Docket: IMM-558-15
Citation:
2015 FC 1410
Ottawa, Ontario, December 22, 2015
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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NAGARAJAN
SEENIVASAN
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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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JUDGMENT AND REASONS
[1]
The Refugee Protection Division of the
Immigration and Refugee Board [the Board] denied Nagarajan Seenivasan’s claim
for protection as a Convention refugee and as a person in need of protection
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] on January 2, 2015, finding that he was not a credible
and trustworthy witness, that the credibility finding extended to all the
relevant evidence of Mr. Seenivasan, and that there was no credible basis for
his claim. He brings this application for judicial review of the decision
pursuant to section 72 of the Act.
[2]
The application for judicial review is dismissed
for the reasons that follow.
I.
The Decision Under Review
[3]
The applicant recounted a complicated story of
his land dealings in the Tamil Nadu region of India and his involvement with
regional politicians who wanted to partner with him in order to acquire land
for themselves and other politicians for less than market price. Newspaper
articles submitted by the applicant in support of his application refer to
other methods used to force people to sell their land for reduced prices or to
purchase the land but not pay the seller. The Board member struggled to
understand the applicant’s testimony about his involvement and the risk he
faced as a result of his land deals because he was vague, contradicted himself
and added many more events than he had set out in his Personal Information Form
[PIF] or in his Port of Entry [POE] interview. The Board member sought clarification
from the applicant on several occasions to determine the nature of the risk he
alleged, who he was fearful of, the details of incidents that he described that
had not been mentioned in the POE interview notes or in his PIF, and his
explanations for these omissions.
[4]
The Board noted many credibility concerns, most
of which arose from omissions in the applicant’s PIF which were not explained
to the Board’s satisfaction. The Board pointed out that the applicant had
attested that he understood the duty to make a complete account and to be
truthful. As a result of the applicant’s lack of credibility and unreasonable
explanations for his omissions and contradictions, the Board concluded that, on
the balance of probabilities, the incidents he recounted did not occur.
[5]
First, the January 2011 incident where the
applicant stated he was visited by the principal secretary of a regional
politician along with a municipal councillor, who he was engaged with in
investing in land and paying or receiving commissions for land transfers, and
later “kidnapped” by them, was not included in his narrative. That “kidnapping”
was a trip to the home of the politician for a few hours, where the applicant
alleges that a subtle threat was made. The applicant omitted this, explaining
that he was afraid that the incident would be misconstrued as criminal
activity.
[6]
Second, the applicant testified that five
complaints to the police were made against him for his actions regarding
several property transfers. He also said the police did not take the complaints
seriously before the election because the police supported the ruling party.
After the election, the ruling party began to crack down on these practices. He
explained that he omitted this from his narrative because his interpreter told
him to be brief to avoid misinterpretations and that he could expand upon the
political problems at the hearing.
[7]
Third, the applicant testified that he was
“taken” by the police in March and May 2012, detained for a few hours, and
shouted at. He explained that he omitted these incidents from his PIF because
he was worried the Canadian government would think he had committed a crime. At
the hearing, the Board pointed the applicant to his negative response to the
direct question by the Immigration Officer asking if he had ever been detained
by the police. He explained that he gave a negative response because he had no
proof of being detained.
[8]
Fourth, the applicant testified that the police
were searching for him because of six properties he had not transferred to
relatives of politicians, but instead transferred to his brother. He also
testified that he went into hiding from May until July 2012. At the hearing, he
was asked why he did not mention the fact that he was in hiding in his PIF
narrative. He responded that the interpreter had only asked him where he lived
and that he truthfully responded that he lived in India.
[9]
The Board noted that, in general, the applicant
described a completely different series of events than that presented in his
narrative and that his explanations for excluding details, because he was
concerned the Canadian government would think he was a criminal, were not
reasonable or satisfactory.
[10]
The Board found that it is reasonable to expect
that the applicant would include all of the significant events and reasons for
which he was seeking refugee protection in his narrative, noting that his POE
interview and PIF were similar and did not include these incidents.
[11]
The Board found that there was no credible or
trustworthy evidence on which to make a favourable decision. The Board rejected
the applicant’s claim pursuant to sections 96 and 97.
II.
The Issues
[12]
The applicant argues that the Board’s
credibility findings were not reasonable.
