Sidhu c. Canada (Minister of Citizenship and Immigration), 2001 FCT 14

                                                                                                                                  Date: 20010202

                                                                                                                      Docket: IMM-4330-99

OTTAWA, ONTARIO, THE 2^ND DAY OF FEBRUARY, 2001

Present: THE HONOURABLE MR. JUSTICE MARC NADON

Between:

GURJIT SINGH SIDHU

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

ORDER

The application for judicial review is dismissed.

                                                    Marc Nadon

                                                                      J.

Certified true translation

Suzanne M. Gauthier, LL.L., Trad. a.

Date: 20010202

                                  Docket: IMM-4330-99

Citation: 2001 FCT 14

Between:

GURJIT SINGH SIDHU

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

NADON J.

[1]         The applicant attacks a decision of the Refugee Division of the Immigration and Refugee Board (the "Refugee Division") rendered on July 29, 1999. The Refugee Division found that the applicant was not a Convention refugee.

[2]         The applicant, born on February 4, 1967, is a citizen of India. He is claiming refugee status, alleging a well-founded fear of persecution in his country owing to his alleged political opinions and his membership in a particular social group. The applicant left his country on March 20, 1998 and arrived in Canada on April 1 of that year. He claimed refugee status the day of his arrival.

[3]         The Refugee Division, after relating the relevant facts of the applicant's story, concluded that he was not credible. The Division's analysis leading to its finding of non-credibility is short and consequently I reproduce it in full:

Having analyzed all the evidence, both oral and written, the panel finds that the clamant is not credible.

The panel examined the claimant's allegations that he was a member of the Traffic police and that he was being persecuted by non-traffic police. The claimant omitted to mention this in his PIF and made the modification on the day of the hearing. This important omission is fundamental to the claim. The claimant's last minute modification is not enough, in the eyes of the panel, to re-establish his credibility. The courts have found that all relevant facts should be included in one's PIF. In addition, the evidence adduced during the hearing reinforces the questionablity of whether the claimant was actually a traffic officer. He was questioned about exhibits P-6 and P-7, documents attesting to his membership in the Chandgarh police force. When asked why there was no mention of his position as a traffic officer, he stated that everyone received generic-type documents. This explanation is squarely contradicted by exhibits A-2 and A-6.1. This documentary piece of evidence talks about the structure of police forces. Under the heading "State Level", we find the following:

In each state there is also a police unit in charge of traffic. Whereas the Indian traffic police in cities and large towns constitute independent police forces which report directly to the commissioners of police of their respective jurisdictions, in the rural areas the regular civil police are also responsible for traffic police duties.

The panel also questioned the claimant with respect to his period of detention in January 1998. He first said that there was no record of his detention or warrants against him. When questioned about exhibit P-9, stating that the police were after him pursuant to the Chandigarh Police Act, he answered that it was to complete the "paper work". This contradiction also undermines the claimant's credibility.

The panel also examined the plausibility of the incident which led to the claimant's arrest in January 1998 and his subsequent escape. The claimant lived in a three-floor apartment building with many other residents, the boy who was seen running from the building was not in the claimant's apartment or anywhere close to the apartment. The police questioned the residents and only the claimant was taken to the police station. Is this scenario plausible? The panel does not believe so, the Indian police have been known to round-up citizens and use forceful means to get what they want. The claimant's allegations hold no logic and are ouf of line with what this panel has seen in numerous other claims.

For all of the above reasons, the panel determines that the claimant, Mr. Gurjit Singh SIDHU, is not a "Convention refugee", as defined in section 2(1) of the Immigration Act.

[4]         The application for judicial review raises two issues: the Minister's participation in the matter, and the finding of non-credibility.

A. The Minister's participation

[5]         Sub-paragraph 69.1(5)(a)(ii) and paragraph 69.1(5)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), and Rule 9 of the Convention Refugee Determination Division Rules (the "Rules"), SOR/93-45, are relevant and they read as follows:

[6]         The applicant's submission concerning the first point appears in paragraphs 1 to 7 of his memorandum, which read as follows:

[Translation]

1.              First, it must be observed that the Minister's representative explained why he was present:

"The reason that I'm present was to question the claimant regarding to [sic] the possibility of being accomplice to crimes against humanity. And which of course was requested by the Panel. (...)

2.              Thus, even before the commencement of this hearing, the panel had informed the Minister or his representative of the possibility that this claim might raise some issues in relation to crimes against humanity committed by the police forces to which the applicant belonged;

3.              It is surprising, to say the least, that the Panel requested the Minister's presence and that nothing was said to this effect in the presence of the applicant;

4.              This rather special procedure, to say the least, is also enhanced [sic] by the fact that the panel held a pre-hearing conference during the hearing without the presence of the applicant and without his consent;

"... but before we start to hear this claim on it's [sic] merits, we will have a pre-hearing conference. So I would ask, uh, the claimant to step outside for a few minutes. Thank you Mister and Maître.

