Date:
20060206
Docket:
IMM-4052-05
Citation:
2006 FC 134
Ottawa, Ontario, February 6, 2006
PRESENT: MR. JUSTICE SIMON NOËL
BETWEEN:
BALJITH
SINGH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial
review under section 72 of the Immigration and Refugee Protection Act,
S.C. 2001, c 27 (IRPA) of a decision of the Refugee Protection
Division (RPD), dated June 7, 2005. By this decision, the RPD rejected the
refugee claim of Baljith Singh (the applicant), who is a citizen of India.
According to the RPD, the applicant is neither a Convention refugee nor a
person in need of protection, and he could have availed himself of the
protection of the Indian state.
ISSUES
[2] The issues are the following:
- Did the RPD err in its assessment of the applicant’s
credibility?
- Did the RPD err in deciding that the applicant could
have availed himself of the protection of the Indian state?
- Did the RPD err in its assessment of the documentary
evidence presented by the applicant?
- Did the RPD’s failure to designate a representative for
the applicant invalidate the RPD’s decision?
- In light of the facts in the case, should the results of
the verification conducted in the course of the deliberations have been
communicated to the parties?
CONCLUSION
[3] For the following reasons, I answer
these questions in the negative and the application for judicial review is
dismissed.
FACTS ALLEGED BY APPLICANT
[4] The applicant alleges in his
Personal Information Form (PIF) that he resided in India, in the village of
Bassi, until February 2004.
[5] In April 1996, his father became a
member of the Shiromani Akali Dal Mann party, the main political party
representing the Sikhs in India.
[6] In May 2000, five terrorists
appeared at the family farm and forced the family to give them food and
lodging. These terrorists threatened the members of the family that they would
be killed if they complained to the police.
[7] The following morning, the police
is said to have arrested the applicant’s father at the family farm, on the
ground that he had assisted the terrorists and had links to them. Four of the
terrorists were arrested and confessed they had been aided by the applicant’s
father. Because of this, the applicant’s father was tortured and held for three
days. He was then released and was told he must provide information to the
police about the terrorists.
[8] In late January 2004, the assassins
who had murdered the Chief Minister of the Punjab, Beant Singh, escaped from
the prison in Burail. On January 25, 2004, the police reappeared at the family
farm to interrogate the applicant’s father concerning the place where the
fugitives would be found. The police arrested him and asked him to reveal the
terrorists’ plans. The applicant’s mother tried to intervene and was also
arrested. The applicant’s father and mother were taken to the police station.
She was tortured but was unable to provide information to the police. She was
released two days later following the intervention of influential persons in
the village and the payment of a bribe. After a three-day hospital stay, she
fled to New Delhi.
[9] Attempts to locate the applicant’s
father were unsuccessful and the police denied they had custody of him.
Following a meeting with a lawyer with a human rights defence organization, the
Kharla Mission Committee (KMC), on February 6, 2004, it was decided that the
applicant’s mother would complain against the police about the disappearance of
the applicant’s father. A meeting with the lawyer was scheduled for February 8,
2004, to sign an affidavit and lodge a complaint.
[10] On February 7, the police again
showed up at the family farm and arrested the applicant. The police ordered a
friend of the applicant to tell the applicant’s mother not to file a complaint
against the police, and that the applicant would be killed if she did.
[11] The applicant was taken to the
police station and tortured, the police accusing him of having links with the
terrorists and of working against the police. He was released two days later,
upon payment of a bribe and as a result of interventions by influential persons
in the village. The applicant was released on condition that he would bring his
mother back to the station and would not lodge a complaint. He then spent three
days in the hospital, and then joined his mother at his uncle’s home in New
Delhi on February 16, 2004. His uncle advised him to leave India with the help
of a smuggler, which he did on April 2, 2004. He arrived in Canada on the same
day and applied for asylum on April 14, 2004. It is alleged that the
applicant’s mother lives in hiding and that the police are still looking for
her.
IMPUGNED DECISION
[12] The RPD decision is based on three
main grounds. First, the RPD thought the applicant was not a Convention refugee
or a person in need of protection for reasons of credibility. Second, it held
that the documentary evidence presented by the applicant was not trustworthy.
Finally, the RPD decided that the applicant could avail himself of the
protection of the Indian state.
