Date: 20010621
Docket: IMM-4612-00
Neutral Citation Number: 2001 FCT 685
ENTRE:
BALKAR SINGH SIDHU
-Partie demanderesse
ET:
LE MINISTRE DE LA CITOYENNETE ET DE L'IMMIGRATION
-Partie défenderesse
REASONS FOR ORDER
TEITELBAUM, J:
[1] Although the oral submissions made at the hearing of this matter were in the French language, in that the applicant in this judicial review application does not understand or speak the French language, and with the consent of his counsel, the Reasons for Order and Order are in the English language.
[2] The applicant, Balkar Singh Sidhu, challenges by way of judicial review the decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"), dated August 1, 2000. The Notice of Decision is dated, as signed, on August 11, 2000. The decision determined the applicant not to be a Convention refugee within the meaning of subsection 2(1) of the Immigration Act (Act).
Background
[3] The background facts relating to the applicant can be gleaned from the decision of the CRDD. They are as follows.
[4] The applicant, Balkar Singh Sidhu, is a 34 year old citizen of India. His claim for Convention refugee status is based on his membership in a particular social group, viz. Sikhs, as well as political opinion.
[5] Before coming to Canada, the applicant resided in the village of Khusropur Dona, in the district of Kapurthala, which lies in the Punjab. The applicant lived on a farm with his wife, parents and brother.
[6] In November 1995, police arrested the applicant's brother and two of his friends, one of whom was alleged to be a militant. The applicant's brother was arrested again in 1996, 1997, and March 1998. After the 1998 arrest, the applicant claims that he asked his brother to stop seeing friends at the family's house and to stop attending meetings.
[7] In May 1998, the applicant's cousin was arrested and allegedly killed. The following month, June 1998, the applicant claims that his brother went into hiding and has not been seen or heard from since.
[8] In October 1998, a police informant was allegedly killed in a nearby village. This prompted police raids, and the applicant and his father were arrested. The applicant claims that he was tortured while in detention. However, he was released after his village council intervened and a bribe was paid.
[9] The applicant was arrested again in April 1999. Police claimed to have discovered explosives in his sugarcane field and alleged that he had links with militants. The applicant claims that the police beat him. Once again, however, he was released upon payment of a bribe and the intervention of his village council.
[10] Police called in the applicant in June and August 1999 in order to elicit information on militants, which the applicant states he was unable to provide. He claims that the police beat him again.
[11] In September 1999, the applicant states that he lodged a complaint with the Khalra Action Committee, denouncing the police brutality he had suffered. Shortly thereafter, the police raided his home. His wife and father were beaten, and the latter was arrested. The applicant's father has not been seen since.
[12] Fearing for his safety, the applicant moved to the province of Uttar Pradesh and stayed with an uncle. Two months later, Uttar Pradesh police searched the uncle's home and arrested the applicant after he had lied about where he was from. The applicant secured his release with the payment of a bribe, and left for Canada.
Board's Decision
[13] The Board accepted the fact that the applicant is a Sikh (young) from the Punjab in India. They go on to say that "this, in itself is not enough to grant refugee status on a Convention ground". This, of course is a correct statement.
[14] The Board referred to documentary evidence that indicates that young Sikh males are not a persecuted group in the Punjab and held that the applicant's claim for refugee status could not be based on membership in that particular social group.
[15] With regard to the political opinion claim, the Board noted that the applicant's brother had been involved with Shiromani Akali Dal since 1994; however, the applicant was never politically active or involved.
[16] The Board states at page 2 of its decision:
With regard to the argument that the claimant belongs to a particular social group, that is, young Sikh male in India, the documentary evidence indicates that:
"Sikhs do not constitute a persecuted group at the present time, and rank and file members of groups that were at one point targeted, are in general terms now safe."
There are other experts that also corroborate the above statement because conditions have improved considerably since the mid-1980 when military and police aggressiveness was pronounced. Dr. Cynthia Mahmood states:
"(...) Conditions in Punjab have greatly improved since the worst days of the early 1990's, and it is no longer accurate to say that any Sikh is at risk of persecution simply because of his religion."
Dr. Mahmood goes on to describe three categories still at risk in Punjab and young Sikh males are not considered a category at risk per se. More recent evidence coming from sources living in India also corroborate the statement that young Sikh males in Punjab are not a category to be considered at risk in India.
The evidence does not suggest that young Sikh males are a specific persecuted group in India. Therefore, the arguments relating to the granting of refugee status based on the premise that the claimant was persecuted because he belonged to a particular social group cannot be said to be ascertained and are not credible given the evidence at hand.
[17] The Board also states on page 3 of its decision "With regard to the other grounds for requesting "Convention refugee" status, that is imputed political opinion, the claimant testified that he himself was not active in politics but that his brother was involved with the Shiromani Akali Dal since 1994".
[18] The Board questioned the veracity of events, in particular, the applicant's delay until 1998 in asking his brother to cease being politically active and associating with the people he had been meeting with. In response to this concern, the applicant said that he only discussed farm business with his brother [See Certified Tribunal Record, transcript, page 583]. The Board held that this was not reasonable.
[19] In its decision, the Board stated, "the claimant has written in his oral testimony that he went to the Khalra Action Committee in September 1998" [Certified Tribunal Record, page 6]. Presumably, one should assume that "written oral testimony" refers to the applicant's Personal Information Form ("PIF"). In his PIF, however, the applicant clearly states that he went to the Khalra Action Committee in September 1999 [Certified Tribunal Record, page 21]. In his testimony, the applicant states that he went to lodge the complaint with the Committee in September 1999 [Certified Tribunal Record, page 589]. However, he also stated, in answer to the question being put to him again, "We went in 1998. We had gone to 1998" [page 590]. The question was then put to him again and he indicated that he had misunderstood, and again stated September 1999.
