Date: 20020128
Docket: IMM-4728-00
Neutral Citation: 2002 FCT 87
BETWEEN:
AMAR SINGH RAWAL
Plaintiff
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review from a decision by the Immigration and Refugee Board (hereinafter "the tribunal") on August 9, 2000 that the plaintiff did not meet the definition of a "Convention refugee".
FACTS
[2] The plaintiff is originally from Nepal, born at Dadeldhura on April 7, 1961. He later moved with his family to Mahendranagar.
[3] He worked for PLAN International, a non-governmental organization (NGO) working in Nepal.
[4] On April 9, 1999 the plaintiff learned that the police forcibly entered his father's printing business and arrested the latter. The police were looking for the plaintiff's brother, Bharat Singh, the leader of an extremist movement.
[5] The plaintiff went to the police station to get news of his father. The plaintiff alleged that he was then arrested, imprisoned and questioned about his brother by inspector Thapa.
[6] The plaintiff and his father fled after paying the police a bribe.
[7] On April 28, 1999 the plaintiff's father learned that his son Bharat Singh had been arrested. Inspector Thapa denied this arrest. During the events surrounding his brother's arrest the plaintiff was beaten, threatened and again arrested. After three days, the plaintiff was released.
[8] On May 17, 1999 the plaintiff's father's business was attacked by extremists for informing the police about Bharat Singh's activities.
[9] The plaintiff subsequently learned that a seminar was planned for members of the Lion's Club in the U.S. The plaintiff took this opportunity to leave Nepal.
[10] The plaintiff was in the U.S. for two weeks, but did not claim refugee status.
[11] The plaintiff arrived in Canada on July 16, 1999 and claimed refugee status on July 26, 1999, alleging that he had a well-founded fear of persecution for his alleged political opinions and membership in a particular social group, that of the family.
POINT AT ISSUE
[12] Did the tribunal render a decision based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it?
ANALYSIS
Applicable standard of judicial review
[13] In Ranganathan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 269 (F.C.T.D.), Evans J. stated:
[45] On the other hand, the Refugee Division's determination of whether the relevant facts satisfy the Rasaratnam test, properly understood, is a question of mixed fact and law, and is reviewable only for unreasonableness.
[14] Later, in Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (F.C.T.D.), Pelletier J. concluded:
The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193.
[15] In the case at bar the conclusions drawn by the tribunal about the plaintiff's credibility were based on facts. Consequently, the applicable standard of judicial review is that of patent unreasonableness.
Plaintiff's credibility
[16] In Aguebor v. Canada (M.E.I.), [1993] F.C.J. No. 732 (F.C.A.), the Federal Court of Appeal indicated the circumstances justifying judicial intervention in the findings of a tribunal about a plaintiff's credibility:
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.
[17] In Razm v. M.C.I., [1999] F.C.J. No. 373 (F.C.T.D.), it was indicated:
It is common ground, and is indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances.
[18] Counsel for the plaintiff raised several problems about the analysis undertaken by the tribunal in the case at bar. First, in its conclusions the tribunal speculated about what the claimant or his father should have done after his brother disappeared. In my opinion, the explanation given by the plaintiff, that he was very afraid, was an entirely plausible explanation in the circumstances and should not have been rejected out of hand, as it was by the tribunal. The tribunal had an uncontradicted version of the facts and, in the circumstances, dismissing it based on speculation constitutes an obvious error.
[19] In Le-Naem v. Canada, 37 Imm. L.R. (2d) (F.C.T.D.), Gibson J. concluded that a court should take into account the plausible and reasonable explanations given by a claimant in determining his credibility:
Here the Applicant, who was nineteen years of age at the time he was in Greece, explained that he had a brother in Canada who had successfully claimed refugee status and that he was therefore anxious to get to Canada. He testified that he had no money and that he stayed in Greece to accumulate sufficient money to come to Canada. He testified that he had heard that refugee protection in Greece was problematic and that he feared deportation to Syria if he exposed his illegal status and tested refugee protection there.
The Tribunal, without reference to the Applicant's age, lack of experience and need for money if he were to be able to achieve his ultimate objective, rejected the Applicant's explanation.
On the facts of this case, I reach an opposite conclusion from that reached by Mr. Justice MacKay. I am persuaded that, in the circumstances of this case, the conclusion of the tribunal that an individual such as the Applicant, with an alleged well-founded fear of persecution, would not sojourn for, in this case approximately a year, in Greece, at risk of being returned to Syria, the country where he claims to fear persecution, was not reasonably open to it.
