Date:
20120830
Docket:
IMM-1304-12
Citation:
2012 FC 1038
[UNREVISED CERTIFIED ENGLISH
TRANSLATION]
Ottawa, Ontario,
August 30, 2012
PRESENT: The
Honourable Justice Boivin
BETWEEN:
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GURPAL SINGH
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Applicant
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and
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THE 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 submitted under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c. 27 [the Act] from a decision
rendered January 6, 2012, in which the Refugee Protection Division of the
Immigration and Refugee Panel (the Panel) found that the applicant was neither
a refugee nor a person in need of protection pursuant to sections 96 and 97 of
the Act.
I.
Background
A. Factual
background
[2]
Gurpal
Singh (the applicant) is a citizen of India seeking refugee protection in
Canada under sections 96 and 97 of the Act.
[3]
On
July 12, 2008, the applicant claims he was participating in a cultural program
in Delhi when he was arrested and accused of being a member of a Sikh militant
organization. The police accused him of funding these organizations because he
had travelled outside India a number of times, particularly to
Canada. The applicant was held for two days and tortured. He was released on
July 14, 2008, after paying a large bribe.
[4]
On
September 14, 2008, after a bombing in Bombay, the applicant claims that the
police went to his residence, close to the places targeted by the attacks, and
arrested him again. The applicant submits that he was suspected of being a
member of a Sikh militant group that was responsible for the previous night's
attacks. The applicant states that he was detained for four days and then released
on September 18, 2008, after paying another large bribe.
[5]
Because
of his detention, the applicant explains that he was hospitalized for two days.
On his family's advice, he decided to flee India. The applicant applied for a
Canadian visa and a work permit with the support of the International Sikh
Missionary Centre (ISMC). The applicant states that he hid while his
application was being processed.
[6]
The
applicant received his Canadian visa in December 2008, and left India on
February 18, 2009, arriving in Canada that same day.
[7]
The
applicant filed his refugee claim on March 12, 2009. The hearing before the Panel
took place over two days, November 25, 2011, and December 9, 2011.
B. The
decision under review
[8]
The
Panel rejected the applicant's refugee claim, finding the applicant's story
lacked credibility. The Panel concluded that the applicant did not show a
serious possibility of persecution or that he was a person in need of
protection under the Act.
[9]
At
the hearing, Singh Oberoi, a relative of the applicant and President of the ISMC,
gave testimony that contradicted the applicant's story and alleged that he
invented a fraudulent refugee claim. However, the Panel chose to grant little
probative value to Mr. Oberi's testimony. The Panel also decided to ignore
issues about the applicant's true city of residence and his employment, and
chose to focus on the central issues of the applicant's refugee claim.
[10]
The
Panel doubted the applicant's credibility and rejected his refugee claim.
II.
The
issues
[11]
The
Court feels that the case raises the following questions:
(1)
Did
the Panel breach the principles of natural justice by allowing Oberoi Singh to
testify?
(2) Was the Panel's
decision reasonable?
III.
Relevant
legislative provisions
[12]
The
relevant legislative provisions are reproduced in the Appendix to this judgment.
IV.
Applicable
standards of review
[13]
For
the first question, it is recognized in the case law that the standard of
correctness applies to all issues of law, procedural fairness and violations of
the principles of natural justice (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339).
[14]
As to the second question, whether the Panel
rendered a reasonable decision, the case law has established that the standard
of review for the Panel's findings of fact is reasonableness (Dunsmuir, supra).
The Court must show some deference to the Panel's decision and reasonableness
is assessed in terms of justification, transparency and intelligibility within
the decision-making process (Dunsmuir, supra, at
para. 47).
Question
1: Did the Panel breach the principles of natural justice by allowing
Oberoi Singh to testify?
[15]
The
applicant states that the Panel breached the principles of natural justice by
allowing a third party—Oberoi Singh—to intervene at the hearing. The applicant
claims that this intervention was illegal under the Refugee Protection
Division Rules [the Rules] and the Act, that the intervention constituted a
breach of confidentiality in the applicant's refugee claim and that the Panel assumed
a jurisdiction it did not have. More specifically, the applicant claims that
the Panel did not respect the procedure set out at Rule 25 of the Rules, and
paragraph 170(e) of the Act because the Rules in question only allow the
Minister to intervene. Additionally, the applicant notes that the Panel itself
recognized the following: "[i]n the opinion of the Panel, to call a third
party witness during a hearing would have been inappropriate and, at best,
would have provided information which would have potentially derailed the
attention from the main issues of this claim" (Panel decision, para. 9).