[20] In its decision, the Board stated that it did not accept the applicant's explanation that he did not understand the question as he was asked it several times and there had been no indication of translation problems thus far.
[21] The applicant had obtained a letter from the Khalra Action Committee, documenting his visit and the reason for it. However, the letter states that the applicant's brother went into hiding in June 1999, not June 1998, which is the date given by the applicant.
[22] The Board questioned why the applicant would wait over a year to lodge his complaint regarding police brutality and his brother's disappearance. It did not accept as reasonable the applicant's explanation that he did not know where the office was located.
[23] The Board also noted that the brother's departure is suspect. The applicant contends that his brother left on his own accord, while the Khalra Action Committee letter states that he disappeared following an arrest.
[24] The Board also questioned the letter's authenticity. It contains an internal contradiction: it states, first, that the applicant and his family gave an affidavit; then it states that they did not provide an affidavit.
[25] The applicant tendered a second letter in support of his refugee claim. This letter is an Akali Dal Amristar party letter. The Board questioned its authenticity as well. In the heading, the letter read, "Shromini Akali Dal", while at the bottom, it read, "Shiromani" [note that the Board mistakenly referred to one of the errant spellings as "Shromani"]. The Board noted that documentary evidence and newspapers indicate that the proper spelling is "Shiromani."
[26] The Board also noted that the applicant discussed problems he had with the police before 1995; however, his PIF was silent on these events.
[27] Finally, the Board held that the psychological report tendered by the applicant could not be considered as determinative of his credibility, as that is a task for the Board. The Board also had doubts about the reliability of the Post Traumatic Stress Disorder diagnosis.
ANALYSIS
[28] I would start the analysis of the applicant's application by quoting Mr. Justice Dubé in the very recent decision of Farhan Sharif and the Minister of Citizenship and Immigration of May 29, 2001, IMM-1816-00, 2001 FCT 542, where he states at page 3, on the issue of credibility:
This Court has consistently held that a finding of a lack of credibility made by the Board is part of its discretionary powers, and where such findings are made, this Court should not readily intrude [Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.)]. The Court should not interfere with the decision of the Board based on evidence that, taken as a whole, could support a negative assessment of credibility [Larue v. M.E.I. [1993] F.C.J. No. 484]. When a decision is made in an assessment of credibility, it is not the role of this Court to substitute its decision for that of the Board even if the Court might not have reached the same conclusion.
[29] I also could do no better than to quote paragraph 6 of the above decision as I am satisfied it applies to the present case before me.
The Board's determination appears to be reasonable in the circumstances. In support of its negative credibility finding, the Board stated the grounds upon which it relied, including examples of the numerous implausibilities and problems arising from the applicant's evidence. Although the Board could have elaborated somewhat further on its reasons for giving the applicant's documentary evidence little value, that by itself does not amount to a reviewable error.
[30] Counsel for the applicant, in his "Mémoire" when presenting his submissions in his application for leave prepared an excellent submission. He analysed virtually every statement made by the Board in its decision.
[31] I do not intend to do the same thing. I accept the words of Mr. Justice Joyal in the case of Miranda v. Minister of Employment and Immigration [1993] 63 F.T.R. 81, paragraphs 3, 4 and 5 where he states:
[3] For purposes of judicial review, however, it is my view that a Refugee Board's decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable. [4] I have now read through the transcript of the evidence before the Board and I have listened to arguments from both counsel. Although one may isolate one comment from the Board's decision and find some error therein, the error must nevertheless be material to the decision reached. And this is where I fail to find any kind of error. [5] It is true that artful pleaders can find any number of errors when dealing with decisions of administrative tribunals. Yet we must always remind ourselves of what the Supreme Court of Canada said on a criminal appeal where the grounds of appeal were some 12 errors in the judge's charge to the jury. In rendering judgment, the court stated that it had found 18 errors in the judge's charge, but that in the absence of any miscarriage of justice, the appeal could not succeed.
[32] In reading the Board's decision, whenever the members discussed the issue of credibility or the issue of inconsistencies, and, I am satisfied, there were many such decisions, it is clearly stated why the Board was of the view that the applicant's evidence was such that it could not accept what was being said by the applicant (see pages 3 and 4).
[33] An inconsistency that the Board made a comment on is found at page 4 of its decision:
The brother's disappearance also is an issue of inconsistency. The claimant indicated that the brother left home on his own account and told nobody of his whereabouts. Yet, the letter of the Shiromani Akali Dal Amritsar alleges that the brother is missing as a result of police arrests. Again we have an unexplained inconsistency which does not enhance the credibility of the claimant.
[34] With due respect to the Board, I do not see any inconsistency. The arrest of the brother by the police is not inconsistent with the brother leaving home "on his own account and told nobody of his whereabouts".
[35] This possible error in the appreciation of the many inconsistencies is not material.
[36] Explanations of various inconsistencies are found on virtually every page of the Board's decision.
CONCLUSION
[37] As I have above stated, notwithstanding the very careful analysis made by counsel for the applicant, I am fully satisfied that there is no reason for the Court to interfere with the Board's well reasoned decision.
[38] The application for judicial review is denied.
[39] Neither party submitted a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
Calgary, Alberta
June 21, 2001
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