Date:
20130523
Docket:
IMM-7445-12
Citation:
2013 FC 535
Ottawa, Ontario,
May 23, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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PINDERJIT SINGH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA or the Act) of a decision
made by the Refugee Protection Division of the Immigration and Refugee Board
(the RPD), dated June 27, 2012, whereby it was decided that Pinderjit Singh
(the Applicant) was neither a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97(1) of the Act.
[2]
For
the reasons that follow, I have come to the conclusion that this application
must be dismissed.
Facts
[3]
The
Applicant is a 42 year-old Sikh farmer from a small Punjab village in India. The facts that he presented to the RPD are the following.
[4]
The
Applicant hired a Sikh man named Sukhdev Singh as a labourer in June 2006.
Sukhdev was housed in a building on the farm. The Applicant informed his
Sarpanch and the village watchman, as per custom, of the presence of Sukhdev
Singh on the farm.
[5]
On
January 16, 2007, two rural-looking Sikh men visited Sukhdev Singh. The three
of them left the farm together. On that same day, the police came looking for
Sukhdev Singh and raided the Applicant’s house. The police told the Applicant
that Sukhdev was a wanted terrorist. The Applicant was taken into custody. The
police questioned him on the whereabouts of Sukhdev Singh and accused him of
harbouring a terrorist and being a militant himself. The Applicant was tortured
for four days and released with the help of the Applicant’s Panchayat and a
bribe of 40 000 rupees. The Applicant was released upon the condition that he
would produce Sukhdev Singh and his colleagues as soon as possible.
[6]
On
the evening of June 29, 2007, Sukhdev Singh showed up at the farmhouse. The
Applicant tried to hold him down but Sukhdev threatened the Applicant with a
pistol. Sukhdev left the farmhouse that same evening. Early the next day, the
police once again raided the Applicant’s house and arrested him. Once again,
the Applicant was tortured for four days. He was released with the help of his
Sarpanch and a bribe of 50 000 rupees. He was released upon the condition that
he must report to the police station every month and help with the arrest of
Sukhdev Singh.
[7]
Unable
to satisfy police demands, the Applicant moved to Moleke in the district of
Amristar, where he stayed for two months. The Applicant decided to flee India and arrived in Canada on September 20, 2007. The Applicant worked on a farm until late
August 2009, in the hope of obtaining permanent resident status. During that
time, although the Applicant received room and board, but no salary, $12,000
was sent to his family in India.
[8]
The
Applicant left the farm in late August 2009. He arrived in Montreal on
September 4, 2009 and claimed refugee status on September 8, 2009.
The impugned
decision
[9]
The
RPD found that the Applicant was not credible and that, in any case, he had a
viable internal flight alternative (IFA) in New Delhi.
[10]
With
respect to credibility, the RPD took issue with a number of implausible elements
in the Applicant’s story:
•
the police waited six months after Sukhdev Singh was hired before
attending the Applicant’s home;
•
the Applicant’s Sarpanch and the village watchman did not go to the
police between the two arrests because of “lack of courage”;
•
the police nearly missed Sukhdev Singh on two occasions;
•
the Applicant did not immediately go to the police station or contact
someone on the night Sukhdev Singh returned to his farm.
[11]
The
RPD also took issue with the fact that the Applicant had not “directly
answered” when asked why his Sarpanch and the village watchman had not
explained to the police that he had informed them of Sukhdev Singh’s presence
on the farm.
[12]
The
RPD noted that the Applicant’s story was not corroborated by general
documentary evidence. The RPD referred to documents indicating that Sikh
militant movements were no longer active in Punjab.
[13]
The
Applicant also submitted two affidavits in support of his allegations: one from
the Sarpanch who helped with his release from police detention, and the other
from his village’s current Sarpanch. The RPD did not address the content of
these affidavits, because it did not find the Applicant credible and because of
the prevalence of fraudulent documents in India.
[14]
On
the issue of the availability of an IFA, the RPD considered that even if it had
believed the Applicant’s testimony, he would be safe in New Delhi. The RPD
noted that the Applicant was not subject to an arrest warrant and that he was
only wanted for having harboured a terrorist. The documentary information
revealed that police would pursue in other regions only hard-core militants who
are wanted by the central authorities, which is not the case of the Applicant.
