Date:
20121023
Docket:
IMM-8929-11
Citation:
2012 FC 1215
Ottawa, Ontario,
this 23rd day of October 2012
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
KAUR, Parmjit,
SINGH, Jashanpreet, and
KAUR, Harmanpreet
Applicants
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
On
December 6, 2011, the applicants filed the present application for judicial
review of
the decision of Diane Sokolyk, member of the Refugee Protection Division of the
Immigration and Refugee Board (the “Board”), pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”). The Board held the applicant and her two children were neither
Convention refugees nor persons in need of protection under sections 96 and 97
of the Act.
[2]
Parmjit
Kaur (the “ applicant”) is a citizen of India. She came to Canada with her two children, Jashanpreet Singh and Harmanpreet Kaur.
[3]
The
applicant claims her husband Kartar Singh is in the United States and is
waiting to cross the border into Canada with an agent.
[4]
The
applicant alleges that in 2007, the Indian police began to harass her husband
because they wanted information about his cousin, who they alleged had dealings
with militants.
[5]
The
applicant claims that in May 2008 her husband, tired of the police harassment,
hired an agent to arrange a way for his family to leave India. The agent obtained U.S. visas, and the applicant, her husband, and their sons
arrived in the United States in October 2008. The applicant claims her husband
planned to return to India when the police would stop harassing him. The
applicant claims she traveled to the United States for the purpose of helping
her husband obtain a visa.
[6]
The
applicant returned to India on December 31, 2008. On January 4, 2009 she claims
the police raided her home and arrested her because they wanted information
about her husband’s whereabouts. At the police station, the applicant claims
she was beaten and that the police burned her left leg. The applicant claims
she lost consciousness. When she awoke, the applicant suspected she had been
sexually abused because she felt soreness in her genital area. After her family
paid a bribe for her release from police custody, the applicant alleges that
she went to the hospital, and that her doctor identified rape as the cause of
her genital soreness.
[7]
The
applicant claims she decided to leave India because she was scared of the
police. With the help of an agent, she claims she left India with her two children on April 3, 2009. The applicant claims she arrived in San Francisco and was met by an agent in contact with her husband. She claims that on
April 8, 2009 the agent drove the family to Canada. In Seattle, the agent
allegedly divided the family up, with the applicant and her children in one
car, and her husband in another. The applicant claims the passports and luggage
of the applicant and her children were in her husband’s car.
[8]
The
applicant claims she has not been in contact with her husband since the agent
divided them into separate cars on April 8, 2009. The applicant believes her
husband may have intentionally abandoned her in Canada because she had been
raped.
[9]
The
agent allegedly dropped off the applicant in a field and she walked across the
Canadian border with her children. The agent met the applicant on the other
side with his vehicle. He drove her and her children to the Sikh Temple in Surrey, British Columbia. The applicant claims the Sikh community in Surrey helped her and her children travel to Montréal and find a lawyer. Her husband had
heard in the Sikh community that his family should claim refugee protection in Montréal, Canada. The applicant claimed refugee protection in Montréal on April 16, 2009.
[10]
The
Board heard the applicant’s claim on September 20, 2011 and issued its decision
on November 4, 2011.
* * * * * * * *
[11]
The
Board found that the applicant was not credible
“about any part of her story,” and therefore concluded that her and her children
were neither Convention refugees nor persons in need of protection under
sections 96 and 97 of the Act.
[12]
The
Board took issue with the applicant’s identity documents. The Board found that
at the hearing the applicant contradicted herself with a previous statement she
had made to the Canada Border Services Agency (“CBSA”) regarding the
whereabouts of her passport and that the absence of her passport reduced the
applicant’s credibility. The Board also attached a low probative value to the
applicant’s identity documents because of the lack of credibility the Board
found in all parts of the applicant’s story.
[13]
The
Board also found that the applicant’s husband’s decision to not claim refugee
status in the United States in 2008 or 2009 reduced the credibility of the
applicant’s alleged arrest in India because the applicant’s claim was related
to her husband’s. Nor did the Board find the applicant credible regarding her
husband’s whereabouts.
[14]
The
Board found the applicant made contradictory statements in her Personal
Information Form (“PIF”) and to the CBSA regarding how she found an agent in India to arrange her 2009 departure for a second trip to the United States. The Board found the
statement in her PIF was not credible given the applicant’s circumstances.
[15]
The
Board also considered a letter from the applicant’s physician which stated the
applicant had been beaten and raped in police custody. The Board found it not
credible that a doctor would make unequivocal statements about the cause of the
applicant’s injuries rather than confining himself to medical issues. The Board
also found the affidavit from the sarpanch of the applicant’s village
had little probative value because of its general content which did not
corroborate the applicant’s alleged rape.
[16]
Finally,
the Board found that the applicant’s story of arriving in Surrey, British Columbia on April 8, 2009 without money, identity documents, or luggage, and
arriving in Montréal on April 16, 2009, was not credible.
* * * * * * * *
[17]
The
fundamental issue the applicant raises in this judicial review is whether the
Board’s credibility determination was reasonable. The standard of review
applicable to the Board’s findings of credibility is reasonableness (M.L. v.
The Minister of Citizenship and Immigration, 2012 FC 763 at para 25; Wu v.
The Minister of Citizenship and Immigration, 2009 FC
929 at para 17; Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190
[Dunsmuir]; Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315
(Fed. C.A.) at para 4).
[18]
Upon
hearing counsel for the parties and upon reviewing the relevant evidence, I
find that the intervention of the Court is not warranted.
[19]
All
of the arguments presented by the applicant amount to a disagreement with the
assessment of the evidence, which is within the discretion of the Board as the
trier of fact.
[20]
In
the present case, the Board proceeded with a thorough analysis of the
allegations upon which the applicant’s claim is based and determined that, for
numerous reasons, she was not credible. The Board’s reasons for doing so are
given in “clear and unmistakable terms” (see Hilo v. Minister of Employment
and Immigration (1991), 130 N.R. 236).
[21]
Upon
reviewing the Board’s decision on the reasonableness standard, I am of the
opinion that the Board’s findings fall within the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47). Although there may be more than one possible outcome, as
long as the Board’s decision-making process was justified, transparent and
intelligible, which I find is the case here, a reviewing court cannot
substitute its own view of a preferable outcome (see the decision of the
Supreme Court of Canada in Khosa v. Canada (Minister of Citizenship and
Immigration), [2009] 1 S.C.R. 339 at para 59).
* * * * * * * *
[22]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[23]
I
agree with counsel for the parties that this is not a matter of certification.
JUDGMENT
The application for
judicial review of the decision of a member of the Refugee Protection Division
of the Immigration and Refugee Board determining that the applicant, Parmjit
Kaur and her two children, Jashanpreet Singh and Harmanpreet Kaur, were not
Convention refugees nor persons in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is
dismissed.
“Yvon
Pinard”
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