Everyone is back from the hearing, we're back on record. After havint the uh, after having the pre-hearing conference. With all the counsels involved. We will be proceeding now with this claim."

5.              We know nothing about what was said at this conference. No written record was produced. No information was conveyed directly from the panel to the applicant to inform him of the content of this conference that had been held without him;

6.              As can be seen, the panel had, even before commencing the hearing on the merits, an idea that this claim could be the object of an exclusion clause for complicity in some crimes against humanity;

7.              There was no such finding of "complicity in crimes against humanity" against the applicant, but the panel nevertheless already had a biased opinion on this claim. The panel, as we are going to demonstrate, contented itself with reaching an overall finding of non-credibility;

[7]         As the respondent notes, the applicant relies on a phrase by the Minister's representative during the hearing of the claim. This phrase is found at page 459^[1] of the panel's record. Here is what the Minister's representative said:

The reason why I'm present was to question the claimant pertaining to a possibility of having accomplished crimes against humanity. My presence was requested by the panel.

Knowing the burden that the Minister's Representative has concerning crimes against humanity, I have no observations to make on that level; I don't think it's possible for us to meet that burden of proof.

I'd just like to indicate that when I asked the claimant if he has any knowledge of torture or arbitrary arrests perpetrated by the Chandighar police, he indicated no knowledge of that.

[8]         The applicant submits that the panel had unlawfully, on its own initiative, invited the Minister's representative to intervene in a matter that might involve the exclusion for crimes against humanity clause.

[9]         It seems clear to me, from reading the relevant statutory provisions, and more particularly sub-rule 9(2) of the Rules, that the refugee hearing officer has a duty to inform the Minister when, in his opinion, a claim before the Refugee Division involves sections E or F of article 1of the Convention or subsection 2(2) of the Act. In this instance, Dianne Tordorf, the hearing officer, wrote to the Minister's representative on January 7, 1999, as follows:

Please find enclosed the Personal Information Form and Exhibits for the above-mentioned file. According to his PIF, the claimant was a member of the police force in Punjab.

Would you advise us as to the possibility that one of your officers may intervene in this matter as soon as possible. A hearing date is not yet scheduled, but we would appreciate knowing your intentions by January 30.

If you require any further information, please do not hesitate to contact the undersigned.

[10]       This letter doubtless results from a reading of the claimant's Personal Information Form ("PIF") and in particular paragraphs 2 and 3 of his reply to question 37, which read as follows:

2.             Since April 1987, I have been honestly serving the Chandigarh police services. I have never lowered down myself to inhuman indulgences because of which the police force is having a bad reputation.

3.             Though I suffered indiscrimination [sic] as my promotions were delayed but I did not associate myself with crimes against human beings. Despite all this, I was leading a happy life with my wife and children in Chandigarh.

[11]       In view of subsection 9(2) of the Rules, I can only conclude that Ms. Tordorf, in writing to the Minister's representative, was simply carrying out her duty. I note in passing that a copy of Ms. Tordorf's letter to the Minister's representative was sent to the applicant's lawyer. It should also be noted that the Minister's notice manifesting his intention to participate in the claimant's case, pursuant to sub-paragraph 69.1(5)(a)(ii) of the Act, was sent to the Refugee Division as well as to the applicant's lawyer.

[12]       The applicant, in order to support his submissions on this first question, and more particularly his submission that the Refugee Division had a biased opinion of the applicant's claim, submits that the Refugee Division held a pre-hearing conference "during the hearing without the presence of the applicant and without his consent". This argument is without any doubt unfounded. As the respondent notes, the pre-hearing conference was held at the express request of the the applicant's counsel and in his presence. Here is what the evidence discloses, at pages 407 and 408^[2] of the panel's record:

BY PRESIDING MEMBER (TO INTERPRETER)

-               Mr. Chauhan^[3], from you we've received Exhibits P1 to P16.

Q.            Do you have anything you'd like to add this afternoon in terms of exhibits? P1 is the Personal Information Form of the Claimant. Do you have any modifications or changes you'd like to bring at this time?

A.            Yes, sir. First of all, I would like to say before the hearing starts, I would like to have the pre-conference; then we'll ...

-               Let's go through the modifications and the formalities ...

A.            Yes, sir.

-               ... and then we'll have a pre-conference before we actually start on the merits. Okay?