[16]
As
for the respondent, he states that Mr. Oberoi's testimony was allowed because
he complied with the applicable rules, specifically the Act, the Refugee
Protection Division Rules and the Policy on the Treatment of Unsolicited
Information in the Refugee Protection Division, and did not violate the
principles of natural justice. The Court shares this opinion.
[17]
The
Court notes, as the respondent did, that the applicant was represented before
the Panel. Nothing in the applicant's records show that his representative
intervened during or prior to the hearing to object to Mr. Oberoi's testimony.
Moreover, the Court notes that, despite the fact he had the opportunity to
cross-examine the witness and make submissions at the hearing, the applicant's
representative remained silent on this issue.
[18]
Also,
the Court notes that the Panel sent two notices to the applicant before the
hearing, dated November 4, 2011 (Tribunal record, p.122) and November 15, 2011
(Tribunal record, p. 30), informing the applicant of the intervention by
conference call. These notices informed the applicant that he could object to
the testimony and provided him with the opportunity to prepare himself.
Similarly, the Court notes that the November 4, 2011, notice contained a copy
of three poison-pen letters received from Mr. Oberoi and the ISMC (Tribunal
record, pp. 205-213).
[19]
The
Court notes that it is well established case law that a party is responsible
for raising all issues regarding the conduct of the hearing and any alleged
violations of a principle of natural justice at the first occasion—in this
case, during the hearing or prior to it. The Court feels that the applicant did
not suffer any prejudice—moreover, the Panel had granted little probative value
to Oberoi Singh's testimony—and it is too late to raise such an argument at the
judicial review stage (see Toora v Canada
(Minister of Citizenship and Immigration), 2006 FC 828 at para 18, [2006] FCJ 1057; Lawal
v Canada (Minister of Citizenship and Immigration), 2008 FC 861 at para 43,
[2008] FCJ 1082). In light of the preceding, the Court dismisses
the applicant's arguments.
Question 2: Was the Panel's
decision reasonable?
[20]
Second,
the applicant states that the Panel's decision is unreasonable because it
neglected to consider many facts and evidence in question, did not consider the
applicant's main allegation, and did not comment on all the documentary
evidence.
[21]
First,
the applicant claims the Panel neglected to consider that the applicant is a
baptized Sikh priest and ignored this fact when evaluating the likelihood of
his arrests. Similarly, the applicant submits that the Panel failed to assess
the main allegation in his refugee claim: that he was accused of having
facilitated and financed terrorist organizations. The applicant affirms that
the Panel ignored documentary evidence the applicant submitted that showed that
in 2010 the Indian Prime Minister identified Sikhs in Canada as separatists and
militants and instead considered documents that established that explosions in
September 2008, in the capital of Delhi were not the work of Sikh groups but
Muslim groups. Therefore, the applicant submits that his story is likely because
Sikhs caused the explosions in Delhi in 2005.
[22]
Second,
the applicant claims that the Panel did not consider the Canadian medical
report (exhibit C-6) and the PRAIDA medial report that confirm serious injuries
and trauma he experienced. Moreover, the applicant submits that the Panel
neglected to consider relevant documentary evidence—specifically, documents
that showed that extremist groups could have helped each other regardless of
their religious or political affiliation. The applicant also claims that the Panel
did not consider the letter by the secretary of Gurdwara. Pursuant to Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No.1425, 157
FTR 35, the applicant claims that the Panel should process these documents
because of their importance.