Issues
[15]
This
application for judicial review raises two issues:
a) Are
the RPD’s credibility findings reasonable?
b) Was
it reasonable to conclude that the Applicant had an IFA in New Delhi?
Analysis
[16]
It
is settled law that credibility and plausibility findings are to be reviewed
against the reasonableness standard: see Jerome v Canada (Minister of Citizenship and Immigration), 2011
FC 1419 at para 6, [2011] FCJ No 1753;
Mirna Guadalupe Gomez Ramirez v Canada (Minister of
Citizenship and Immigration), 2010 FC 136 at para
12, [2010] FCJ No 150. However, plausibility findings may
be more easily overturned than credibility findings based on behaviour or
contradicting testimony.
[17]
The
reasonableness standard also applies to the conclusion that the Applicant had
an IFA in New Delhi: Marthandan v Canada (Minister of Citizenship and
Immigration), 2012 FC 628 at para 14, [2012] FCJ No 624; Khokhar v Canada (Minister of Citizenship and Immigration), 2008 FC 449 at paras 21-22, 166 ACWS
(3d) 1123.
[18]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190.
a) Are the RPD’s
credibility findings reasonable?
[19]
Counsel
for the Applicant submitted that the RPD’s credibility findings are flawed for
a number of reasons. First he argued that there is no supporting evidence as to
what information the police had and when it was obtained with respect to
Sukhdev Singh, and that the RPD therefore had no basis to conclude that he was
wanted by the police before the police raided the Applicant’s house for the
first time. Second, contrary to the RPD’s finding that the Applicant did not
respond directly when asked if the Sarpanch and the village watchman had told
the police that he had informed them of Sukhdev Singh’s presence, counsel
asserted that the Applicant testified that he did inform the police at the time
of his first arrest that he had reported Sukhdev Singh once he had started
living on his property, and that the Sarpanch and the watchman had indeed gone
to the police and informed them about the Applicant’s registration of Sukhdev
Singh back in June 2006. Finally, it is contended that the RPD failed to
consider the Applicant’s reasons for not having gone to the police immediately
after Sukhdev Singh returned to his farm.
[20]
Having
carefully considered the record and the submissions of the parties, I am unable
to find that the RPD’s conclusions are unreasonable. While some inferences
drawn by the Board may appear questionable, there were enough implausibilities
in the Applicant’s story to put his credibility at issue. First, if the police
were told that Sukhdev was living with the Applicant since June of 2006, it is
extremely unlikely that the evening Sukhdev left the house would be the same
evening that the police decided to visit.
[21]
The
Applicant’s explanation that Sukhdev was not of interest to the police until he
was visited by two men is also unsatisfactory. Contrary to what the Applicant
now claims, he claimed in his Personal Information Form (PIF) that the police
told him that Sukhdev was a terrorist, not simply a suspect. If the police knew
that Sukhdev was a terrorist, their file was not limited to informer reports
indicating that he had left the house in the company of the two strangers.
Furthermore, the Applicant’s speculation that Sukhdev only became known to the
police on January 16, 2007 is contradicted by the allegation that Sukhdev was
being sought because he had been evading arrest. Given the evidence in the
Applicant’s PIF, it was reasonable to conclude that the police must have been
interested in Sukhdev before January 16th. It is therefore illogical
to claim that the police would have waited until their informers told them that
Sukhdev had left the farmhouse before trying to arrest him there.
[22]
It
is not entirely clear from the transcript of the hearing whether, following the
Applicant’s first arrest, the Sarpanch and the village watchman told the police
that the Applicant had informed them of Sukhdev Singh’s presence. It appears
that the Sarpanch and the watchman, when asked by the Applicant after his first
release, told him that they had gone to the police and told them of Sukhdev
Singh’s presence but were afraid to go back and reiterate that they were
informed by the Applicant. Yet this is an illogical explanation. It is implausible
that the Sarpanch and the watchman would feel comfortable arranging his release
with a bribe, but would be too afraid to go to the police to confirm that the
Applicant had informed them of Sukhdev Singh’s presence at the first
opportunity after his release.
[23]
The
RPD considered the explanation given by the Applicant for not going immediately
to the police after Sukhdev came back on the night of June 29, 2007. The
Applicant testified that he had been threatened with a pistol by Sukhdev Singh.
The Board found, however, that having allegedly been tortured for four days and
released on the promise to produce Sukhdev Singh, it would be expected that he
would have tried as soon as possible to contact someone who would let the
authorities know.