A.            That's okay. ...

[13]       Furthermore, as the evidence at page 412^[4] of the panel record demonstrates, the applicant's counsel was present during the pre-hearing conference. The evidence discloses this:

BY PRESIDING MEMBER

-               Everyone is back into the hearing room, and we're back on record after having a pre-hearing conference with all the counsels involved. We will be proceeding with this claim, and it has been agreed upon by everyone that Maître Gervais, the Minister's Representative, will start with his questions. And then we'll take it from there.

[14]       Consequently, it is apparent on the very face of the record that the applicant's submissions are unfounded. The applicant seems to be objecting, in fact, to the Minister's participation in the case. I am in full agreement with the respondent's submission, in paragraph 12 of its supplementary memorandum:

[Translation] 12. During hearings of the Board's Refugee Division the Minister is usually not represented other than in the specific case in which he decides to avail himself of subsection 69.1(5) of the Act. If no one informed the Minister, it would be hard for him to learn that his exceptional powers under subsection 69.1(5) of the Act could be exercised.

[15]       Contrary to the applicant's submissions, it is not the panel but Ms. Tordorf, the refugee hearing officer, who alerted the Minister's representative to the possible existence of crimes against humanity.

[16]       The applicant's submission that the Refugee Division had, even before the commencement of the hearing, a biased opinion concerning the applicant's claim is not only erroneous but completely frivolous. In my opinion, it is unreasonable to suggest, as the applicant does, that informing the Minister of circumstances that might possibly justify his intervention, constitutes an indication of bias on the part of the Refugee Division. The applicant's first argument is therefore rejected.

B. The finding of non-credibility

[17]       The second question raised by the applicant is the finding of non-credibility by the Refugee Division. The Division concluded that the applicant lacked credibility because he failed to mention in his PIF that he was part of the road traffic division of the Chandigarh police. In the opinion of the Refugee Division, this omission "is fundamental to the claim". In short, the Division cannot understand why, and therefore accept that the applicant failed to indicate in his PIF that his duties within the Chandigarh police force were limited to traffic control.

[18]       Like the Refugee Division, I am unable to understand how the applicant could have forgotten to indicate in his PIF that he was performing duties solely within the traffic division. Above all, considering the fact that the applicant, in paragraphs 2 and 3 of his reply to question 37 of his PIF, took the trouble to distance himself from the Chandigarh police in relation to some crimes against humanity. If the applicant had stated that he was assigned only to traffic, he would not have had to distance himself from the criminal activities of the regular police.

[19]       As the respondent points out, it is the fact that he amended his account on the day of the hearing that sullied the applicant's credibility. Accordingly, I am unable to conclude that the Refugee Division erred on this point.

[20]       As to exhibits P-11 and P-14, these were filed on July 5, 1999, three days before the hearing of July 8. In view of the late filing of these exhibits, and the fact that the applicant failed prior to July 8, 1999 to mention that his responsibilities were limited to traffic control, I am unable to conclude that the Refugee Division erred in assigning no importance to exhibits P-11 and P-14.^[5]

[21]       In regard to the other reasons advanced by the applicant concerning the finding of non-credibility, I am also of the opinion that the Refugee Division committed no error that would warrant my intervention. In the first place, the Refugee Division's finding in relation to exhibit P-9 is not at all unreasonable given the evidence on the record. The Refugee Division could in my opinion see a contradiction in the fact that the applicant had testified about the lack of evidence concerning his detention in January 1998 and the fact that he had also testified that he was being sought under the Chandigarh Police Act.

[22]       As to the arrest in January 1998, the Refugee Division concluded that the applicant's account was improbable. An attentive reading of the transcript of the applicant's testimony concerning his arrest on January 20, 1998^[6] demonstrates that the Refugee Division did not err in finding the account improbable. The numerous questions of the Division and the replies given by the applicant readily convince the reader of the merits of the Division's conclusion.

[23]       For all these reasons, the application for judicial review will be dismissed.

                                                    Marc Nadon

                                                                      J.

OTTAWA, Ontario

February 2, 2001

Certified true translation

Suzanne M. Gauthier, LL.L., Trad. a.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET NO:                         IMM-4330-99

STYLE:                                     GURJIT SINGH SIDHU v. MCI

PLACE OF HEARING:            Montréal, Quebec

DATE OF HEARING: August 10, 2000

REASONS FOR ORDER OF NADON, J.

DATED:                                   February 2, 2001

APPEARANCES:

Michel Le Brun                                                  FOR THE APPLICANT

Thi My Dung Tran                                                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

Michel Le Brun                                                  FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada