Date: 20120221
Docket:
IMM-4719-11
Citation:
2012 FC 230
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario,
February 21, 2012
PRESENT: The Honourable
Madam Justice Bédard
BETWEEN:
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TAJINDER SINGH MATHON
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Applicant
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and
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MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
Board) rendered on June 20, 2011, wherein the Board determined that the
applicant was not a Convention refugee or a person in need of protection. The
Board’s decision is based on the applicant’s lack of credibility.
[2]
For the
following reasons, the application for judicial review is dismissed.
I. Background
[3]
The
applicant is a citizen of India and is of Sikh origin. He states that he fears
the police forces that suspected him of having links with terrorist militants.
[4]
His claim
is based on the following allegations. The applicant submitted that, in
November 2005, militants came to the home (family farm) where he lived
with his parents. The militants claimed to be members of the Baba Gurmeet Singh
Group. They forced the family to provide them with food and stayed at the
family farm for a period of approximately three hours. The applicant and his
father told the village council and the police of this visit.
[5]
The
militants were allegedly informed that the applicant and his father told the
police of their visit and they again came to the applicant’s home and
threatened them. They then came back once or twice.
[6]
In
December 2007, the police arrested the applicant to interrogate him
following a bombing at a cinema in Ludhiana. The police told the applicant that
the terrorist militants suspected of being involved in the bombing were hiding
in the area and that the home of the applicant and his family was on a list of
sympathizers who provided shelter to militants. The police detained and beat
the applicant, who was released in the beginning of January 2008 after a
bribe was paid.
[7]
The
applicant submits that following this incident, the police continued to harass
him. The police went to his home three times between January 2008 and
March 2009 and searched the house. In April 2009, the applicant
consulted a lawyer to find out what he could do to stop the police from
harassing him. The lawyer advised him not to file a complaint against the
police. The police were informed that the applicant had consulted a lawyer and
returned to the applicant’s home. The applicant was not there, but the police
ordered his mother to turn him over. The applicant was afraid and decided to
leave the country. He left the family farm in April 2009 and spent two and
a half months in Tandwali. Then, in July 2009, he left the country with
the help of a smuggler. The applicant arrived in Canada on August 8, 2009,
and made a refugee claim upon his arrival.
II. Impugned decision
[8]
The Board
did not believe the applicant’s story that the applicant had been visited by
militants or that the police had arrested him and beat him.
[9]
The Board
initially found that the applicant’s story contained a fundamental implausibility
that discredited his entire story of militants visiting the family farm: the
Board determined that the applicant’s allegation that militants from the group
led by Baba Gurmeet Singh, the Dera Sacha Sauda group, came to his home was
implausible. The Board found that, based on the documentary evidence, the Dera
Sacha Sauda group was not a group of militants, but a religious group.
[10]
The Board
stated in its decision that the applicant’s lawyer pointed out that he had not
said that the militants were members of the Dera Sacha Sauda group, but that
they had presented themselves as being members of this group. The Board also
noted that the applicant’s lawyer argued that the police had never said that
the militants were from the Dera Sacha Sauda group. However, it rejected these
arguments. The Board found that it was plausible that militants could falsely
claim to be members of the Dera Sacha Sauda group, believing that a person like
the applicant would “buy” their story. However, it found it implausible that
the village council and the police could have believed that militants from the
Dera Sacha Sauda group had actually come to the applicant’s home. It also found
it implausible that the police had not pointed out to the applicant that the
visitors could not have been members of the Dera Sacha Sauda group. The Board
added that the applicant had stated in his testimony that the police had
labelled him as a militant because they believed that he was associated with
the group led by Baba Gurmeet Singh.
[11]
The Board
also found that the delay between the applicant’s arrest in December 2007
and the time when he decided to leave the residence in April 2009 was
inconsistent with subjective fear.
III. Issues
[12]
The issue
in this application for judicial review is the reasonableness of the Board’s
decision.
[13]
The
applicant also raised two other issues that there was no need to examine.
[14]
First, the
applicant raised an issue regarding the fairness of the process, stating that
the tribunal record sent by the Board was incomplete because it was missing the
documentation on Punjab submitted by Jean-François Bertrand, who was
representing the applicant during the hearing before the Board.
[15]
On this
point, I understand from the reading of the transcripts of the hearing that
Mr. Bertrand regularly uses in his cases involving citizens of India a
package of documents that he collected. There also appears to be a
misunderstanding between him and the Board as to the requirement of submitting
this package of documents as an exhibit in each of the cases he is acting in. However,
from the transcripts of the hearing, it appears that the Board acknowledged
that the documents in question were admitted as evidence in the record (P-9). Since
these documents were not included in the tribunal record established in
accordance with section 17 of the Federal Courts Immigration and
Refugee Protection Rules, SOR/93-22, the applicant has reason to claim that
the tribunal record is incomplete. I also find that no harm resulted from this
situation since it is not necessary to read these documents to assess the
reasonableness of the decision of the Board that dismissed the applicant’s
claim based on lack of credibility.
[16]
Second,
the applicant claimed that the Board did not address all the arguments made by
Mr. Bertrand in its decision. I find that the Board did not have to
address each argument made by Mr. Bertrand separately and that, further,
its finding on the applicant’s credibility was determinative as to the outcome
of the applicant’s claim. Therefore, it was not necessary for the Board to
continue analyzing other arguments made by the applicant.
IV. Standard of review
[17]
It is well
established that the Board’s findings of fact are reviewable on a standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, at para 53, (2008)
1 SCR
190).
[18]
In Aguebor
v Canada (Minister of Employment and Immigration) (1993) 42 ACWS (3d) 886 at
para 4, 160 NR 315 (FCA), Mr. Justice Décary, writing on behalf of
the Court, addressed the deference to be given to the tribunal’s determination
of the plausibility of testimony, as follows:
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. . . .
V. Analysis
[19]
The
applicant submits that the Board conducted an unreasonable analysis of the
evidence and that it based its decision on implausibilities that were not
implausibilities, which distorted its entire reasoning.
[20]
First, the
applicant insists that the Board’s finding that the group that went to the
applicant’s home could not have been the Dera Sacha Sauda group is not disputed
or determinative; the applicant is not arguing that the individuals were
members of this group, but that they introduced themselves to him and his
family as being members of this group.
[21]
The
applicant also criticizes the Board for having made inferences of
implausibility based on the fact that the police did not tell the applicant
that it was implausible that members of the Dera Sacha Sauda group came to his
home. The applicant argues in this respect that he is not responsible for what
the police did or did not tell him. He also argues that the Board’s view—that
the police should have raised concerns about the individuals’ identity—is pure
conjecture that has no basis in the evidence.
[22]
The
applicant also criticizes the Board for having erroneously attributed the
following statement to him: “The claimant testified that the police had branded
him as a militant because they believe that he is associated with the group
Baba Gurmeet Singh.” According to the applicant, this statement is central to
the Board’s reasoning and is inconsistent with the evidence.
[23]
The
applicant also criticizes the Board for not having made a distinction between
the events of 2005 and those that led to his detention in 2007 and emphasizes
that the events that led to his arrest are related to the bombing in 2007.
[24]
Finally,
the applicant submits that the Board’s finding on the delay in leaving is
unreasonable because it conducted a partial and incomplete analysis of the
evidence. Several events took place after the applicant was arrested and
tortured by the police and that the Board did not consider that: (1) when he
was released, he was suffering from serious wounds; (2) he received other
visits from police between his detention in 2007 and March 2009; (3) in
April 2009, he consulted a lawyer; (4) the police were informed that he
had consulted a lawyer and they again came to the family farm, ordering his mother
to turn him over to police. These are the last events that finally led the
applicant to leave the country. The applicant argues that his explanations were
reasonable and the Board erred in not considering them.
VI. Discussion
[25]
I find
that the Board’s reasoning and findings are part of the possible outcomes based
on the evidence.
[26]
First, it
clearly appears from the applicant’s Personal Information Form (PIF) and his
testimony before the Board that the events of 2005 cannot be isolated from the
events that led to his arrest in 2007. The applicant stated that he feared the
police forces that assaulted him because they suspected him of having links to
the militants. In his PIF, the applicant alleged: “Police said that militants
involved in bomb blast in cinema in Ludhiana were hiding in our area and our
house was already on police list for providing shelter to militants.”
[27]
Further, the
applicant was on the police list because of the events that occurred in 2005 and
in 2006 (visits from militants to his home); thus, these events are the very
basis of the suspicions that led the police to arrest and interrogate him at
the time of the 2007 bombing and are a central element of his story. Because he
was on a list of militant sympathizers, the applicant was of interest for the
police. For the police to have placed the applicant’s name on a list of
sympathizers, it is logical to think that they believed that the applicant had links
with militants. If not, why arrest and assault him to draw information from him
about where the militants suspected of being perpetrators of the bombing were
located? Accordingly, there are two possible assumptions: either the police
believed that the applicant’s visitors in 2005‑2006 were members of the
Dera Sacha Sauda group, or they believed that they were members of another
group that was a militant group. In either case, the identity of the group was
a relevant and significant element.
[28]
The
applicant submitted that he never stated that the police had linked him to the
Dera Sacha Sauda group and that he had only stated that the militants had
introduced themselves in that manner. He further submitted that he never said
that the police had labelled him as having links with Baba Gurmeet Singh’s
group.
[29]
Moreover,
a reading of the transcript of the hearing shows that the applicant’s testimony
on this topic was not very clear and that the following passage from his
testimony supports the Commission’s assertions. When questioned at the
beginning of the hearing about the reasons that led him to claim refugee status
in Canada, the applicant answered that his life was in danger because of the
police. In answering the following question on the reasons for which his life
was in danger, the applicant stated:
Because the police was accusing and
saying that you have links with terrorists. There were saying that incidents of
terrorism and robberies that were taking place in this area that you were
supporting them and that you are giving them shelter as well. At first because
of the police brutality my father died and after that they began to harass me.
Any bomb explosion or any incident which took place in the area they would
arrest me and take me and they would question me.
(Page 347 of the Tribunal Record)
[30]
The
applicant was then questioned regarding the identity of the group that he was
suspected of being affiliated with:
Q: Which terrorist group were you
suspected to be affiliated with?
A: They were saying Gurmeet Ram
Rim (ph).
…
Q: Understand my question was does
the police believe that you are linked with this Gurmeet Ram Rahim group?
A: This is the accusation which
the police put against us that you have links to them.
(Pages 347-348 of the Tribunal
Record.)
[31]
It is not
unreasonable to infer from these answers that the applicant was of the opinion
that the police suspected that he maintained links with the Dera Sacha Sauda
group.
[32]
Later,
during his testimony, the applicant stated that the police had not said which
group they suspected he maintained links with. However, it is important to note
that this question was asked relating to the events of December 2007 and
the people suspected of being the perpetrators of the bombing:
Q: At the times, all the times
when you were arrested by the police I think it was twice, am I correct?
A: No, once.
Q: It was just once, okay, from
the 29th of December to the 5th of January.
A: Yes
Q: Okay. Did the police ever say
what militants they thought you were involved with?
A: They did not tell us.
Q: So they just said militants in
general?
A: They said that the terrorists
that set off the bomb blasts in Ludhiana on the 14th of October 2007 in
the Cinema, that those terrorists are hiding in this area and that they
received news that those terrorists had come in this area. And your house is
already in the police list for having given shelter to terrorists before.
(Page 375 of the Tribunal Record)
[33]
In my
view, one thing is clear: the identity of the suspected group of militants that
visited the applicant in 2005‑2006 is an entirely relevant element in
trying to understand why he was of sufficient interest for the police to arrest
him in 2007, when his name had been put on a list of persons suspected of
having links with terrorist militants. In such a context, and in light of the
evidence, the Board’s findings—that it was implausible for the police to
believe that the visitors were members of the Dera Sacha Sauda group—appear to
me to be reasonable. It is equally reasonable that the Board found it
implausible that the police had not told the applicant that the visitors could
not have been members of the Dera Sacha Sauda group. It is illogical to believe
that the police did not believe that the applicant’s visitors were members of
the Dera Sacha Sauda group, but that it still believed that the applicant’s
visitors were members of some group of militants without raising the question
of his visitors’ identity with him. The burden of proof was on the applicant. The
Board found that the silence of the police was implausible and this finding
appears to me to be reasonable.
[34]
The Board’s
finding regarding the delay before leaving is also reasonable. The applicant
submits that the Board failed to consider the events that occurred after
January 2008 and specifically those of March 2009 to explain the
delay and the circumstances of his departure. I agree that the Board did not
address all the elements raised by the applicant, but the elements used by the
Board were sufficient to justify its decision and make it reasonable. The
applicant continued to live at the family farm after he was assaulted by the
police although the police continued to harass him. This alone could reasonably
support the finding that the applicant’s conduct was inconsistent with
subjective fear.
[35]
For all of
these reasons, I find that the Board’s assessment of the evidence and the
implausibilities that it raised and the conclusions that it drew as to the
applicant’s credibility fall within the range of possible outcomes in respect
of the applicant’s allegations and the evidence submitted. The Court’s intervention
is not warranted.
[36]
The
parties did not propose a question that warrants certification and no question
arises in this file.
JUDGMENT
THE COURT ORDERS AND ADJUDGES
that the
application for judicial review is dismissed. No question is certified.
“Marie-Josée
Bédard”
Certified true
translation
Catherine Jones,
Translator
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