[13]
The applicant also argues that the Board erred
by failing to assess his section 97 claim, noting that a negative credibility
finding, which may determine a section 96 refugee claim, is not necessarily
determinative of the section 97 claim. The applicant submits that the Board
failed to consider the corroborating evidence of his allegations, in
particular, the power of attorney deeds, which establish that he was authorised
to sell land on behalf of the owners, newspaper articles regarding the
crackdown on such land grabs and the objective country condition documents regarding
corruption in the judicial system.
III.
The Standard of Review
[14]
The parties agree that the standard of
reasonableness applies. The Court must therefore, determine 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). Deference is
owed to the decision maker and the Court will not re-weigh the evidence.
[15]
It is well-established that boards and tribunals
are ideally placed to assess credibility and their credibility findings should
be given significant deference: Lin v Canada (Minister of Citizenship and
Immigration), 2008 FC 1052 at para 13, [2008] FCJ No 1329 (QL); Fatih v
Canada (Minister of Citizenship and Immigration), 2012 FC 857 at para 65,
415 FTR 82; Lubana v Canada (Minister of Citizenship and Immigration),
2003 FCT 116 at para 7, 228 FTR 43.
[16]
In Rahal v Canada (Minister of Citizenship
and Immigration), 2012 FC 319 at paras 41-46, [2012] FCJ No 369 (QL),
Justice Mary Gleason summarized the key principles from the jurisprudence
regarding credibility and highlighted the Court’s limited role in reviewing
credibility findings because “the tribunal had the
advantage of hearing the witnesses testify, observed their demeanor and is
alive to all the factual nuances and contradictions in the evidence” (at
para 42). She also noted that contradictions in the evidence, particularly in
the applicant’s own testimony, will provide a reasonable basis for finding the
claimant to lack credibility, but such contradictions must be real and more
than trivial or illusory (at para 43).
IV.
The Credibility Findings were Reasonable
[17]
The applicant argues that it was not reasonable
for the Board to reject almost the entirety of the applicant’s PIF narrative
and testimony and find that he was not a credible witness on the basis of his
omissions. He submits that his narrative was brief and general and his
testimony expanded on the key aspects of his narrative regarding his
involvement in the land grab scheme. He adds that he only omitted the incidents
which he could not corroborate. He suggests that the Board conducted a
microscopic examination of irrelevant issues and put too much emphasis on his
POE interview notes despite his testimony that he was cautioned to be brief.
[18]
As noted above, the Board is best placed to
assess the credibility of an applicant.
[19]
In the present case, the applicant left out
significant portions of his story from both his POE interview and his PIF. In
his testimony, he provided contradictory responses and contradicted the
specific answers he provided at his POE interview. The omitted details were
essential to understanding the applicant’s claim, including the risks he
allegedly faced in India, that he was directly involved in the illegal land
grab scheme, that he had been in hiding and that he had left India because of a
change in government that put him at risk of being criminally charged because
of his involvement in the illegal land grab scheme. These were not mere
elaborations on the general and brief narrative provided in his PIF.
[20]
The jurisprudence relied on by the applicant
regarding POE notes does not support his argument that the Board erred in
making credibility findings based on his omissions.
[21]
In Wu v Canada (Minister of Citizenship and
Immigration), 2010 FC 1102, [2010] FCJ No 1388 (QL) [Wu], the Court
cautioned against overreliance on the POE notes given the circumstances under
which they are made. However, Wu focussed on the applicant’s failure to
understand the interpreter, which explained the discrepancies between the POE
notes and the applicant’s statements. In the present case, the applicant claims
that the interpreter told him to be brief; he did not indicate that he failed
to understand what was being said to him. To the contrary, he confirmed in his
testimony before the Board that he had understood.
[22]
In Samarakkodige v Canada (Minister of
Citizenship and Immigration), 2005 FC 301, [2005] FCJ No 371 (QL), the
Court simply noted that the applicant is not required to provide all of the
details of a claim at the POE. In the present case, the applicant provided
contradictory evidence to the answers he provided at the POE regarding whether
he had ever been arrested or detained.
[23]
In Fernando v Canada (Minister of Citizenship
and Immigration), 2006 FC 1349, 58 Admin LR (4th) 272 [Fernando],
Justice Blais noted the distinction between minor differences and significant
omissions at para 20:
While this Court recognizes the different
circumstances under which the POE notes and the PIF are prepared, it has long
been established that POE notes are admissible evidence before the Board (Multani
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.
