Takhar v. Canada (Minister of Citizenship and Immigration), docket IMM-1961-98

Date: 19990219

Docket: IMM-1961-98

BETWEEN:

     SUKHJEEVAN SINGH TAKHAR

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

EVANS J.:

[1]      This is an application for judicial review pursuant to the section 18.1 of the Federal Court Act, R.S.C. 1985, c. I-2 [as amended] in which the applicant requests the Court to review and set aside a decision dated April 7, 1998 of the Convention Refugee Determination Division of the Immigration and Refugee Board (hereinafter "the Refugee Division") that the applicant is not a Convention refugee.

[2]      The applicant, Sukhjeevan Singh Takhar, is a citizen of India and a Jat Sikh from Rajasthan, a state bordering Punjab. He is 31 years old and lived in a village in Rajasthan until he fled in July 1996 to the state of Gujrat, where he stayed in hiding with an uncle until he went to New Delhi in May 1997, when arrangements were made by an agent to transport him to Canada.

[3]      In August 1997 he arrived at Pearson International Airport, Toronto, where he claimed to be a refugee on the ground that he feared persecution because he was believed to be associated with Sikh militants.

[4]      The Refugee Division heard the applicant"s claim on February 3, 1998 in Calgary, which it denied in a decision dated April 7, 1998. In its reasons for decision, the Refugee Division found that the applicant had been detained and tortured by the Punjab and Rajasthan police in March 1996, and by the Rajasthan police in July 1996 because they believed he was associated with Sikh militants.

[5]      However, the Refugee Division concluded that the applicant was not a refugee because he had an internal flight alternative in the state of Gujrat, where he had lived with his uncle from July 1996 until May 1997. The applicant had testified that he feared that, were he returned to India, the police would track him down in Gujrat and again subject him to detention and torture in an attempt to extract from him information about his alleged associates.

[6]      As evidence that his fear of persecution in Gujrat was well-founded, the applicant stated that, after he had left Gujrat for New Delhi, the Rajasthan police called at his uncle"s house inquiring about the applicant"s whereabouts. However, noting that the Documentation Centre of the Immigration and Refugee Board contained no report of any searches by the Rajasthan police for suspected Sikh militants or their supporters outside the state, the Refugee Division concluded that it did not accept the applicant"s evidence on this point:

[7]      Given the finding that Gujrat did not provide an internal flight alternative, it was not strictly necessary for the Refugee Division to consider the second limb of the test in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.) and determine whether in all the circumstances it would be unreasonable to expect the applicant to seek refuge in that state.

[8]      Nonetheless, the Refugee Division examined the evidence of a psychologist who gave his opinion that the applicant was suffering from post-traumatic stress disorder and, as a result of the interrogation and torture that he had experienced, he has a great fear of police. Consequently, if returned to India, he would be likely to suffer severe depression and other psychological dysfunctions.

[9]      The Refugee Division clearly discounted in part the psychologist"s evidence because he had formed his opinion on the basis of only one interview with the applicant, which had lasted for two and a half hours. Unlike the Refugee Division, the psychologist had not had the benefit of documentary evidence or the questioning of the applicant at the hearing. It concluded, therefore, that it would not be unduly harsh to expect the applicant to seek protection in Gujrat.

[10]      Mr. Mangat, counsel for the applicant, drew my attention to some particular findings of fact made by the Refugee Division that he said were erroneous and made without regard to the material before it. Before turning to these, however, I shall focus on what seems to me the crucial of finding of fact with which the Refugee Division started the Analysis section of its reasons: "The claimant is not a credible witness." There is no doubt that this finding runs through most of the findings of fact made by the Refugee Division in this case.

[11]      Since reviewing courts do not have the benefit of seeing and hearing witnesses give their evidence, they are very reluctant to overturn the trier of fact"s findings of fact that depend on credibility, including findings of credibility. In reviewing a transcript of a hearing, the Court should always remember that it lacks an important item of evidence that was available to the tribunal of first instance when it made its finding of credibility: the manner in which the witness gave his or her testimony. However, this does not mean that findings of fact based on credibility or findings of credibility are necessarily immune from judicial scrutiny. But it does mean that a reviewing court should exercise even more restraint in respect of these findings of fact than of some others that the tribunal may have made.

[12]      The approach to be followed by reviewing courts when considering findings of credibility was defined as follows by Décary J.A. in Aguebor v. Ministre de l"Emploi et de l"Immigration (1993), 160 N.R. 315, 316-7 (F.C.A.):

[13]      In my view, the Refugee Division made something of a false start in the instant case in determining the applicant"s credibility: it attached considerable weight to the fact that the applicant had lied on the Personal Information Form, which he had mailed in after arriving in Canada, by stating that he had had a passport in his own name, which he had given to the agent, and another in someone else"s name, which he had destroyed on the agent"s instructions. In his evidence before the Refugee Division, the applicant admitted that he had never had his own passport and had simply filled in the form as directed by the agent, even though the agent did not travel to Canada with him.

[14]      The fact that this lie seems to have weighed heavily with the Refugee Division when assessing the applicant"s credibility is troubling for two reasons. First, it is not uncommon for those who are fleeing from persecution not to have regular travel documents and, as a result of their fears and vulnerability, simply to act in accordance with the instructions of the agent who organized their escape. Second, whether a person has told the truth about her or his travel documents has little direct bearing on whether the person is indeed a refugee.