[13] According to the RPD, the
applicant’s credibility was suspect for the following reasons:
- Generally, in the course of his testimony, the applicant
was hesitant on many occasions and his statements appeared “laborious”;
- The KMC letter makes no mention of the fact that the
family had given food and lodging to the terrorists in May 2000 and that there
was a connection between these events and the problems experienced by the
family, although the applicant claims there is such a connection. The applicant
does not know why the letter does not refer to this and instead refers to the
political and religious affiliation of the applicant’s father as well as to his
activism;
- The applicant’s lawyer produced abundant documentation
showing that the disappearance of persons in India is widely publicized in the
media. But no document reports the disappearance of the applicant’s father. The
applicant explains that nothing was published because his family feared the
police;
- The applicant was very vague and contradicted himself
concerning the dates of the visits the police made to the family farm;
- The applicant was confused about the dates of his own
detention and his hospital stay;
- The applicant remained on the family farm while his
mother fled to New Delhi because she feared the police;
- The applicant was unable to explain why the police did
not go looking for him before May 2004, although in February 2004 they had
asked that he bring his mother back to the station “soon”;
- The RPD thought the applicant’s statement at the hearing
that his mother is under an arrest warrant in India was intended solely to
embellish his own story;
- The applicant was unable to explain why the police did
not go after his father at the time of Beant Singh’s assassination in 1995;
- The KMC letter says the applicant’s father was the
subject of retaliation by the police because of his sympathies and his
political and religious activism, and not because of any connection he may have
had with the assassins;
- The applicant was unable to explain why the police went
after his mother even though she never filed a complaint against the police;
- The applicant stated in his PIF that he was present at
the meeting on February 6, 2004 with the KMC lawyer although he said the
opposite at the hearing and in his initial meeting with the immigration
officer. The applicant and his counsel attribute this difference to a
translation mistake;
- The applicant did not mention his new passport in his
PIF;
- The applicant’s explanations concerning the date at
which he asked to obtain his school certificate are full of contradictions;
- The evidence shows that there are recourses available
when a disappearance occurs and which the applicant did not pursue, which shows
that he does not really fear being persecuted.
[14] Concerning the question of state
protection, the RPD decided that the Indian state must be presumed to be able
to protect its citizens and that the applicant had not managed to rebut that
presumption.
[15] As to the documentary evidence, the
RPD refused to assign any value whatsoever to the evidence presented because
the applicant had failed to prove the essential ingredients of his claim. The
RPD added that it was easy to obtain false documents in India.
ANALYSIS
1.
Applicant’s credibility
[16] Concerning the RPD’s assessment of
his credibility, the applicant bases his challenge on the following grounds:
- It was “far-fetched” for the RPD to find that the
applicant was not credible because his mother fled to New Delhi while he
remained on the family farm;
- The RPD should not have criticized the applicant’s
inability to explain why the police were searching for his father in the wake
of the escape of the criminals responsible for the assassination of Beant
Singh;
- The RPD erred in drawing inferences about the
applicant’s credibility from his inability to explain why the KMC letter does
not refer to the assassination of Beant Singh;
- The contradictions concerning the applicant’s presence
at, or absence from, the meeting with the KMC lawyer on February 6, 2004 do not
relate to any consideration that is decisive to the claim;
- The RPD found, contrary to the evidence before it, that
the applicant’s mother experienced no problems in New Delhi;
- The test used by the RPD to decide whether or not to
accept the applicant’s allegations was inappropriate (“satisfactory” nature of
the explanations).
[17] The respondent, however, is of the
view that the RPD decision was reasonable and does not warrant the intervention
of this Court. In the respondent’s opinion, the RPD noted several
contradictions, omissions and improbabilities in the applicant’s story, and
these were sufficient to undermine his credibility. The respondent insists that
the onus was on the applicant to establish the central elements of his claim on
a balance of probabilities. As to the RPD’s use of the word “satisfactory”,
this is not a legal criterion but an indication that the panel did not consider
the explanations provided to be credible, in the respondent’s opinion.
[18] I will go over the applicant’s
arguments in opposition to the RPD’s conclusions as to his credibility one by
one, bearing in mind that the standard of review is that of the patently
unreasonable decision (Thavarathinam v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at paragraph
10; Aguebor v. Canada (Minister of Citizenship and Immigration), [1993]
F.C.J. No. 732 (F.C.A.), at paragraph 4).
[19] First, I do not think it is wrong to
find that, in a context in which the applicant’s father was tortured and had
disappeared while in police custody, and the applicant’s mother had in turn
been tortured for three days, she decided nevertheless to flee without her son
to New Delhi. The applicant, in his refugee claim, depicts the Indian police as
a brutal, arbitrary police force prepared to do anything to achieve its goals.
That is incompatible with the alleged conduct of the applicant and his mother.