361). Furthermore, while a small divergence between the PIF and the POE notes
should not be deemed fatal to an assessment of credibility, there is ample
jurisprudence to the effect that discrepancies between the POE notes and the
PIF may be considered by the Board in assessing the credibility of an applicant
and that the Board is entitled to draw negative inferences from any significant
omission in the POE notes (Sava v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 445). As noted by Justice Konrad W. von
Finckenstein in Markandu v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 956, at paragraph 5: “One of the key tools available to the
Board to test the credibility of an applicant is to compare his PIF and POE
statements and question him about any discrepancy during the hearing.”
[24]
More recently in Fahim v Canada (Minister of
Citizenship and Immigration), 2015 FC 406, [2015] FCJ No 364, the Court
noted:
[16] […] While minor discrepancies
between POE declarations and oral testimony are not sufficient to support a
finding that an applicant lacks credibility, the Board may draw a negative
inference from the omission of an element that is central to the claim (Jamil
v Canada (Minister of Citizenship and Immigration), 2006 FC 792 at para 25;
Alekozai v Canada (Citizenship and Immigration), 2015 FC 158 at para 8).
[25]
The Board noted that both the POE notes and
applicant’s PIF omitted the key incidents that he later raised at the hearing.
This was not a situation of omissions of minor details nor was the Board microscopic
in its examination. A review of the transcript reveals that the Board member
probed the applicant’s testimony, providing an opportunity for clarification
and explanation and to better understand the applicant’s claims regarding the
complicated land scheme and the role of the politicians. The applicant’s
testimony was contradictory and confusing. His explanations for the omissions
were reasonably found to be unsatisfactory – i.e., he failed to explain the
omissions.
[26]
The Board reasonably drew negative credibility
inferences from the omissions and the contradictions.
V.
The Board Did Not Err in Failing to Consider the
Section 97 Claim
[27]
The applicant argues that a negative credibility
determination is not necessarily determinative of a claim under subsection
97(1) and that the Board erred by failing to conduct an objective analysis of
the applicant’s situation and without regard to the country conditions and the
country’s human rights record.
[28]
The applicant submits that the he provided
objective evidence to establish that he was involved in the land transactions
he described and that there was a crackdown by the new government against those
involved. The applicant argues that the Board failed to consider this
corroborating evidence and the risk he would face upon being returned to India
to face the consequences of potential criminal charges.
[29]
The applicant submits that the Board’s findings
that the applicant had not been kidnapped, threatened or detained is
contradicted by his evidence, in particular, the power of attorney deeds which
referred to the properties he had transferred and the newspaper articles which
referred to the previous governing political party engaging in land grab
operations with the cooperation of the police.
[30]
In the respondent’s view, there is no evidence
capable of supporting the applicant’s allegations of fear under either sections
96 or 97 of the Act. The Board was not required to refer to this evidence
because there was no link between those documents and the applicant’s
situation. The Board did not find the applicant to be credible with respect to
any of his allegations.
[31]
The respondent adds that the applicant’s story,
even if believed, is not capable of supporting a claim for protection. The
applicant’s testimony appears to be that he was in partnership with corrupt
politicians in a land grab scheme and when the government began to crack down
on these claims, he transferred the land to relatives and came to Canada to
evade criminal charges. His claims of detention by the police amounted to no
more than shouting and threats to take legal action against him.
[32]
The jurisprudence has established that in some
circumstances, the section 97 claim must be considered, regardless of a finding
that the applicant lacks credibility. However, the present circumstances do not
so require.
[33]
In Rahaman v Canada (Minister of Citizenship
and Immigration), 2002 FCA 89, [2002] 3 FCR 537, the Court of Appeal
explained:
[28] Moreover, the wording of subs.
69.1(9.1) provides that a “no credible basis” finding may only be made if there
was no credible or trustworthy evidence on which the Board member could have
upheld the claim. In other words, the Board member may not make a “no credible
basis” finding if there is credible or trustworthy evidence before it that is
capable of enabling the Board to uphold the claim, even if, taking the evidence
as a whole, the Board decides that the claim is not established.
[29] However, as MacGuigan J.A.
acknowledged in Sheikh, supra, in fact the claimant’s oral
testimony will often be the only evidence linking the claimant to the alleged
persecution and, in such cases, if the claimant is not found to be credible,
there will be no credible or trustworthy evidence to support the claim. Because
they are not claimant-specific, country reports alone are normally not a
sufficient basis on which the Board can uphold a claim.
