanding of human behaviour. The RPD could reasonably
rely on intake interview statements, omissions and amendments to the PIF.
[27]
The
Respondent further contends that the RPD could reasonably consider the delay in
applying for refugee protection and subjective fear when assessing his
credibility.
[28]
The
Respondent also argues that the Applicant’s evidence does not corroborate his
account. Medical certificates describing a person’s hospitalization or physical
injuries do not establish the cause of those injuries. Having found that the
Applicant was not credible, the Respondent argues, the RPD was entitled to give
the other documentary evidence no probative value. In the Respondent’s opinion,
a global analysis of the Applicant’s general credibility is sufficient to
refuse to give probative value to the affidavits and medical documentation that
the Applicant submitted.
[29]
In
response to the Applicant’s arguments on the general country condition in
India, the Respondent asserts that country condition evidence alone does not
establish a well-founded fear of persecution or that a person is in need of
protection. An applicant must establish a link between his personal
circumstances and the general situation of his country of origin; this, the
Applicant has failed to do.
VIII. Analysis
Standard of Review
[30]
The
standard of reasonableness applies to the RPD’s credibility findings and
assessment of country condition evidence (Csonka v Canada (Minister of
Citizenship and Immigration), 2012 FC 1056).
[31]
When
the standard of reasonableness applies, the Court may only intervene if the
RPD’s reasons are not “justified, transparent or intelligible”. To meet this
standard, decisions must fall in the “range of possible, acceptable outcomes
... defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
(1) Was the
RPD’s credibility assessment reasonable?
[32]
The
RPD’s credibility assessment was reasonable. It was in “clear and unmistakable
terms” and justified with “specific and clear reference” to evidence (Hilo v
Canada (Minister of Employment and Immigration), [1991] FCJ No 228
(QL/Lexis) (FCA) at para 6; Leung v Canada (Minister of Employment and
Immigration), (1994), 81 FTR 303 at para 14).
[33]
The
RPD may rely on inconsistencies in the record to find an applicant not credible
(Kambanda v Canada (Minister of Citizenship and Immigration), 2012 FC
1267).
[34]
The
Applicant stated at his intake interview that he was not currently wanted by
police in India and that police threatened to kill him but later testified that
police continued to search for him after he left India and did not mention
their death threats in his PIF or RPD testimony (CTR at pp 606 and 607; 737 and
812). Moreover, the Applicant specifically stated at his intake interview that
he was accused of provoking an anti-government uprising at his first arrest and
of links to terrorists at his second arrest; this was inconsistent with his
assertion in his PIF and testimony that he was accused of links to terrorists
at both his first and second arrests (CTR at pp 606; 480 and 806).
[35]
The
RPD could rely on these inconsistencies. They were rationally related to the
Applicant’s credibility and sufficiently important to bring it into question
since police impunity was focal in his claim. Such inconsistencies do not arise
from a “microscopic examination of peripheral issues” (Kambanda, above,
at para 42).
[36]
The
RPD may also rely on amendments to an applicant’s PIF that are not reasonably
explained and omissions in a PIF in assessing credibility (Lugo v Canada
(Minister of Citizenship and Immigration), 2012 FC 1297 at para 72; Chavez v Canada (Minister of Citizenship and Immigration), 2012 FC 1385
at para 10). The Applicant amended his PIF to state that he came to Canada with
the assistance of an agent (CTR at p 728). The Applicant also omitted
references to his temporary removal to Delhi after his second arrest; this
omission was pivotal because the Applicant testified that he fled to Delhi to
avoid further harassment by police in Karnal (CTR at p 766).
[37]
In
drawing adverse credibility inferences, the RPD may also rely on
implausibilities in an applicant’s account in light of the evidence and the
panel member’s own understanding of human behaviour (Mpema v Canada
(Minister of Citizenship and Immigration), 2002 FCT 840 at para 12). The
RPD could reasonably consider implausible: (i) that the Applicant would be
released on the intervention of village officials when suspected of terrorist
links in light of country condition evidence that Indian police pursue Sikh
militants and the Applicant’s allegation that he signed blank sheets of paper
that would empower the police to obtain a false conviction; (ii) that Indian
police did not question the Applicant on his trips abroad although he was
suspected of recruiting Sikh youth for terrorist purposes; and (iii) that the
Applicant would be able to leave India with his passport if suspected of
terrorist links given the security screening procedures for international
departures at Indian airports (CTR at pp 142; 481; 413).
[38]
Since
the Applicant’s credibility has been generally impugned, the RPD was entitled
to infer a lack of subjective fear from his delay in claiming refugee
protection (Khazaei v Canada (Minister of Citizenship and Immigration),
2013 FC 13 at para 51). It would be reasonable to find that, were the Applicant
actually at risk, he would have made some effort to acquire state protection upon
arrival in Canada.
[39]
The
RPD could reasonably give little probative value to the Indian medical
certificate describing the Applicant’s “pain, swelling, bruises, contusions” in
June 2007 and “bruises and abrasions on his legs, thighs, shoulders and back”
in January 2008 (CTR at p 636). The certificate does not identify the cause of
these injuries and does not necessarily corroborate his “otherwise disbelieved”
claim of torture (Sanaj v Canada (Minister of Citizenship and Immigration),
2012 FC 744 at para 12). The letter from the Australian authorities also does
not necessarily lead to the conclusion that the Applicant and his family are at
risk of persecution because it does not discuss any allegations of torture (CTR
at p 691).
[40]
Since
the RPD did not believe the Applicant’s allegations that he was arrested,
detained, and tortured, it had discretion to give little probative value to the
psychologist report on his post-traumatic stress disorder and major depression
as well as the Letter, and Kaur Affidavits (Hernandez v Canada (Minister of
Citizenship and Immigration), 2012 FC 1097 at para 38).
[41]
Finally,
the RPD could reasonably give little weight to the medical report, dated May
19, 2012, because this report does not establish that the Applicant suffered
the long-term joint and muscle effects that result from torture by the heavy
roller or ghotna method (CTR at p 527 and 725). Since the report does
not actually corroborate the Applicant’s allegations that he was tortured by
this method, the RPD could reasonably give it little probative value.
(2) Was
the RPD’s analysis of the country condition evidence reasonable?
[42]
Given
the RPD’s reasonable credibility findings, the Applicant failed to establish
the necessary link between his personal situation and that of Sikh militants
and activists in India (Singh v Canada (Minister of Citizenship and
Immigration), 2008 FC 453 at para 20). Consequently, it is not necessary to
consider the RPD’s analysis of the country condition evidence.
IX. Conclusion
[43]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS
COURT ORDERS that the Applicant’s application for judicial
review be dismissed. No question of general importance for
certification.
“Michel M.J. Shore”
Email this Content