Date: 20060531
Docket: IMM-6684-05
Citation: 2006 FC 669
Vancouver,
British Columbia, May 31, 2006
Present:
The Honourable Mr. Justice Martineau
BETWEEN:
KIRPAL
SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant is contesting the lawfulness of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board) dated October 5,
2005, that he is not a “Convention refugee” or a “person in need of protection”
within the meaning of sections 96 and 97 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27.
REFUGEE CLAIM
[2]
The
applicant is a citizen of India. In his Personal Information Form (PIF), he
says that he has been a member of the All India Sikh Student Federation (AISSF)
since April 2001. He was allegedly involved in various demonstrations and also
spoke out against the police, which brought him to the police’s attention.
Having said that, the incidents that prompted him to leave India took place in
the summer of 2003. The applicant alleges that during that period he received a
visit from his cousin’s wife, one Rasal Singh. Rasal Singh had visited the
applicant seven or eight times in the preceding ten years. Apparently, Rasal,
who had been in hiding since 2002, was suspected by the local police of being
associated with militants. During his last visit, Rasal was accompanied by two
friends; the three individuals were armed. Rasal then asked that they be given
shelter. The applicant refused but he changed his mind after being threatened
by one of the three individuals.
[3]
That
said, the applicant’s neighbour, a police officer by the name of Bakshish
Singh, allegedly saw the three individuals arrive at the applicant’s farm. He
then hastened to alert the local police. A raid followed, but the three
individuals were able to escape. The applicant claims to have been interrogated
and tortured by the police for several days. On April 13, 2004, he was once
again arrested and tortured. His neighbour, the police officer, then told him
that militants had been arrested and that they said that they had hidden
weapons in the applicant’s fields, after they had bought his silence. During
the same interrogation, he was persuaded to quit the AISSF. He was released
several days later after paying a bribe.
[4]
In
July 2004, the applicant’s police officer neighbour died in a car accident. The
police then suspected that the applicant had been involved in this fatal
accident. He was tortured once again. Afterwards, the applicant consulted
counsel in order to stop this conduct. The police nevertheless intercepted him
a few days later. They accused him once again of orchestrating his neighbour’s
death. He was tortured before being released a few days later, again after
paying a bribe.
[5]
The
applicant also alleges that his family was physically abused by the police in
January 2005. They went to the applicant’s farm when he was absent. The
applicant’s wife and father were also beaten. It was then that the applicant
decided to flee India using false papers.
IMPUGNED DECISION
[6]
In
the impugned decision, the Board determined that the applicant lacked
credibility. It was of the opinion that the applicant often contradicted
himself, that his story was sometimes extraordinary and that overall it was not
plausible. In particular, the Board did not find it plausible that Rasal Singh,
an individual suspected to be associated with militants, would have chosen to
ask the applicant for shelter in the specific circumstances of the matter. The
Board based this determination on certain inconsistent passages from the
applicant’s testimony on Rasal Singh’s knowledge of the identity of the
applicant’s police officer neighbour. The Board was also of the opinion that
the applicant made up the story about the accidental death of his neighbour.
The applicant’s inability to provide details regarding the circumstances
surrounding the death of his neighbour, an individual that he claims to have
feared and whose death he was accused to have orchestrated, affects his
credibility. Finally, the Board did not believe that the applicant could have
been of interest to the police based only on his involvement in demonstrations
organized for the AISSF. Indeed, the Board did not believe that the applicant
had spoken out publicly against the police. In that respect, the Board noted
that there was no mention of such statements in the notes at port of entry.
GROUNDS FOR JUDICIAL REVIEW
[7]
The
principal ground for review in this matter is that at the hearing the applicant
was unable to question the immigration officer and the interpreter who, on
March 31, 2005, took the applicant’s declarations when he arrived in
Canada. The fact that the Board relied on the contents of the notes at the port
of entry, when at the hearing the applicant was unable to question the
individuals who were present there, amounts to a serious injustice. In the
alternative, the applicant states that the Board did not take into account the
many documents supporting his story, in particular the medical documents and
the newspaper article about the accidental death of his neighbour, police
officer Bakshish Singh.
ANALYSIS
[8]
In
my opinion, the applicant’s allegations regarding the impugned decision are
unfounded.
