Date:
19990929
Docket:
IMM-6323-98
Ottawa,
Ontario, the 29th day of September 1999
Present: The
Honourable Mr. Justice Pinard
Between:
Harjit
SINGH
Applicant
-
and -
MINISTER
OF CITIZENSHIP
AND
IMMIGRATION OF CANADA
Respondent
ORDER
The application for judicial
review of the Convention Refugee Determination Division decision that the
applicant is not a Convention refugee, dated November 4, 1998, is
dismissed.
YVON
PINARD
JUDGE
Certified
true translation
Peter
Douglas
Date:
19990929
Docket:
IMM-6323-98
Between:
Harjit
SINGH
Applicant
-
and -
MINISTER
OF CITIZENSHIP
AND
IMMIGRATION OF CANADA
Respondent
REASONS
FOR ORDER
PINARD
J.:
[1] This is an
application for judicial review of a Convention Refugee Determination Division
decision that the applicant is not a Convention refugee, dated November 4,
1998.
[2] It is
necessary to set out the following passage from the panel’s decision:
To summarize, the
claimant, under suspicion of having links with a known terrorist was allegedly
arrested and detained twice but released both times upon payment of a bribe. On
the other hand, his brother who has no links with terrorists would be in police
custody since April 1995. We do not believe this part of the claimant’s story
who told us that (a) the police never admitted to having arrested his brother
and (b) the police declared that his brother would be released if he, the claimant,
was turned in. It has to be one or the other.
Secondly, his
declarations at port of entry are not compatible with his PIF and testimony.
Even translated over the telephone, his answers are unexplainable. How hard can
it be to translate “Have you ever been in prison?”, and the answer, “No”.
Again, let us point out that his other answers were correct and in keeping with
his story.
As exhibit R-15,
counsel produced a letter from a Dr. Kornacki who concludes that physical
examination of the claimant and his allegations of torture are not
incompatible. . . . In our view, R-15 is simply a narrative: a story was told
to the doctor who concludes that scars on the claimant could be the result of
torture. Nothing more affirmative is to be found in R-15.
[3] It would
appear the decision of the Refugee Division is based purely on the applicant’s
lack of credibility. However, in such a case, it must be recalled, it is not
for this Court to take the place of the Refugee Division where, as here, the
applicant has failed to establish that the panel based its decision on an
erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it (paragraph 18.1(4)(d) of the Federal
Court Act). The Federal Court of Appeal clearly articulated the standard of
deference applicable to credibility findings by such a specialized tribunal in Aguebor
v. Canada (M.E.I.) (1993), 160 N.R. 315, at page 316:
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
better than the Refugee Division is in a position to gauge the credibility of
an account and to draw the necessary inferences? As long as the inferences drawn
by the Refugee Division 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 appellant, 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.
[4] With respect
to the way the panel dealt with the medical report the applicant filed, I see
nothing to warrant this Court’s intervention, as the conclusion of the report
is tied to the truthfulness of the applicant’s account. On this point, I fully
agree with my colleague Madam Justice Reed in Danailov v. M.E.I.
(October 6, 1993), T-273-93, where she said:
. . . With respect to the
assessment of the doctor’s evidence, to find that that opinion evidence is only
as valid as the truth of the facts on which it is based, is always a valid way
of evaluating opinion evidence. If the panel does not believe the underlying
facts it is entirely open to it to assess the opinion evidence as it did.
[5] With respect
to the applicant’s contention that the panel should have commented on the
situation in India at the relevant time, in my view this was unnecessary
because the panel’s perception that the applicant is not credible effectively
amounts to a finding that there is no credible evidence to justify his refugee
claim (see Sheikh v. Canada (M.E.I.) (1990), 11 Imm. L.R. (2d) 81
(F.C.A.)).
[6] Last, I find
no merit to the applicant’s argument that his rights under the Canadian
Charter of Rights and Freedoms (the Charter) were violated through an
unreasonable delay in determining his claim, since no serious prejudice
stemming from the delay was established. On this point, suffice it to refer to
my colleague Mr. Justice MacKay’s decision in Kowalski v. M.E.I.
(1994), 85 F.T.R. 88, in which he expressed the view, based on the Federal
Court of Appeal’s decision in Akthar v. M.E.I., that there must be
evidence of such prejudice for there to be violation of a right guaranteed by
the Charter:
In writing the
applicant raised anew the Charter arguments first raised at the panel
hearing, in particular that his rights to determination of his claim to refugee
status without unreasonable delay was a right secured by the Charter,
and here violated contrary to the Charter, and contrary to principles of
fairness and to principles set out by the Supreme Court in R. v. Askov,
Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C.
81. In my view, these submissions are met and fully dealt with by the decision
of the Court of Appeal in Akthar v. Minister of Employment and Immigration
(1991), 129 N.R. 71; 14 Imm. L.R. (2d) 39, which held that delay in dealing
with the credible basis of a refugee claim is not in itself a violation of Charter
rights. There must be some evidence of prejudice to the applicant, other than
the delay, which gives rise to a claim to breach of Charter rights.
[7] For all these
reasons, the application for judicial review must be dismissed.
YVON
PINARD
JUDGE
OTTAWA,
ONTARIO
September
29, 1999
Certified
true translation
Peter
Douglas
FEDERAL
COURT OF CANADA
TRIAL
DIVISION
NAMES
OF COUNSEL AND SOLICITORS OF RECORD
COURT
NO.: IMM-6323-98
STYLE
OF CAUSE: HARJIT SINGH
v.
MCI
PLACE
OF HEARING: MONTRÉAL, QUEBEC
DATE
OF HEARING: AUGUST 26, 1999
REASONS
FOR ORDER OF PINARD J.
DATED SEPTEMBER
29, 1999
APPEARANCES:
JEAN-FRANÇOIS
FISET FOR THE APPLICANT
CLAUDE
PROVENCHER FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
JEAN-FRANÇOIS
FISET FOR THE
APPLICANT
CLAUDE
PROVENCHER
Morris
Rosenberg FOR
THE RESPONDENT
Deputy
Attorney General of Canada
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