Bajwa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1070

Date: 20030917

Docket: IMM-4812-02

Citation: 2003 FC 1070

BETWEEN:

                                                            TIRATH SINGH BAJWA

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

LUTFY C.J.

[1]                 The applicant, 23, is a citizen of India and a Punjabi Sikh.

[2]                 According to the applicant, his father was an officer in the Indian army. In late December 2000, soldiers under the father's command would have killed four Sikh militants. Over the next seven months, the applicant's family was threatened four times by militants.

[3]                 In August 2001, after having been urged to do so by his parents, the applicant sought refuge in Canada.

[4]                 In December 2001, again according to the applicant, the father was arrested upon false information provided to the police by one of the militants that the father had assisted them in illegal border operations.

[5]                 In April 2002, the applicant's father retired from the army.

[6]                 In September 2002, the single member panel of the Refugee Protection Division determined that the applicant is neither a Convention refugee nor a person in need of protection. The member made a negative finding concerning the applicant's credibility and, in any event, concluded that there was no clear and convincing evidence to rebut the presumption of state protection available to the family.

[7]                 On the issue of state protection, the member made no reviewable error in stating the legal test and it was open to him to question why the family did not seek assistance from the military. The applicant has fallen far short of establishing that the state protection analysis, a matter of mixed fact and law in this case, was clearly wrong. The applicant's reliance on documentary evidence concerning police retaliation and the status of the enforcement of human rights in India today does not, on the facts of this proceeding, warrant this Court's intervention.

[8]                 Again, I am also satisfied that it was open to the member to make the negative credibility finding on the basis of the claimant's testimony and the personal documents he relied upon at the hearing.

[9]                 Presumably because he wanted to corroborate his testimony, the applicant filed an otherwise unidentified photograph of an adult male in an Indian army uniform, alleging that the individual was his father. According to the applicant, this photograph was obtained from a family relation on the day prior to the refugee hearing, apparently through the use of a scanner and the internet. Upon my review of the record, particularly the applicant's vague responses disclosing very little knowledge about his father's military career, it was open to the member to conclude that the father's status as a member of the Indian military had not been established.

[10]            Similarly, there was no reviewable error in the panel member's analysis of the sketchy information provided to immigration officials in August 2001 at the point of entry, including the possible contradiction concerning the father's involvement in the killing of the militants.

[11]            Finally, counsel for the applicant speculated that the member may have misunderstood one extract from the documentary evidence concerning the risks facing young Sikhs. Even if counsel were correct, I am satisfied that any error in appreciating this generic information was neither central nor material to the specific facts alleged by the applicant concerning his father's military career which were found not to be credible.

[12]            Accordingly, this application for judicial review will be dismissed. I agree with counsel that there exists no serious question for certification in this proceeding.

                                                                                                                                                    "Allan Lutfy"                       

                                                                                                                                                                  C.J.

Ottawa, Ontario

September 17, 2003

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-4812-02

STYLE OF CAUSE:                           Tirath Singh Bajwa                                                           Applicant

v.

The Minister of Citizenship and Immigration

                                                                                                                                                     Respondent

PLACE OF HEARING:                     Montréal

DATE OF HEARING:                       September 4, 2003

REASONS FOR ORDER :             Lutfy C.J.

DATED:                                                September 17, 2003

APPEARANCES:

Me Jean-François Bertrand                                                           FOR PLAINTIFF / APPLICANT

Me Thi My Dung Tran                                                                  FOR DEFENDANT/ RESPONDENT

SOLICITORS OF RECORD:

Bertrand, Deslauriers                                                                      FOR PLAINTIFF/APPLICANT

83 ouest, rue St-Paul

Montréal (Québec) H2Y 1Z1

Department of Justice                                                                     FOR DEFENDANT/

Guy Favreau Complex                                                                  RESPONDENT

200 René Lévesque Blvd. West

East Tower, 9^th Floor

Montréal (Québec) H2Z 1X4