[9]
In
principle, the Board cannot base its decision on determinative facts where the
applicant is prevented from explaining or contesting them at the hearing. This
would be contrary to procedural fairness and natural justice. However, I would
point out that this is not the case in this matter. The reference to the notes
at the port of entry was a non-determinative factor. Indeed, the applicant was
able to provide an explanation at the hearing regarding the fact that the port
of entry notes do not mention that the applicant publicly denounced acts of brutality
by the police (tribunal record, pages 355-57). In this case, the patent
unreasonableness of referring to the port of entry notes was not established to
the satisfaction of this Court.
[10]
The
Board alone must decide whether or not any probative value should be assigned
to the various declarations made by the applicant. In this case, the Board
could in the impugned decision refer to declarations that the applicant made to
an immigration officer upon his arrival in Canada. In fact, when assessing a
refugee claimant’s credibility, the case law recognizes that the Board can take
into account contradictions between the applicant’s testimony, the documents at
the port of entry and his PIF: see Mongu v. Canada (Minister of Employment
and Immigration), [1994] F.C.J. No. 1526 (F.C.T.D.) (QL); Sidhu v.
Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1355
(F.C.T.D.) (QL).
[11]
Second,
as an independent tribunal and master of its own procedure, the Board can
always issue a summons to have a witness come to the hearing to be questioned.
In exercising this discretionary power, the Board takes into consideration all
relevant factors. Indeed, subsection 39(2) of the Refugee Protection
Division Rules, SOR/2002-228 (the Rules) provides:
|
(2) In deciding whether to issue a summons, the Division
must consider any relevant factors, including
|
(2) Pour décider si elle délivre une citation à comparaître, la Section prend en considération
tout élément pertinent. Elle examine
notamment:
|
|
(a) the necessity of the testimony to a full and
proper hearing;
|
a) la nécessité du témoignage pour l’instruction approfondie de
l’affaire;
|
|
(b) the
ability of the person to give that testimony; and
|
b) la capacité de la personne
de présenter ce témoignage;
|
|
(c) whether
the person has agreed to be summoned as a witness.
|
c) si la personne a accepté
d’être citée à comparaître.
|
[12]
One
month before the hearing, the applicant’s former counsel filed a request with
the Board pursuant to section 38 of the Rules, asking it to summon the
immigration officer and the interpreter who took the applicant’s declarations
when he arrived in Canada, unless the Minister or the Board agreed not to rely
on the port of entry notes. In this case, on July 21, 2005, a coordinating
member of the Board refused to grant this request because the applicant had not
successfully established that the testimony of the two persons contemplated was
necessary. In fact, the coordinator found that the applicant had not provided
any tangible explanation in support of his request for a summons. It was then
determined that the questions the applicant wanted to ask the immigration
officer were too vague and not based on the record. Therefore, the applicant
was unable to show that their presence at the hearing was necessary.
[13]
In
my opinion, this matter must be distinguished from Kusi v. Canada (Minister
of Employment and Immigration), [1993] F.C.J. No. 523 (F.C.T.D.) (QL). In Kusi,
the applicant claimed that the answers recorded in the notes of the immigration
officer at the port of entry were inaccurate. In this matter, the applicant did
not raise any argument regarding the inaccurate content of the examination at
the port of entry. Indeed, the applicant does not mention any specific factor
stemming from his own record that would support his claims. The sole fact that
the request was denied by the coordinator before the hearing is not in itself
sufficient grounds to determine that there was a breach of natural justice or
procedural fairness.
[14]
I
find that the failure to observe the rules of natural justice or procedural
fairness cannot be presumed. The parties had been advised before the hearing
was held that immigration documents were part of the documentation that could
be examined by the Board. This certainly included the port of entry notes. At
the hearing, the applicant’s counsel did not object to the Board using the
content of the port of entry notes. Bear in mind, the coordinator’s refusal to
issue a summons to appear was not a final decision. There was nothing to
prevent the applicant’s counsel from reiterating the same request at the
hearing. In any event, it was not established in this matter that the presence
of the immigration officer and the interpreter was required at the hearing
under the circumstances.
[15]
I
find that the applicant’s alternative argument is also unfounded. The
credibility and probative value assigned to the evidence are within the
exclusive purview of the Board. In that regard, the Board is presumed to have
taken into account all of the evidence in the record without being obliged to
comment on each piece of evidence therein: see Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL). In
any case, the applicant did not establish that the Board’s findings were
patently unreasonable.
[16]
This
application for judicial review must therefore fail.
ORDER
THE COURT
ORDERS that the application for judicial review be dismissed. No question
of general importance was raised and no question will be certified.
“Luc
Martineau”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
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