[23]
Contrary
to the applicant's allegations, the Court feels that the Panel's decision was
reasonable and supported by the evidence on record. The Panel drafted a clear
and coherent decision that provided many reasons for doubting the applicant's
credibility. The Court feels it is appropriate at this point to repeat the Panel's
findings regarding the applicant's credibility:
[translation]
·
The
Panel found that the evidence showed that the Indian police forces did not
target Sikh militants but rather Moujahideen groups and other Muslim extremists
based in Pakistan as being responsible for the bombings in September 2008. The Panel
noted that it was surprising the police force had arrested and detained the
applicant considering his profile as Sikh militant associated with the
separatist movements in Punjab. The Panel also noted that the applicant could
not provide any satisfactory explanations for these matters.
·
The
Panel noted that the only evidence the applicant submitted about his arrests were
the medical notes from the Shams Health Care (Tribunal record, pp 95-97) that
the Panel considered vague and had errors.
·
The
Panel noted that the applicant could not provide detailed explanations about
the treatment he received following the torture inflicted at the hands of the
police during his detention.
·
The
Panel found it unlikely the applicant would have been arrested and accused of
being involved with Sikh militant groups twice. Moreover, the Panel found it
was unlikely that the applicant would have simply been released after paying a
bribe after being arrested for his alleged involvement in the bombing in Bombay.
·
The
Panel found it unlikely that the applicant would have been able to obtain a
Canadian visa and leave the country with his own identification if he was
suspected of having ties with and funding terrorist organizations.
·
The
Panel found it strange that the applicant indicated he had not experienced any
problems in India from September 2008 to February 2009 when letters from his
wife showed hundreds of police visits during the applicant's absence.
·
The
Panel noted that the letters written by the applicant's wife were very similar
and contained repeated passages.
[24]
Contrary
to the applicant's proposals, the Court feels that the Panel considered the
central issues of the refugee claim. Although the applicant claims the Panel
did not rule on the applicant's claim that he is at risk as a baptized Sikh priest,
this ground for refugee claim is new and was not raised during the hearing
before the Panel. As a result, the Court cannot fault the Panel for not taking
this personal characteristic into consideration, as the judicial review of a
decision should proceed only on the evidence that was available to the
administrative tribunal (Ghotra v Canada (Minister of
Citizenship and Immigration), 2009 FC 764 at para 14, [2009] FCJ 924; see
also Paramanathan v Canada (Minister of Citizenship and
Immigration), 2012 FC 338 at para 15, [2012] FCJ No. 377).
[25]
As
for the applicant's injuries, although the evidence shows he did in fact break
his collarbone at some time, the evidence does not in any way indicate that
this injury was caused by the police during his detention. The Panel could also
reasonably find that it was surprising that, considering the applicant's
claims, the authorities released him so quickly upon the presentation of a
bribe.
[26]
It
is settled law that the Panel is presumed to have considered all the evidence
on file and is not required to comment on each document in its reasons (Florea v Canada (Minister of Employment and Immigration),
[1993] FCJ No. 598).
Similarly, pursuant to Aguebor v Canada (Minister of Employment and Immigration),
[1993] FCA No. 732, 160 NR 315, the assessment of evidence and testimony and
the probative value granted are the Panel's responsibility (see
Li v Canada (Minister of Citizenship and Immigration),
[2002] FCJ No. 470; Shahamati v Canada (Minister of
Employment and Immigration), [1994] FCJ No. 415). It is well-established
Federal Court case law that it is the refugee claimant's responsibility to
prove the key elements of his or her application—something the applicant did
not do in this case.
[27]
A
finding on the lack of credibility is a determining factor in itself (Chan v Canada (Minister of Employment and Immigration),
[1995] 3 S.C.R. 593 at para 147; Salim v Canada (Minister of
Citizenship and Immigration), 2005 FC 1592, [2005] FCJ No.1963; Sellan v Canada (Minister of Citizenship and Immigration), 2008 FCA 381, [2008]
FCJ No.1685).
[28]
The Court feels that the applicant simply disagrees with
the Panel's decision and, considering the above, the Court finds that the Panel's
decision to dismiss the applicant's refugee claim falls within the range of
possible acceptable outcomes that are defensible in respect of the facts and law.
As a result, the application for judicial review is dismissed.
[29]
No
question was raised by the parties for certification.
JUDGMENT
THE
COURT RULES as that:
1.
This
application for judicial review be dismissed.
2.
No
question will be certified.
"Richard Boivin"
Certified
true translation
Elizabeth
Tan, Translator