[1] Amarbir Singh Padda and Ravinderpal Singh Padda are brothers and citizens of India. They bring this application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") that they are neither Convention refugees nor persons in need of protection. Amarbir Singh Padda and Ravinderpal Singh Padda arrived in Canada on October 13, 2001, and made refugee claims, respectively, on January 21, 2002 and February 18, 2002. Their claims were based on alleged persecution due to their perceived political opinions. Amarbir Singh Padda is the younger brother (24 years of age) and is the principal claimant. His brother Ravinderpal is 28 years of age and makes his claim dependent upon that of his younger brother.
[2] The two brothers lived in the Punjab region of India. They say that in May 2000 they travelled to the Jammu and Kashmir province to visit a university classmate named Abdul Rashid. They say that the day after they arrived the police raided the home of Abdul Rashid and arrested the brothers along with Abdul Rashid. The applicants now say that Abdul Rashid was, unknown to them at the time, a member of a Kashmiri militant organization known as the Lashkar-e-Toiba ("LeT"). The police accused the brothers of having links with the LeT. The applicants say that they were held in jail for ten days during which time they were tortured for five days. They were released after their father paid a bribe to the police. Thereafter, the brothers say that they were treated for their injuries at a hospital and then went into hiding. They say that they have been put on a national list of militants so that it is not safe for them anywhere in India. Accordingly, they fled to Canada with the help of smugglers. They say that the police continued to go to their family home looking for them.
[3] The Board dismissed their claims that they were Convention refugees or persons in need of protection because the Board concluded that they failed to provide credible evidence to support their claims.
[4] The applicants say that in reaching this conclusion the Board erred in the following respects. First, they say that the Board interrupted excessively during the direct examinations of the applicants by their counsel, and that by doing so the Board failed to observe principles of natural justice and procedural fairness. The applicants say that the Board's conduct gives rise to a reasonable apprehension of bias. Second, the applicants say that the Board did not give valid reasons for not finding them to be credible. Finally, the applicants say the Board failed to properly take into account the documentary evidence. The documentary evidence is said to support the evidence of the applicants. Further, the applicants assert that the Board was obliged to consider whether there was an objective basis for their claim.
[5] Turning to the first asserted ground of error, I have read the transcript of proceedings twice. I am satisfied that the Board's interventions, while in my view excessive, did not reach the level that prevented the applicants' counsel from fully presenting their case. I say this because the applicants have not specified any aspect of their claims that they were precluded from presenting. The Board is entitled, in the words of the Federal Court of Appeal, to engage in "an energetic exercise in attempting to clear up some inconsistencies in the evidence". See: Mahendran v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 549 (C.A.). This is particularly so where a tribunal operates in a non-adversarial setting such as a refugee determination hearing where there is no one appearing to oppose the claim and where, as in the present case, no refugee claim officer is present. See: Paramo-Martinez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 261 (T.D.).
[6] I am also satisfied on my reading of the transcript that the Board's questions were directed to clearing up real or perceived inconsistencies or implausibilities and were motivated by frustration at the real or perceived lack of direct answers to some questions. The applicants have not persuaded me that "an informed person, viewing the matter realistically and practically - and having thought the matter through" would consider there to have been a reasonable apprehension of bias. See: [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394.
[7] Notwithstanding my conclusion that the Board's conduct fell short of reviewable error or apprehended bias, there is cause for concern at the frequent and lengthy intervention by the Board in the direct examinations of the claimants. I cite two examples. First, during the examination of Amarbir Singh Padda the following exchange occurred:
Q What happened to you in the police station?
A Following day, following day, next day, police inspector came. A policeman was with him. And he took me out of the lockup room. He took me outside to the accompanying room and there he took my fingerprints. And sent me back to the lockup room. After that, they had this allegation against me. He told me that "Your friend has links with the Kashmiri militants." And he said to me, "You are with him. You are his companion and you are also a militant." Same it was with my brother. All this which happened with me, his fingerprints were also taken.
Q We shall ask him what happened to him. You tell us what happened to you.
A When police told me, "This is the charge against you", and there were two policemen with the inspector and they said to me, "You are with them. You tell us what are the plans of these militants. Who are your companions? What do you do? Where you go? Who are the people you are killing?" For to make it clear, I answered, "Abdul Rashid is a friend of mine. I am just visiting him. We studied together." I begged them a lot.
After that, they started beating me. They tortured me. And on the bottom of my feet, they hit those portions of the feet with the case, on the back, on the legs. I was feeling as if the muscles inside are broken. On the thighs, there was a blood clots, feeling a blood clots all over, reddish. Same on the buttocks. They were asking me these questions. They were telling me, "We will kill you."