[15]      The Refugee Division also found to be non-credible the applicant"s evidence that his cousin, who had introduced him to the militants with whom the police suspected him of associating, had disappeared from his home shortly before the applicant was arrested for the first time in March 1996. The Refugee Division stated that the applicant had testified that he had heard of his cousin"s disappearance only in December 1996 as a result of a telephone conversation between the applicant"s brother and their cousin"s parents. The Refugee Division concluded: "It is implausible that he would have been told about such an important event almost by accident, in December." However, as Mr. Mangat established, it is clear from the transcript of the hearing that the applicant testified that he was first told by the police during his detention in March that his cousin had been arrested.

[16]      In an attempt to demonstrate that Gujrat does not provide an internal flight alternative because there was a serious possibility that the applicant would be persecuted there by the Rajasthan police, the applicant stated that the police had visited his relatives in Rajasthan asking where he was. The Refugee Division did not believe that the Rajasthan police came to look for him in Gujrat, in part because he "could not provide any details regarding the police visit to his relatives". In fact, as the transcript shows, the applicant did specify the relatives whom the police visited.

[17]      The claimant had also testified that his brother had been detained and tortured by the Rajasthan police. However, under questioning, the applicant admitted that his brother had never told him that he had been tortured, nor had he ever asked him. This was because he assumed that anyone who is detained by the Rajasthan police on suspicion of associating with Sikh militants would be tortured as a matter of cause, as he had been. In his evidence, the applicant had first stated that he did not remember when his brother was detained, but was later confident that it was in December 1996, although his brother did not tell him of it until May 1997, in order not to cause the applicant further anxiety after his own interrogation and torture.

[18]      The Refugee Division"s finding about this incident concerning the applicant"s brother is not altogether clear. First, it states that the evidence in the P.I.F. that his brother was detained and tortured was fabricated. Second, however, it then says twice that, as a result of the applicant"s answers to questions put to him at the hearing, it does not believe that his brother was tortured .

[19]      On the evidence before it, this latter finding would seem correct. However, the Refugee Division appears to have regarded as very damaging to the applicant"s credibility as a witness the fact that he stated in his P.I.F. that his brother was tortured, although his brother had never told him this. In the circumstances, it does not seem to be inherently implausible that the applicant would have made this assumption and would not have asked his brother for details. Moreover, it is surely to his credit that, when asked at the hearing, the applicant freely acknowledged his lack of direct knowledge of his brother"s torture. The Refugee Division"s finding about the applicant"s credibility as a witness that it based on this aspect of his account may well have led it to disbelieve that the applicant"s brother was ever detained. It may also have led the Refugee Division more generally to doubt the applicant"s credibility.

[20]      In my view, this case is very close to the line. The Refugee Division clearly misunderstood the evidence in respect of both the circumstances in which the applicant learned of his cousin"s arrest, and the visits made by the Rajasthan police to the applicant"s relatives after he had left. Moreover, the Refugee Division"s finding that the applicant is a non-credible witness rested in part on these mistaken views of the evidence, and on the applicant"s lie about his travel documents and his misleading statement that his brother had been tortured.

[21]      This case ultimately turned on the Refugee Division"s finding that Gujrat was an internal flight alternative because the applicant had no well-founded fear of persecution there by the Rajasthan police. The crucial evidence on this was the applicant"s claim that, while he was in hiding with his uncle in Gujrat, the Rajasthan police came looking for him.

[22]      The Refugee Division did not accept this evidence for two reasons. First, it was inconsistent with the absence of any evidence in the Documentation Centre that the Rajasthan police had ever operated outside the state in search of suspects, or that they had a record of human rights abuses. This contrasts with the well-documented accounts of extra-state activity by the Punjab police. Second, the Refugee Division appears to have fallen back on the view that the applicant generally lacked credibility as a witness in disbelieving his statement that the Rajasthan police had come looking for him in Gujrat.

[23]      Thus, the Refugee Division seems to have been on solid ground when it relied on the absence of any evidence of operations by the Rajasthan police outside the state to negative the well-foundedness of the applicant"s fear of persecution in Gujrat. However, its apparently erroneous findings on facts of secondary importance, and its questionable finding with respect to the credibility of the applicant, do not inspire confidence in the soundness of its ultimate decision.

[24]      However, I have concluded that the applicant has not satisfied me that the Refugee Division"s findings of fact met the strict statutory standard of being made in a perverse or capricious manner or without regard to the evidence before it. The absence of any relevant evidence in the Documentation Centre about the Rajasthan police"s conduct, and the confusion and untruthful statements in parts of the applicant"s testimony, coupled with the demeanour evidence that is not available to me, suffice to provide a rational basis for the Refugee Division"s decision that the applicant did not have a well-founded fear of persecution in Gujrat and that it was therefore an internal flight alternative for him.

[25]      Finally, I must consider the Refugee Division"s conclusion that it was not unreasonable to expect the applicant to avail himself of the internal flight alternative in Gujat. The Refugee Division"s conclusion did not attach as much weight to the psychologist"s report as the applicant thought that it should. However, it is within the specialized jurisdiction of the Refugee Division to decide how much weight to assign to the evidence. In my opinion, the conclusion reached by the Refugee Division was open to it on the evidence and therefore does not call for judicial intervention.

[26]      For these reasons, I dismiss this application for judicial review.

OTTAWA, ONTARIO      John M. Evans

February 19, 1999.      J.F.C.C.