[34]
In Levario v Canada (Minister of Citizenship
and Immigration), 2012 FC 314, 9 Imm LR (4th) 198, the Court noted that the
threshold for finding that there is no credible basis for a claim is a high one.
The Court noted at para 19: “Thus, if there is any
credible or trustworthy evidence that could support a positive determination
the Board cannot find there is no credible basis for the claim, even if,
ultimately, the Board finds that the claim has not been established on a
balance of probabilities.”
[35]
As noted by the Court in Fernando at para
31, whether the Board must assess the documentary evidence depends on the
nature of the evidence and its relationship to the claim. Moreover, the onus is
on the applicant to establish the link between his situation and the risks he
alleges he would face. The Court added at para 34:
Once the lack of credibility of the
applicant has been established, I have difficulty believing that the panel
has the duty to look at the documentary evidence to find a link to factual
elements of the applicant’s situation; the link has to be demonstrated by the
applicant, not the panel.
[Emphasis added.]
[36]
In Manickan v Canada (Minister of Citizenship
and Immigration), 2006 FC 1525 at para 5, [2006] FCJ No 1913 (QL) [Manickan],
the Court referred to the decision in Fernando, noting that whether an
assessment of the documentary evidence is required depends on the nature of the
evidence and its relationship to the claim and that each case turns on its own
facts. The Court added at para 6:
Documentary evidence need not be
consulted where the only evidence that links an applicant to the documents is
the applicant’s discredited testimony. For example,
there will be instances where country condition reports may shed no light on a
particular applicant’s claim. In other cases, the country condition reports may
potentially establish a well-founded objective basis for a fear of persecution.
In the latter case the Board must have regard to that evidence.
[Emphasis added.]
[37]
In Sido v Canada (Minister of Citizenship and
Immigration), 2013 FC 1187, [2013] FCJ No 1305 (QL) [Sido], the
Court found, at para 20, applying the jurisprudence referred to above, that on
the facts before it, “this is not a case where
the only evidence that links the Applicants to that documentary evidence is the
Applicants’ discredited testimony” [emphasis added]. The Court noted
that there was evidence of political activism of the applicant’s children which
necessitated consideration of the country condition evidence to assess the
related risk to the applicant.
[38]
Bearing in mind that a finding of “no credible
basis” has serious consequences and must be made with regard to those
consequences, the question is whether this applicant has provided any credible
or trustworthy evidence to support his claim of fear from politicians or from
the judicial system arising from his involvement in the land grab scheme, other
than his own testimony which was not found to be credible.
[39]
The only evidence that could possibly be
considered of a corroborative nature related to his claim was the power of
attorney deeds and the news articles. The powers of attorney simply demonstrate
that he was involved in real estate transactions, had authority over some land
and delegated authority over other land to others. They do not show that he
engaged in a land grab scheme, that these were illegal in any way, that he was
kidnapped or threatened by politicians, or that he faced charges by the police.
[40]
The news articles refer to the land grab issue
in Tamil Nadu, describe the scheme differently than how the applicant described
his dealings and convey that the new governing party does not condone these
practices. The news articles do not make any link to the applicant’s evidence
or corroborate his claims. Moreover, that information would not establish that
anyone was at risk of cruel and unusual treatment or punishment, danger of
torture, or risk to life, only that those involved in illegal schemes may be
investigated and prosecuted.
[41]
Manickan and Fernando
clarify that each case turns on its own facts and the nature of the claim and
its relationship to the evidence must be considered. The onus was on the
applicant to demonstrate the link between his personal situation and the potential
objective risk due to the land grab scheme in India. He did not establish any
such link.
[42]
Unlike Sido, this is a case where the
only evidence that links the applicant to the documentary evidence is the
applicant’s discredited testimony. In addition, there is no other potential
risk to the applicant other than what he claims arises from his testimony
regarding his participation in the land grab transactions.
[43]
The Board made clear credibility findings that
were well supported by the evidence and reasonably found that there was no
credible basis for the applicant’s claim. In other words, the Board did not
believe any aspect of the applicant’s allegations. It was not up to the Board
on the facts before it to probe further through the applicant’s convoluted description
of his business dealings to find some possible link to a risk he may face if
any part of his claim had been true.
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