[20] The RPD emphasized that the
applicant seemed to be unaware of the reasons why the police had gone after him
and his family following the escape of Beant Singh’s assassins. It is
appropriate in this regard to quote in full the relevant passage in the decision.
It is not the applicant’s inability to explain, but a whole constellation of
circumstances, that led the RPD to find that the applicant lacked credibility
(at page 5 of the decision):
The claimant testified that his mother and
father were arrested in 2004, when the murderers responsible for Beant Singh’s
assassination escaped from jail. Asked what was the link between Beant Singh’s
murderers escaping from jail and his family, the claimant was totally unable to
give any satisfactory explanations on this. Questioned if his father or mother
had any problems in 1995 at the time that Beant Singh was murdered, he
responded in the negative. Confronted with exhibit P-3, a letter that was
issued by the Kharla Mission Committee, that mentions that his father had disappeared
by the police because of his peaceful activities for the achievement of self
determination of the Sikhs and there was absolutely no mention or reference
made to what the claimant was alleging that it was because the police suspected
him of having links to these murderers who escaped from jail, the claimant
could not give any opinion or explanation on this. The panel cannot but
seriously question the claimant’s statements and their trustworthiness as to
why the police would target him and his family when they were situated so far
away from where these detainees escaped, and why they would link his family to
these detainees that escaped from Shandigar, particularly when his parents did
not have any history with the police at the time that Beant Singh was killed in
1995.
It was not erroneous to find, as the RPD did,
that the applicant was not credible in this regard. In fact, it was not
patently unreasonable to find that there was a contradiction between what the
KMC letter states and the applicant’s allegations as to the reasons why the
police went after his father in 2004, and to make some inferences from this
concerning his credibility.
[21] Nor was it erroneous to find that
the applicant was not credible because of the contradiction between his PIF and
his testimony on the issue of whether he was or was not present at the meeting
of February 6, 2004 with a KMC lawyer. If the applicant was not there, as he
alleged, it is surprising that he could have been mistaken and would write in
his PIF that he was. Although this contradiction does not bear on a central
aspect of the claim, it seems to me sufficiently important and determinative,
in terms of the case law cited by the applicant, to be considered in the
assessment of his credibility.
[22] The applicant stated, at paragraph
19 of his affidavit:
I never testified that my mother was not
having any problems in New Delhi; I said that my mother was hiding in New
Delhi.
The RPD stated the opposite in its decision
and it was not mistaken in doing so, in my opinion. I quote here an extract
from the hearing transcript dated November 9, 2004, at page 19:
BY REFUGEE PROTECTION OFFICER (to Claimant)
Q. Sir, so your mother in New Delhi, has the
police gone looking for her in Delhi?
A. No, Sir, they haven’t gone to look for
her in Delhi.
[23] As to the use of the word
“satisfactory” by the RPD, this, in my opinion, is a word the RPD uses to say
that it finds that the applicant’s explanations are not credible. This word is
often used by the RPD and is not meant to be a legal term of art.
[24] For these reasons, no intervention
is warranted in respect of the RPD’s findings on the applicant’s credibility.
In view of this conclusion, it is not necessary to address the question of
state protection.
2.
Documentary evidence
[25] The applicant argues that the RPD
mistakenly and gratuitously stated that it is possible to obtain false
documents in India, as it dismissed exhibits P-2 (affidavit of Bakhsish,
Sarpanch of the village of Bassi, dated October 13, 2004), P-3 (KMC letter) and
P-4 (Medical certificate of Dr. Tarsem Singh).
[26] The RPD is free to reject evidence
filed by an applicant who is not credible. In Hamid v. Canada, [1995]
F.C.J. No. 1293, at paragraph 21, Mr. Justice Nadon explained this principle:
Once a Board, as the present Board did,
comes to the conclusion that an applicant is not credible, in most cases, it
will necessarily follow that the Board will not give that applicant’s documents
much probative value, unless the applicant has been able to prove satisfactorily
that the documents in question are truly genuine. In the present case, the
Board was not satisfied with the applicant’s proof and refused to give the
documents at issue any probative value. Put another way, where the Board is of
the view, like here, that the applicant is not credible, it will not be
sufficient for the applicant to file a document and affirm that it is genuine
and that the information contained therein is true. Some form of corroboration
or independent proof will be required to “offset” the Board’s negative
conclusion on credibility.
This decision has been followed by the Federal
Court (see in particular Al-Shaibie v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 1131, 2005 FC 887, at paragraph 21; Saha
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J.
No. 1117, at paragraphs 32-33).
3.