The explanation provided by the Applicant, considering all of his circumstances, was not an unreasonable one. It is too heavy a burden to place on a young person, impecunious and on his own, in a support, to assume he would inevitably act in a manner that reasonable person, secure in Canada, might regard as the only rational manner. The explanation provided to the tribunal, I conclude, was not so irrational as to support outright rejection. The Applicant chose to weigh one risk, that of being returned to Syria by reason of his of his illegal presence in Greece, against another risk, that of finding himself stranded, perhaps forever, or perhaps without success on a refugee claim, with the result that he would summarily be returned to Syria before realizing his desire to get to Canada. After succeeding in his gamble, on arrival in Canada, he immediately made his Convention refugee claim.
[20] Counsel for the plaintiff further argued that the conclusions regarding a newspaper article in Ampaper in early May 1999 were also unreasonable. The tribunal said:
The long, evasive and inconsistent answers given by the claimant lead the panel to accord no probative value to Exhibit P-12. There is more on that subject.
The claimant left Nepal on June 27, 1999, nearly two months after this article would have been published. He said that he would have lost his job if this employer would have been aware of his problems with the police. The claimant was very vague about the paper's circulation. But he said that nobody at his office ever mentioned that article to him; he, himself, was unaware of it while in Nepal.
[21] I have not been able to reconcile the tribunal's findings in the preceding paragraph with the transcript of the hearing before the tribunal, which actually indicates clear replies:
Applicant: I didn't know that has been published. I ask him if there is anything published about ... inaudible... and about the disappearance of the people and ...inaudible... yes and I asked him to send it to me.
Member: ... inaudible...
Applicant: May 1st, 1999.
Member: Sorry?
Applicant: May 1st, 1999.
Member: ... inaudible...
. . . . .
Interpreter: It's Saturday 1999 May 1st.
Member: May 1st?
Interpreter: Yes.
Counsel: Okay ... inaudible... understand that you were not aware ... inaudible... published, my question is how do you explain that ... inaudible... was this ... inaudible... in a newspaper. How do explain that what happened ... inaudible... was described in the newspaper, how do you explain that?
Applicant: It was published in the paper, I don't know, I went to ask for my brother. I went to the police station and whatever happened ... inaudible... after that.
Member: See sir, the problem is that the inspector does not want anybody to know. He tells you that, yet at the same time there is an article in the newspaper, so the question is it looks odd it got in the newspaper when ... inaudible... are trying to be quiet about it?
Applicant: I don't know who printed it in the newspaper and who did that, I don't have any idea.
. . . . .
Member: ... inaudible... from the original article that as in North America there is a by-law as to the author of the article is, is there anything there that would indicate who wrote the article? Would you translate that for the claimant please?
Interpreter: ... inaudible...
Member: Would you translate for the claimant what we're looking for please?
Applicant: I don't know I just received it.
Member: Yes, but I don't, wasn't expecting the claimant to comment, I wanted to know if there is a name of? No, okay.
Counsel: You just received it that way, you didn't receive the whole newspaper?
Member: Thank you.
Counsel: Okay. After again that, the release, where did you go?
Applicant: I went back to the ... inaudible...
Counsel: Okay, and what happened after?
. . . . .
Member: Sir, after the April 28th event when you were arrested, when did you return to your office?
Applicant: Second of May 1999.
Member: May the 2nd.
Applicant: Yes.
Member: That would be a day after this newspaper article was published, correct?
Applicant: Yes.
Member: Did the, does this, do you know if this newspaper is circulated in Nepalgang, Nepalgang, if I pronounce it correctly. Sir, is it circulated in the town in which you work?
Applicant: I haven't seen it. Maybe it comes but I don't know. I haven't seen it.
Member: Because I'm curious to know if anyone in your office might have seen the article between the 2nd of May and the 17th of May when you went back home?
Applicant: I don't know because nobody told me they saw the news, so I don't know if they see it or not.
Member: Are you familiar with this publication, that's the Ampaper, A M P A P E R, are you familiar with that newspaper?
Applicant: I don't know.
Member: Never heard of it before? Sir, have you ever heard of the Ampaper newspaper before?
Applicant: You mean before?
Member: While yo were living in Nepal.