PRESIDING MEMBER: You don't seem much affected by the experience sir. You don't seem much affected by the experience, sir. I find your tone rather flat. Rather surprising, if it was as bad an experience as you say.
A A person who has suffered this, he knows better.
PRESIDING MEMBER: Please continue.
BY MR. SANDHU:
Q What else happened to you in the police station?
A They continuously making these allegations: "Yours and your brothers are links with the Kashmiri militants." On time and time they had been beating and torturing.
Q Were you ever related to any militants organization? No. Were you ever related with any militants organization? Were you.
A No, sir.
PRESIDING MEMBER: Sir, are you saying that for ten days, they said, "You are linked to a militant organization" and you said, "No, we're not." And they said, "Yes, you are." "No, you're not." It went on for ten days?
A First four or five days, they tortured more.
PRESIDING MEMBER: Well, sir, that's not my question.
A Even afterwards.
PRESIDING MEMBER: My question is, so far the only conversation I've heard between you and the officers is them saying, "You are a member of the militant organization" and you saying, "No, we're not." How can that go on for five days, ten days? I mean, surely there's more that they said. Why would police just be that mindless as to say "You're a member of the militants?" You say, "No, we're not." I mean, there must be more, sir.
MR. SANDHU: Still, he told us that they were asking him some more questions but again I ask him.
Q Mr. Padda, what the police were asking you when you were there in the police lockup?
PRESIDING MEMBER: And what did you say in reply?
MR. SANDHU: Yeah, what --
PRESIDING MEMBER: Let's have the conversation.
A They told me, "Your friend has links with the Lashkar-e-Toiba militant group. You are with him."
PRESIDING MEMBER: Wait a minute.
A "You are one of them."
PRESIDING MEMBER: Hang on. Hang on. "Your friend has links with the Lashkar-e-Toiba." Did you ask them on what basis they say that?
A No, I did not.
PRESIDING MEMBER: And did they say, "Look, we have proof. Here's photographs of him dealing with guerrillas. Here's things we found in his home"?
A No, nothing of that sort, sir.
PRESIDING MEMBER: So on what basis are they saying he's a member of Lashkar-e-Toiba?
A Possibility is they know more about Abdul Rashid in Kashmir than I knew him. With me, he was only studying with me. That is my link as far as was with him.
BY MR. SANDHU:
Q What else --
PRESIDING MEMBER: Sir -- sorry.
BY MR. SANDHU:
Q Okay. What else police were asking you?
A They were asking only this.
Q What else --
A "What link you have with him?"
Q What else -- you said us that they were asking you about the plans of militants. What about those plans?
A They were asking, "What your plans are? What you do? What you are going to do in future along with your companions? Where they reside?" These kinds of questions I was asked.
PRESIDING MEMBER: And what did you say?
A I said, "I am innocent. I know nothing. I came to Kashmir just to visit my friend Abdul Rashid." I begged them. They didn't listen me at all.
PRESIDING MEMBER: Well, sir, that -- you know, after the first time you said that, are you saying they came back in and asked you the same questions again, beat you again, and they came in the next day, asked you the same questions again and you said the same thing?
A Yes.
PRESIDING MEMBER: Sir, do you know anything about Lashkar-e-Toiba?
A Watching the TV or reading the newspaper.
PRESIDING MEMBER: Sure. Where are they located?
A Lashkar-e-Toiba?
PRESIDING MEMBER: Mm-hmm. LeT.
A I have heard they are from Pakistan and they are fighting for Kashmir in India.
PRESIDING MEMBER: Yeah, they're Pakistani fighters coming into the Kashmir. Now, do you think that the police know that they're Pakistani fighters coming into Kashmir?
A The whole world know it.
PRESIDING MEMBER: Yeah, okay. So when they come into Pakistan -- into Kashmir, what are they usually carrying?
A How do I know, sir?
PRESIDING MEMBER: Well, the whole world knows, right? They're carrying heavy weapons like AK-47s, ammo, explosives. Now, would you not think that the police know that?
A They must know it.
PRESIDING MEMBER: Sure. They make their raids. They stay in places like madrassas and make their raids, then go back into Pakistan. Mm-hmm? Do you know who finances them?
A No, sir.
PRESIDING MEMBER: Have you ever heard of the Inter-Services Intelligence Agency?
A No, sir.
PRESIDING MEMBER: You grew up in India, you studied at university and you've never heard of the ISI? ISI.