Applicant’s age
[27] The applicant was 17 years old at
the time of the hearing before the RPD. In his supplementary memorandum, he
raised the issue of the RPD’s failure to designate a person to represent him,
as the IRPA provides in subsection 167(2):
|
167. (2) If a
person who is the subject of proceedings is under 18 years of age or
unable, in the opinion of the applicable Division, to appreciate the nature
of the proceedings, the Division shall designate a person to represent the
person.
|
167. (2) Est
commis d’office un représentant à l’intéressé qui n’a pas dix-huit ans
ou n’est pas, selon la section, en mesure de comprendre la nature de la
procédure.
|
[28] However, on the morning of the
hearing itself, the record indicates, a person was indeed designated to
represent the applicant (his name appears at page 329 of the panel record and
he was present at the hearing – see pages 330 and 331) who met with him briefly
and who had a prior discussion with a social worker (see page 332).
[29] The former section 69(4) of the Immigration
Act, R.S.C. 1985, c. I-2, was worded in a similar fashion. The Federal
Court of Appeal, per Sharlow J.A., has already made pronouncements on
the absolute nature of the duty of the former Refugee Division to designate a
person to represent minors whose claims are being heard by it. In Stumf v.
Canada (Minister of Citizenship and Immigration), 2002 FCA 148, [2002]
F.C.J. No. 590, at paragraphs 5 and 6, Sharlow J.A. states:
. . . [T]he designation of a representative
in this case could have affected the outcome.
It is our view that subsection 69(4) of the Immigration
Act imposes on the Board an obligation to designate a representative for any
refugee claimant who meets the statutory criteria, and that the obligation
arises at the earliest point at which the Board becomes aware of those facts.
In this case, the age of the minor claimant was apparent from the outset, and
the matter of designating a representative for her should have been considered
at least at the point at which abandonment proceedings were in contemplation,
and certainly should have been done before the motion to re-open the claim was
considered. The failure of the Board to do so was an error that vitiates the
decision to refuse the motion.
[30] This decision has been followed,
after the enactment of the new IRPA, by this Court. However, in Duale v.
Canada (Minister of Citizenship and Immigration), 2004 FC 150,
[2004] F.C.J. No. 178, Madam Justice Dawson qualified this, at paragraph
10:
I agree that it is necessary to consider the
facts of each particular case and that it may be possible that the failure to
designate a representative will not vitiate the determination of a claim.
[31] In Sibaja v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1079, [2004] F.C.J. 1363, at
paragraphs 19 and 20, Mr. Justice Lemieux makes comments to the same effect:
The respondent claims that the failure to
designate a representative does not vitiate the decision in regard to the
child’s claim.
Assuming without deciding that this argument
is a relevant consideration when subsection 167(2) of the Act has been breached
. . .
[32] In the recent case of Vashee v.
Canada (Minister of Citizenship and Immigration), 2005 FC 1104 [2005]
F.C.J. No. 1360, at paragraph 11, Madam Justice Kelen writes:
I agree with Justice Dawson that, depending
on the facts, there may be circumstances under which the failure to appoint a
designated representative will not vitiate the underlying decision. However,
this Court has adopted a strict interpretation of the Board’s obligations in
this regard, and that the failure to designate a representative for a minor has
consistently resulted in an order for a new hearing or redetermination. See Stumf
v. (Minister of Citizenship and Immigration), [2002]
F.C.J. No. 590 (F.C.A.); Kissoon v. Canada (Minister of Employment and
Immigration), [1979]
1 F.C. 301 (F.C.A.); Sibaja v. Canada (Minister of Citizenship and
Immigration), [2004]
F.C.J. No. 1363 (F.C.); Phillip v. Canada (Minister of Citizenship and
Immigration), [1998]
F.C.J. No. 820 (F.C.T.D.); In fact, in Duale, supra,
Justice Dawson allowed the application for judicial review of a refugee
decision on the basis that she could not “safely conclude that the failure to
appoint a designated representative could not have an adverse effect on the
outcome of the claim.”
[33] The Guidelines on Child Refugee
Claimants (the Guidelines) read as follows (No. 3):
II. DESIGNATED REPRESENTATIVE
The Immigration Act requires the
designation of a representative for all child claimants. In cases where the
child is accompanied by his or her parents, one of the parents is usually
appointed as the designated representative of the child. This designation
applies to all the “proceedings” of the refugee claim and not only to the
hearing of the claim. The role of the designated representative is not the same
as that of legal counsel. In addition to the designated representative, the
child has a right to be represented by legal or other counsel.
. . .
