Date: 20060210
Docket: IMM-2781-05
Citation: 2006
FC 181
Ottawa, Ontario, February 10, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
SWARAJ
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated April 14, 2005, where Denis Arvanitakis found that the applicant was not
a Convention refugee or a person in need of protection.
ISSUE
[2]
Did the
Board commit a reviewable error in dismissing the applicant’s claim?
[3]
For the
following reasons, the answer to this question is negative and the present application
shall be dismissed.
BACKGROUND
[4]
The
applicant is a Citizen of India. He was born on June 30, 1978 in Ropar.
[5]
On April
11, 1996, the applicant joined the sports section of the Punjab Armed Police
(PAP). The applicant claims that though he held the rank of “head constable”,
he was never actually trained as a police officer, nor did he ever perform any
police duties. His role was simply to play competitive basketball.
[6]
The
applicant was issued an identity card which allowed him to access the “Sports
line”, a compound where PAP athletes trained. Though he is pictured wearing a
uniform on this identity card, the applicant states that this was the only time
he ever wore a uniform.
[7]
On January
5, 2004, the applicant and other team members went to a restaurant after
practice, where he noticed two of his team mates, Snehpal Singh (Snehpal) and
Jasjot Singh (Jasjot), sitting apart from the group in the company of two
unidentified Sikh men.
[8]
PAP
athletes were under strict instructions not to mix with the general public or
invite visitors into the Sports line compound. The applicant reported his team
mates’ behaviour to his Coach and the PAP’s Sports secretary, who advised him
to be very cautious from then on.
[9]
Snepal
Singh and Jasjot Singh consistently avoided the topic of their meeting at the
restaurant during their conversations with the applicant.
[10]
In March
2004, the applicant was questioned by senior members of the PAP, who wanted to
know about his relationship with Snepal and Jasjot. During the course of the
interrogation, the applicant learned that the two men his team mates had met
with were members of the terrorist Khalistan Liberation Force. The applicant
denied any involvement in his team mates’ alleged activities, and stated that
the first time he had seen the two suspected terrorists was on January 5, 2004.
The applicant later learned also that Snepal, Jasjot and one of the two
suspected terrorists had been arrested by the PAP and were under investigation.
[11]
The applicant
was then ordered to remain on Sports line grounds for a week and told that he
might be ordered to report for further questioning.
[12]
On March
30, 2004, as the applicant was riding his motorbike on his way to a training
camp, he was stopped by two Sikh men, one of whom he had seen with Snepal and
Jasjot on January 5, 2004 in the restaurant. The men punched the applicant and
put a gun to his head, threatening to kill him and his family if anything
happened to their friend who had been arrested by the PAP. When they left, they
threatened to kill the applicant’s family if he told the authorities about
their encounter.
[13]
The
applicant told his coach and the PAP Sports Secretary, and asked for
protection. They simply said to him to be careful and not to move alone.
[14]
The
applicant was later re-interrogated by the PAP about his knowledge of Snepal
and Jasjot’s contacts abroad. The applicant learned that they had travelled to Uzbekistan, Kyrgyzstan, and Malaysia.
[15]
On July
18, 2004, while the applicant was in his home town during his summer vacation,
the two men who had assaulted him on March 30, 2004, approached him and
threatened to kill him in front of his parents, stating that they held him
responsible for the arrest of their friend in January 2004. They eventually
left, and the applicant unsuccessfully sough protection from the local police,
who told him not to worry.
[16]
On July
19, 2004, the applicant was summoned back to the PAP headquarters. On July 20,
2004, he was questioned by a Deputy Superintendent of the PAP and other
officers about whom he had met with during his vacation. The applicant told
them about the incident with the two Sikh men and asked for protection, but
they did not believe him. He learned that Snehpal and Jasjot had escaped from
custody 15 days earlier, and that the authorities suspected the applicant of
being involved.
[17]
The
applicant was then living in fear of both the authorities and the terrorists.
He was in possession of a valid passport as well as a Canadian visa because of
a planned sports trip to Canada which had been cancelled.
[18]
The
applicant arrived in Canada on August 1, 2004, and filed
an asylum claim on or around September 1, 2004.
DECISION UNDER REVIEW
[19]
In its
reasons, the Board assessed the possibility that the applicant might be
excluded from refugee protection under article 1F(a) of the Convention because
of the PAP’s reported involvement in human rights abuses. Though it stated that
it did not find the applicant’s claim that he never served as a policeman
credible, it nonetheless came to the conclusion that there was insufficient
evidence to warrant exclusion.
[20]
The Board
did not find the applicant credible, and found his testimony “sketchy,
hesitant, implausible, and inconsistent”.
[21]
The Board
found that the applicant had not fully explained why he felt compelled to
report his two team mates to his superiors after having seen them in the
company of two strangers on January 5, 2004. The Board stated that the
applicant’s “hesitant, vague and inconsistent” testimony on this subject led it
to draw negative inferences that the event actually occurred.