A I heard about it, sir, but I never take an interest in it.
PRESIDING MEMBER: Sure. Well, they're the ones that finance the LeT. Do you know how they finance it?
A No.
PRESIDING MEMBER: You don't read the newspapers?
A I am reading newspaper or I hear the news on the TV.
PRESIDING MEMBER: Well, we've got a lot of documents on this file that say they finance it by selling narcotics, importing counterfeit, selling weapons. Elaborate narco-terrorist network. This information comes from the police, sir. Now, where does Abdul Rashid fit into that?
A Now I do not know, sir. So far as I know, sir he was studying with me. He never mentioned anything about these things ever with me.
PRESIDING MEMBER: The point is, sir, why would the police, who are telling the press how this Pakistani-financed and organized narco-terrorist organization works, how could the police think that Abdul Rashid, who is a student most of the time in the Punjab, has anything to do with this elaborate, secret narco-terrorist organization? The LeT does not seek young, native local inhabitants for their network. They're very secretive. They go and they blow up parliament or something like that. All of this is in the documents on this file, sir.
So I'm saying, how would the police be so -- you know, what possibly could lead the police to Abdul Rashid? They didn't -- well, you haven't said that they found anything in his house. They didn't come across some explosives or some AK-47s or ammo belts. Your representation of the police, sir, is in my view practically nonsensical, given the country documents. It suggests that they have no intelligence, no brains. So you know, what -- what have you got to say?
A All I can say, sir, he studied with me for two years. On days there is holidays, he was going back to his village. At the time of (indiscernible), our long holidays --
[8] The direct examination of Ravinderpal Singh Padda began as follows:
Q Mr. Ravinder Singh Padda, I shall address you as Mr. Padda. That's okay?
A Yes.
Q You were present here in this room when your brother, he testified under oath.
A Yes, sir.
Q If you don't agree with whatever he has stated here during his testimony and you want to comment upon it, you can go ahead.
A I agree.
PRESIDING MEMBER: Just for the record, sir, could you say what it is you agree to? What are you agreeing to, sir?
MR. SANDHU: It's -- I think, Mr. Chairman, it's very vague question and I have objection with respect to this question because does he agree does he agree to the entire statement given by his brother or what does he agree to? What he should say, even --
PRESIDING MEMBER: I don't know.
MR. SANDHU: It's very hard, this question, that "what did you agree", what --
PRESIDING MEMBER: Well, I'm not asking him what he agrees to. What is he saying, "I agree"? "I agree" to what? That's my question. Your question was "You heard the testimony of your brother this morning."
MR. SANDHU: Right.
PRESIDING MEMBER: "Do you agree to what he said", I think. Is that not correct?
MR. SANDHU: Right, to his entire statement under oath.
PRESIDING MEMBER: To his entire statement. Now, he said "I agree", so --
MR. SANDHU: Whatever he said.
PRESIDING MEMBER: So are you saying "I agree to his entire statement"? Is that what you're saying?
A Yes.
PRESIDING MEMBER: Is that what you asked? Is that - - is that what you wanted to elicit?
MR. SANDHU: That's what I asked from him and I wanted to know that. If he doesn't agree to any part of his statement, he can find out, he can comment.
PRESIDING MEMBER: Yeah. Do you want to correct anything.
MR. SANDHU: Yeah.
PRESIDING MEMBER: Year, sure. No, that's fine.
MR. SANDHU: That's what I mean to --
PRESIDING MEMBER: I think we're on the same wavelength.
[9] While the Board has a legitimate interest in ensuring that hearings are conducted expeditiously, all hearings are to be full and fair, and are to be conducted in accordance with principles of procedural fairness and natural justice. This means that the Board should at all times be, and appear to be, an impartial decision-maker that listens attentively and patiently to the testimony given before it. The Board should not appear to have decided a case until all of the evidence is heard and should not appear to take up a cudgel and enter into the fray. Questions asked by the panel should be asked in a fashion that is not overly aggressive or argumentative. The Board should promote an atmosphere that facilitates a claimant's ability to testify calmly, frankly and truthfully. Counsel should be given some opportunity to clarify confusing evidence on a topic. If counsel does not clarify confusion, the Board may ask counsel to clarify an area of testimony or to expand the testimony on a point. This facilitates the ability of the Board to listen attentively to the evidence impartially.