The duties of the designated representative
are as follows:
·
to retain counsel;
·
to instruct counsel or to assist the child in
instructing counsel;
·
to make other decisions with respect to the proceedings
or to help the child make those decisions;
·
to inform the child about the various stages and
proceedings of the claim;
·
to assist in obtaining evidence in support of
the claim;
·
to provide evidence and be a witness in the
claim;
·
to act in the best interests of the child.
Before designating a person as a
representative for the child, the CRDD panel should inform the proposed
designated representative of his or her duties and should make an assessment of
the person’s ability to fulfill those duties.
There may be situations where the person who
was designated to be the representative ceases to be an appropriate
representative of the child. For example, the person may prove unwilling or
unable to make themselves available for pre-hearing conferences. In these
situations, the CRDD should remove the person as designated representative and
designate another appropriate representative.
[34] The RPD is bound to follow the
guidelines it publishes. It has a duty to designate a representative, even in those
cases in which the claimant is represented by legal counsel, since, as the
Guidelines explain, the role of the designated representative is not the same
as that of legal counsel. The very existence of the duty to appoint a
representative is unequivocal. However, the failure to appoint such a
representative will not always be fatal to the RPD decision. In the case at
bar, I do not think the RPD’s decision is vitiated, in view of the following
facts:
- The applicant was 17 years and 10 months at the time of
the hearing, 16 years and 5 months at the time he completed his PIF, and he was
at all times able to understand the proceedings that were in progress;
- A representative was assigned to him before the hearing
and he was allowed to meet with a social worker on the eve of the hearing;
- The improbabilities in his story are too numerous and
significant to conclude that the RPD decision is vitiated because he had not
yet reached the age of 18.
In view of the circumstances of this case, I
do not think it is necessary to overturn the RPD decision. However, I do stress
the importance of compliance with subsection 167(2) of the IRPA and the
Guidelines, as this Court has stated many times.
4.
Procedural fairness
[35] The applicant further argued that
procedural fairness had been breached in that he expected that the hearing
would continue after November 9, 2004. There is no merit to this submission:
the hearing transcript clearly shows that everyone understood, following the
oral submissions by counsel, that the hearing had ended. The hearing closed as
follows:
BY PRESIDING MEMBER (to Claimant)
- We will return to you your originals, Mr.
Singh, and this brings to an end file number MA4-03295.
[36] The applicant also alleged that the
translator made a mistake during the hearing. A mistake was indeed noted but it
was quickly corrected (see pages 345 to 347 of the panel record) and the RPD
Interpreters Unit found that the correction was properly made (at page 39 of
the panel record). Owing to verifications, the decision-making was suspended in
the meantime (as is confirmed by the letter sent to the applicant’s counsel on
July 6, 2005, at page 29 of the panel record) and it was only because of an
administrative error that a new hearing was set down in the calendar. Once the
verification was done, no new evidence was filed, and the Interpreters Unit
provided an interpretation that was consistent with the words that the
applicant said he had spoken at the hearing. The verification made during
deliberation added nothing to the evidence but simply confirmed a certain
aspect of it. In other words, the interpreter admitted the mistake immediately
after having committed it and the verification confirmed the interpretation
that was most favourable to the applicant and the applicant was not criticized
for the final interpretation that was adopted in the decision. So the applicant
suffered no harm and I fail to see how there was a breach of procedural
fairness. There was no reason, therefore, for the RPD to communicate the
results of the verification. They added nothing new to the evidence.
[37] For these reasons, the application
for judicial review is dismissed.
[38] The parties were invited to submit
questions for certification and the applicant submitted the following question
for certification:
[translation]
- When the panel, in the course of its deliberation, thinks it
is useful to have a verification made or requires some expert opinion after the
hearing on a point that was raised by one of the parties during the hearing, do
the rules of natural justice require that the parties be so informed and, if
so, should the panel ensure that the parties can be informed of the result of
this verification or expertise and respond to it before the final decision is
delivered?
[39] The respondent
objected to the request for certification of the question.
[40] To determine
whether a question is to be certified, it is necessary to refer to the tests
laid down in Canada (Minister of Citizenship and Immigration) v.
Liyanagamage, [1994] F.C.J. No. 1637, at paragraph 4. The question
must transcend the interests of immediate parties to the litigation,
contemplate issues of general application and be determinative of the appeal.
[41] In view of the
foregoing, I do not think this question would be determinative of the appeal in
the case at bar. The applicant’s credibility was in very serious doubt and the
verification made during deliberation added nothing to the evidence but simply
confirmed what had been said at the hearing. Therefore, the question will not
be certified.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review
be dismissed and no question is certified.
“Simon Noël”
Certified true translation
François Brunet, LLB, BCL
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