Date: 20000831
Docket: IMM-4574-99
BETWEEN:
RANJIT SINGH SIDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
LEMIEUX J.
INTRODUCTION AND BACKGROUND
[1] Ranjit Singh Sidhu (the Applicant) in this judicial review proceeding, seeks to set aside the August 10th, 1999 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the tribunal) which determined he was not a Convention Refugee.
[2] The Applicant is a citizen of India and a Sikh residing in the Punjab before he fled to Canada claiming a well founded fear of persecution because of the political opinions imputed to him.
[3] The central backdrop to his claim is that the police think he is a Sikh militant or an active supporter of the nationalist movement. The link to Sikh militancy is said to be through his cousin and his brother who joined Shiromani Akali Dal party in 1995.
[4] The Applicant, in his PIF, described a January 20, 1995 incident where he and his brother were arrested, incarcerated and tortured but released three days later on the payment of a bribe. The Applicant also mentioned the July 9, 1997 summoning to the police station after a train had been blown up 80 kilometers from his village. He was questioned about his cousin and other militants but he and his brother were not arrested thanks to the intervention of the village mayor.
[5] The triggering event which led to the Applicant's flight occurred on August 8th, 1998 when one of the family trucks was intercepted by the police who claimed it was in the possession of militants who had fired at them before getting away. The police claimed to have found munitions in the vehicle. The Applicant claims being arrested on August 10th, 1998; his brother was not because he was absent from the family home. The Applicant also claims to have been tortured. He and his brother were accused of having fed and housed the militants and of having provided them the truck. He claims to have been accused of being a militant himself, to have links with his cousin and other Sikh militants and Kashmiris and of being agents of the Pakistani intelligence.
[6] The Applicant was released on August 13th, 1998 again through the intervention of the village mayor as well as other village dignitaries and the payment of a bribe. He claims to have been ordered to produce his brother and the driver of the truck as soon as possible and to report to the police station every month.
[7] He fled to his uncle's house in Delhi but claims that on September 5th, 1998 the police came to his uncle's house inquiring about him and the next day the police came again for the purpose of arresting him. That is when he fled.
THE ERRORS IDENTIFIED BY THE APPLICANT
[8] Counsel for the Applicant claims that the tribunal made three mistakes which warrant this Court's intervention.
[9] First, the Applicant attacks the tribunal's finding the facts alleged by the claimant were incompatible with the documentary evidence the tribunal had from various sources to the effect India was now enjoying relative peace, particularly in the Punjab.
[10] Second, the Applicant challenges the tribunal's finding of implausibility the police would have released the Applicant after the alleged interception of the family truck in August, 1998. The tribunal expressed itself in the following way at page 3 of its decision:
| The transport of arms between Kashmir and India is a very serious crime. Moreover, when the police intercepted the truck, the militants apparently fired on them before getting away, which greatly aggravated the situation. In addition, the claimant and his brother were already suspected of having been collaborators and even militants since 1993. In those circumstances, it is not plausible that the intervention of persons of influence and payment of a bribe would have persuaded the police to release the claimant. |
| It is true that the documentary evidence tells us that bribing the police is common all over India, but that has nothing to do with politics. |
| The documentary evidence does not permit us to believe that, when faced with a situation like the one described by the claimant, the police would have released him so readily. |
[11] Third, counsel for the Applicant argued the tribunal erred in giving no probative value to four corroborating pieces of documentary evidence introduced by the claimant. These were: (1) a February 22nd, 1999 letter from the President of Shiromani Akali Dal confirming the Applicant's brother was an active member of that political party which fought for the human rights of the Sikhs. This letter confirmed that due to police harassment, the Applicant fled India because his life was in danger and if he returned would be tortured and killed later in a fake encounter; (2) two affidavits from the village mayor corroborating his intervention on behalf of the Applicant and his brother after their various arrests; (3) certain photographs and (4) a medical report describing certain wounds on the Applicant's body.
ANALYSIS
[12] In my view, the Applicant cannot succeed in this judicial review application. The errors alleged by his counsel cannot be sustained.
THE FIRST AND SECOND ALLEGED ERRORS
[13] The first error claims a perverse misinterpretation by the tribunal of the documentary evidence. The Applicant argues that documentary evidence in the form of reports by human rights groups shows that in 1998 there were serious troubles in the Punjab: the militants were still active; there were bombings and killings.
[14] I reviewed the documentary evidence referred by the tribunal. There was evidence shading both ways but I cannot reach the conclusion that it was not reasonably open to the tribunal to conclude there was "relative peace" in the Punjab in 1998.
[15] The second error relates to the finding of implausibility drawn by the tribunal. Counsel for the Applicant argues this finding of lack of credibility in the Applicant's story is not based on problems internal to the claimant's testimony but is grounded on extrinsic criteria. The inferences drawn by the tribunal are, accordingly, subject to challenge. The Applicant relies upon the Federal Court of Appeal's decision in Ye v. The Minister of Employment and Immigration (Docket A-711-90, June 24, 1992). He also relies upon the Federal Court of Appeal's decision in Giron v. The Minister of Employment and Immigration (Docket A-387-89, May 28, 1992).
[16] I take the applicable statement in this area of the law as expressed by the Federal Court of Appeal in its July 16, 1993 decision in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. at 315 where Décary J.A., on behalf of the Court said this:
| [4] There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an Applicant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
[17] Another principle is stated by the Federal Court of Appeal in Shahamati v. Minister of Employment and Immigration (Docket A-388-92, March 24, 1994) where Pratte J.A. said this:
| ... We have not been persuaded that the Board's finding on credibility was either unreasonable or perverse. Contrary to what has sometimes been said, the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense. |
[18] Applying the principles expressed in Aguebor and Shahamati, (supra), I conclude the tribunal made no reviewable error in coming to the conclusion, in the circumstances described by the Applicant himself, he would have been released on the payment of a bribe. The incident involved a shootout between the militants and the police, in a farm truck belonging to the Applicant's family in which weapons carried from Kashmir are said to be involved. The tribunal's finding is not unreasonable.
THIRD ERROR -- NO PROBATIVE VALUE TO THE APPLICANT'S
DOCUMENTARY EVIDENCE
[19] As I see it, the issue of the tribunal giving no weight to the village mayor's affidavits and to the party president's letter, is one which involves the weight to be given to evidence. I say this because the transcript shows there was some evidence upon which the tribunal could discard these documents.
[20] In the case of the village mayor's affidavits, the tribunal's finding turned on a timing impossibility of their receipt as well as internal inconsistencies between the two affidavits. In the case of the party president's letter, the evidence shows that what he wrote was based on information told to him by the Applicant's father.
[21] It is a well settled principle that a reviewing court is not entitled to re-weigh evidence properly adduced before an administrative tribunal (See City of Montreal v. Canadian Union of Public Employees, [1997] 1 S.C.R. 793 at 844 where Madam Justice L'Heureux Dubé on behalf of the Court said:
| Courts must not revisit the facts or weigh the evidence. |
See also: Brar v. The Minister of Employment and Immigration (F.C.A., Docket A-987-84, May 29, 1986).
[22] As to the Applicant's challenges on the photos and the medical report, the Court's intervention is not warranted. The tribunal gave no probative value to the photos because these photos did not enable the tribunal to establish a link between them and the testimony of the Applicant. As to the medical report, the tribunal found it could not link the medical report to the Applicant's non-credible story. In my view, the tribunal was entitled to make these findings.
[23] For all of these reasons, this judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
_______________________________
JUDGE
OTTAWA, ONTARIO
August 31, 2000
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