[10] I repeat that the applicants have not pointed to any aspect of their claims that they were precluded from advancing. I do not believe that the conduct of the Board was so egregious as to breach principles of natural justice or procedural fairness. Notwithstanding, it would have been preferable for the Board to have listened with more patience, allowed counsel to complete his direct examination before intervening, and to have refrained from asking questions some of which may be characterized as being argumentative.
[11] Turning to the second ground of asserted error, I accept that some of the Board's credibility concerns related to matters that were peripheral to the applicants' claim. For example, the Board found it improbable that Amarbir Singh Padda had not asked his father who the sarpanch asked to help secure Amarbir Ravinderpal's release.
[12] As well, at least two implausibility findings appeared to be based upon Canadian law enforcement paradigms and to have been made without regard to the documentary evidence. Specifically, the Board found it improbable that the applicants would be arrested merely because they were identified as Abdul Rashid's friends and improbable that the police would accuse the applicants of being members of the LeT without producing corroborating evidence. However, the documentary evidence establishes that India's police and security forces do not always respect the rule of law and that Sikhs, Kashmiris or anyone suspected of being involved in political militancy may be arrested and may be pursued wherever they go, even though they have never actually been arrested. The 2001 U.S. DOS report stated that the United Nations Special Rapporteur on torture "has reported that the security forces systematically torture persons in Jammu and Kashmir in order to coerce them to confess to militant activity, to reveal information about suspected militants, or to inflict punishment for suspected support or sympathy with militants".
[13] Notwithstanding those errors, I am equally satisfied that a number of the Board's credibility concerns were well-founded in the evidence and cannot be said to be patently unreasonable. In this regard, the Board found:
i) Neither applicant gave a convincing explanation as to why they would travel to Jammu or Kashmir when they knew the situation there was "really bad". This was particularly so since Amarbir Singh Padda was studying political science at university, read the newspapers three to four times a week and watched the television news so that he was familiar with the political situation.
ii) The Board found Abdul's testimony with respect to his time in jail to be wooden and to lack the ring of truth.
iii) The applicants' depiction of the investigating officers as having no knowledge of the Sikh role in the narco-terrorist network in which contemporary Sikh militants and Kashmiri extremists are co-operating partners was improbable.
iv) The applicants' description of the hospital where they were allegedly examined and treated over ten days contradicted the description of the hospital in the medical documents.
v) Amarbir Singh Padda misrepresented himself to the Board by submitting a falsified document in support of his claim.
vi) The applicants did not satisfactorily explain why they waited a year after arriving in Canada before making their refugee claims.
vii) Amarbir Singh Padda told a senior immigration officer that the police had come to his parents' home five or six times after he and his brother fled for Delhi and Canada. However, Ravinderpal Singh Padda told the same senior immigration officer that the police had come three times while the brothers were still in India and more than 30 times after they left the country. The Board did not accept their explanation that the discrepancy reflected error on the part of the immigration officer or the interpreter.
viii) The two medical reports provided by each claimant were almost identically worded. The description of their injuries was identical. While similar methods of torture might have been inflicted on each, it was implausible that their injuries would be identical and would be described in a verbatim manner.
[14] These findings are sufficient, in my view, to support the Board's determination that the applicants had not adduced clear and convincing evidence in order to establish a well-founded fear of persecution in India or to establish that they were persons in need of protection. The Board's findings were not patently unreasonable. Further, the documentary evidence is not sufficient on its own to establish the truthfulness of the applicants' testimony or to overcome the credibility findings, as the applicants appear to argue.
[15] Turning to the last asserted ground of error, I am satisfied that in the light of the Board's credibility finding there was nothing to link the applicants to the documentary evidence. While perceived militants may well be at risk in India, the applicants failed to establish that they are perceived militants.
[16] It follows that the application for judicial review should be dismissed.
[17] Counsel for the applicants posed two questions for certification. One related to whether interrupting and engaging in unnecessary arguments with claimants breaches principles of procedural fairness or natural justice. The other related to whether a panel is obliged to consider independent documentary evidence in order to come to the "right conclusion". The Minister opposed certification of either question.
[18] The jurisprudence in these areas is, in my view, settled. No serious question is raised and none will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2682-03
STYLE OF CAUSE: AMARBIR SINGH PADDA et al.
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: March 31, 2004
REASONS FOR ORDER AND ORDER: DAWSON J.
DATED: April 6, 2004
APPEARANCES:
Mr. Baldev S. Sandhu for Applicants
Ms. Pauline Anthoine for Respondent
SOLICITORS OF RECORD:
Darwent Law Office for Applicants
Calgary, AB
Mr. Morris Rosenberg for Respondent
Deputy Attorney General of Canada
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