[24]
The
Applicant does not contest the Board’s conclusion, but offered a new
explanation before the Court, to the effect that he was afraid of contacting
the police because his house was under police surveillance. That explanation
does not make sense either, as this would simply make it easier for him to
inform the police of Sukhdev’s visit and more importantly, to demonstrate to
the police without delay that he was willing to assist them.
[25]
The
Applicant also submitted that the Board erred in failing to consider the two corroborating
affidavits from the current Sarpanch of his village and from the Sarpanch at
the relevant times, which both corroborate the Applicant’s story and support
the Applicant’s allegations of persecution.
[26]
I
agree with the Applicant that the way the two affidavits were handled by the
RPD is somewhat problematic. First of all, the fact that inauthentic documents
are easily available in India does not relieve the RPD of the duty to determine
whether the documents presented by the Applicant are genuine or not: Lin v Canada (Minister of Citizenship and Immigration), 2012 FC 157 at paras 53-54, 405 FTR
21. Moreover, it is inappropriate to rely on these documents for some purposes
and to dismiss them when they would tend to corroborate the Applicant’s story. That
being said, I note that the two affidavits are identical for all material
purposes, which would tend to undermine their genuineness. In and of
themselves, they are certainly not sufficient to bolster the Applicant’s case
and to cure the many implausibilities of his story. When considered in light of
the documentary evidence referred to by the Board, indicating that there were
no reports of Sikh arrests or detention in the period in which the Applicant
alleges he was detained, it cannot be said that the RPD’s treatment of the
affidavits is fatal to its decision.
[27]
For
all of the above reasons, I am of the view that the RPD’s assessment of the
Applicant’s credibility is reasonable and “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”.
b) Was it
reasonable to conclude that the Applicant had an IFA in New Delhi?
[28]
Counsel
for the Applicant submitted that the RPD erred in framing the risk that the
Applicant faces in India. The Applicant maintains that he has a well-founded
fear of persecution from the Indian authorities because he was alleged to be
associated with dangerous militants, possessed information on these militants
and failed to respect the conditions of his release. In his view, the Board failed
to appreciate that he was in fact wanted not because he was a militant, but
because he was suspected of collaborating with militants. In other words, the
Board failed to assess his profile through the eyes of his agents of
persecution, the Punjab police, and erroneously came to the conclusion that he
could not have a well-founded fear of persecution since he was not a militant.
Such a misperception led the Board to conclude that the Applicant would have an
IFA in New Delhi.
[29]
I
agree with the Applicant that the persecutor’s point of view must be taken into
account when assessing the risk a refugee claimant would be exposed to upon
removal. That being said, I do not think that the Board failed to properly
evaluate the real cause of the Applicant’s fear. The Applicant was never
alleged to be a hard-core militant or even a dissident. He was apparently
mistreated because he was perceived to be a possible associate of the militant
Sukhdev, to have harboured him and to have not cooperated with the police.
[30]
The
real disagreement of the Applicant with the RPD has to do with the RPD’s
finding that the Punjab police are unlikely to pursue a Sikh outside of Punjab unless they are one of a handful of hard-core militants. Although there is some
evidence in the National Documentation Package suggesting that no IFA is
available to Sikhs, the Board noted that this evidence was based primarily on
events in the 1990s. The Board was entitled to prefer more recent information,
indicating that when an applicant has alleged problems only with the local
police, an IFA is possible. Sukhdev himself may or may not be perceived as a
sufficiently important target to justify a pursuit outside of Punjab, however,
there is no evidence to indicate that the Applicant is the sort of person the Punjab police would waste resources pursuing in other states. The authority’s lack of
interest in the Applicant is further demonstrated by the absence of any warrant
for his arrest.
[31]
The
profile of the Applicant was most certainly a relevant factor to determine
whether he could safely relocate within India. It was incumbent upon the
Applicant to establish that he would be pursued throughout India, or that registration in a different state would place him in harm’s way. Having
failed to do so, the Board could reasonably conclude that the Applicant would
be safe if he relocated to New Delhi. This conclusion, in and of itself, was
sufficient to warrant the rejection of the Applicant’s claim.
Conclusion
[32]
For
all of the above reasons, I find that this application for judicial review
ought to be dismissed. No question for certification was proposed, and none
will be certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed. No question is certified.
"Yves de Montigny"
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