[22]
The Board
concluded that it was implausible that the PAP would have been able to arrest
one of the suspected terrorists. The Board found that the applicant had not
satisfactorily explained the omission in his PIF of the fact that he had given
his superiors a description of the two strangers, or how the PAP could know
that the man they arrested was one of the men the applicant saw in the
restaurant on January 5, 2004. According to the Board, this affected the
appellant’s credibility.
[23]
The Board
also doubted the plausibility of the applicant’s claim that the PAP only
interrogated him about Snehpal and Jasjot’s activities.
[24]
Considering
the seriousness of the accusations the applicant claims that the PAP made
against him, the Board found it inconsistent that the applicant would be
released from confinement of the Sports line compound within a week and that he
would have been authorised to travel around alone on his motorcycle on March
30, 2004, the day he was first assaulted by the two Sikh men who threatened his
and his family’s lives.
[25]
The Board
also concluded that the fact that the applicant would have been authorised to
travel to Canada to play Basketball despite
the accusations made against him was improbable
[26]
The Board
reviewed documentary evidence submitted by the applicant, including letters
from a municipal councillor and a physician but gave them little value in light
of the applicant’s overall lack of credibility.
[27]
The Board
also drew a negative credibility inference from the amount of time the claimant
allowed to elapse before he decided to leave India.
[28]
The Board
concluded its reasons by stating that the applicant had not met the onus of
proof to establish that he had a well-founded fear of persecution if he were to
return to India.
ANALYSIS
[29]
Sections
96 and 97 of the Act read as follows:
|
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.
|
|
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.
|
|
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.
(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.
|
|
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.
(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.
|
Standard of review
[30]
The Board
is a specialized tribunal and its findings relating to issues of credibility
are questions of fact. This Court should only intervene in the presence of a
patently unreasonable error (Aguebor v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 732) (F.C.A.) (QL)).
[31]
The
applicant argues that the Board erred in misinterpreting or ignoring the
evidence before it. Specifically, the applicant’s arguments focus on the
following points:
- Inconsistencies as to the reason why
the applicant reported his team mates to his superiors:
the applicant submits that during his testimony, he simply provided the Board
with an additional reason for his action (the men seemed strange), and that there
was no contradiction or inconsistency with the initial reason he gave (his team mates
were ignoring him in the restaurant).
- The Board provides no specific
reasons or examples as to why it found the applicant’s
testimony hesitant or vague in page 4 of its reasons.
- There was no omission regarding the
applicant having given a description of the two men in the
restaurant to his superiors. The applicant’s PIF states that he had told his superiors
“everything”, and this includes their description.
- The applicant did not testify that
the PAP had not interrogated any of his other team mates
about Snehpal and Jasjot. He stated that he did not know if they had interrogated
anyone else.
- The fact that the police accused the
applicant of having knowledge of Snehpal and Jasjot’s
activities does not imply that they accused him of being their accomplice.
- The applicant was never formally
arrested, so the Board’s finding that it was implausible
that he would have been allowed to resume his activities is erroneous.
- The Board’s negative inference from
the applicant’s delay in leaving India
is erroneous. Delay does not necessarily equate
with the absence of subjective fear of persecution.
- The Board’s statement that the human
rights and security situation had improved in Punjab is unsupported by the
evidence.
- The Board did not mention an
affidavit submitted by the applicant that supported his claim,
and thus ignored important evidence in coming to its conclusions.
[32]
With
respect to the applicant’s counsel’s capable arguments to the contrary, and
after having carefully reviewed the Board’s reasons and the transcript of the
hearing, I do not think that the Board’s decision was patently unreasonable.
[33]
On the
matter of the applicant’s delay in leaving India, it is true that a delay does
not necessarily equate with the absence of subjective fear of persecution (Hue v. Canada (Minister of Employment and
Immigration),
[1988] F.C.J. No 283 (C.A.) (QL)). However, an
applicant’s poor explanations for the delay can legitimately lead the Board to
draw adverse credibility inferences. (Ghasemian v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1266, Espinosa v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No 1680 (T.D.)
(QL)).
[34]
In the
present case, the applicant’s explanations for the delay are incomprehensible.
During his testimony before the Board, he stated that he did not leave right
away because he was given holidays and went back to his home town. He also
stated that he did not leave right away because he was a famous sportsman in India.
[35]
In this
context, I do not think that it was unreasonable for the Board to draw adverse
credibility inferences from the applicant’s explanations.
[36]
Furthermore,
the Board was in the best position to assess the explanations submitted by the
applicant for any perceived inconsistencies and implausibilities between his
PIF and his testimony. The role of this Court is not to substitute its judgment
for the Board’s on findings of fact relating to the applicant’s credibility (Mavi
v. Canada (Minister of Citizenship and
Immigration),
[2001] F.C.J. No. 1 (T,D.) (QL)). I do not think that this Court’s intervention
is justified in the present case.
[37]
The parties
declined to submit questions for certification. None arise in this case.
ORDER
THIS COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
“Michel
Beaudry”
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