Applicant: I have ... inaudible... I don't like to read the newspapers. I never do that. I used to go to work and come back to my place.
Member: So, I find it strange to tell you the truth that to a question that requires yes or no, you gave such a long answer, which is besides the point.
Applicant: I'll try.
Member: Because you know there is always a question of credibility, and this panel thinks that you evaded the question, you evaded the answer I mean, and it is something visible. Madam we will take our break unless you still
Member: Just one final question, so are we to conclude sir that even when, as a member of an international association with 200 ... inaudible... that you don't read newspapers, or didn't read newspapers when you were in Nepal. Cause ... inaudible...you didn't read newspapers when you were in Nepal, that's what I understood from your question, answer.
Applicant: I used to read the national papers like ... inaudible... Raising Nepal, this one is from local paper, newspaper so.
Member: This one, what do you mean by this one?
Applicant: This one which you have, the local newspaper, so I'm not used to read that.
Member: This one, what to you mean by this one?
Applicant: This one which you have, the local newspaper, so I'm not used to read that.
Member: The way you talk about it, it is as if it wasn't that trustworthy or something?
Applicant: I'm telling you what I did and what I used to do.
Member: Well my final comment on that sir would be that when I initially asked you if you were familiar with the newspaper, your testimony certainly suggested that you know nothing about it and now I understand, we understand from you [sic] testimony that you know it was a local newspaper.
Applicant: I didn't understand.
Member: Initially sir, your testimony was that you had never seen this newspaper, the Ampaper, you did not appear to have any information as to how large, how wide-spread it was circulated, and now it appears that you know that it was a local paper.
Applicant: I didn't know that the news had been published in this paper. When I was there, I haven't seen this paper with this name.
Member: So, how do you know it's a local paper?
Applicant: When you see the paper you can find it out, it's a local or the national paper.
Member: Thank you.
[22] As counsel for the plaintiff so ably argued, the replies and explanations given by the plaintiff do not appear to have been evasive or contradictory and seem entirely plausible.
[23] It would not seem necessary to consider the other points raised by the plaintiff regarding plausibility for purposes of analysis since, in my opinion, the tribunal considered the plaintiff's arguments carefully and its findings on the reasons put forward by the plaintiff seem reasonable to me in the circumstances.
[24] Armson v. M.E.I., 9 Imm. L.R. (2d) 150 (F.C.A.), at 157-158, states:
After carefully reading the applicant's evidence in its entirety, I agree with the explanation offered by counsel for the applicant. This is a small matter when considered in the context of the totally of the applicants evidence and, in my view is, inconsequential.
In summary, while this portion of the applicant's evidence may raise questions, it has not been contradicted in any way by other evidence. Actually, counsel for the respondent in his submissions to the Board agreed that "the story related today viva voce has been fairly consistent with that related in '86 at the examination under oath.
Accordingly I conclude, as I did in subpara. (c) supra, that since this portion of the applicant's evidence is not contradicted, is consistent, and is not inherently suspect or improbable, the Board erred in making adverse findings of credibility in respect thereof.
. . . . .
In order that faith may be maintained in the legal system, it is necessary that losing parties be satisfied that they have been fairly dealt with, that their position has been understood by the judge, and that it has been properly weighed and considered. It is, therefore, important that the reasons for a decision be stated, and stated in language that the party who has been dealt the blow can comprehend.
[25] Consequently, I come to the conclusion that the tribunal made a more microscopic analysis of the plaintiff's testimony and that its findings that the replies to the questions put were not plausible in the circumstances seem entirely unreasonable and fully justify this Court's intervention.
[26] Consequently, the Court allows the instant application for judicial review; the matter is accordingly referred back to the Immigration and Refugee Board to be considered by a panel of different members.
[27] Counsel submitted no question for certification.
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Pierre Blais
Judge
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OTTAWA, ONTARIO
January 28, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-4728-00
STYLE OF CAUSE: AMAR SINGH RAWAL v. M.C.I.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 16, 2002
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: JANUARY 28, 2002
APPEARANCES:
JEAN-FRANÇOIS BERTRAND FOR THE PLAINTIFF
FRANÇOIS JOYAL FOR THE DEFENDANT
SOLICITORS OF RECORD:
JEAN-FRANÇOIS BERTRAND FOR THE PLAINTIFF
BERTRAND, DESLAURIERS
Morris Rosenberg FOR THE PLAINTIFF
Deputy Attorney General of Canada
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