Date:
20121130
Docket:
IMM-3832-12
Citation:
2012 FC 1405
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
November 30, 2012
PRESENT: The
Honourable Mr. Justice Martineau
BETWEEN:
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PARAMJEET KAUR
JARNAIL SINGH
GURKIRPAL SINGH
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Applicants
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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]
The
applicants dispute the legality of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the panel) rejecting their
refugee claim on the basis that the principal applicant, Jarnail Singh Manko,
lacks credibility. The question is whether the panel’s conclusion is an
acceptable outcome defensible in respect of the facts and law.
[2]
The
applicants are citizens of India. They stated that they feared for their lives
and safety particularly because the principal applicant had apparently refused
in 2008 to turn a militant in to the police who had worked in his business and
who had worked in his business and had managed to get away from the police
after being arrested. In fact, the applicant was allegedly beaten and his wife,
Paramjeet Kaur, was raped by the police. Following the advice of a “consultant”,
the applicants left India on June 25, 2008, to go to the United States
with a six-month visa. They arrived illegally in Canada on October 3,
2008, and filed their refugee claim a few days later.
[3]
The
applicants claim before the Court today that the panel ignored relevant
evidence without sufficient justification. The evidence corroborates the rape
that the female applicant claimed she had been subject to in prison (a medical
certificate and a letter from a Canadian doctor) and an affidavit from her city
counsellor in India reiterates the general allegations of the applicants. They
also criticize the panel for not considering certain important details (e.g.
the address of the principal applicant’s business on the letterhead; the
limited duration of the visas in Thailand and Malaysia), or having otherwise
arbitrarily disregarded the principal applicant’s reasonable explanations
regarding the business in question and their conduct.
[4]
Having
read the application files of both parties and heard the oral submissions of
their counsel, there is no reason to intervene. It appears to me that the
applicants’ criticisms are unfounded. The panel’s negative credibility finding
is well reasoned and is based on the evidence on the record. Even if the
decision was not perfectly written, it is clear that the panel has considered
the evidence as a whole and the explanations of the principal applicant, which
it could find insufficient or not credible in this case.
[5]
The
principal applicant was not found to be credible, first, because he was unable
at the hearing to answer basic questions from the panel without giving confused
answers or returning to the story submitted in his Personal Information Form
(PIF). Second, the panel found that the principal applicant’s behaviour was “inconsistent
with that of a person who fears for his life”. This determination of lack of
subjective fear is also based on the evidence on the record. In fact, the
applicants also stayed in the United States for several months without making a
claim for asylum.
[6]
The
onus was on the applicants to provide reasonable explanations. According to the
principal applicant, the applicants totally deferred to their “consultant”, to
the point of risking illegal entry into Canada and being returned, when they
had a visa valid for six months in the United States. It was based on the consultant’s
advice—the United States adopted a strict attitude toward immigrants after
September 11, 2001—that the applicants did not claim asylum there. Further,
the same consultant allegedly had already advised the principal applicant to go
to Thailand and Malaysia in 2007 to obtain a Canadian visa. It does not seem
unreasonable in this case that these explanations were rejected.
[7]
Finally,
the trigger for the applicants’ flight was related to the fact that the
principal applicant had not turned a militant who had worked in his business over
to the Indian police. The panel was at liberty to assess the quality of the
evidence provided in this matter by the applicants. Establishing the existence
of the business, the principal applicant’s property and the hiring and identity
of the militant arrested were all relevant factors. The panel found that the
evidence provided was insufficient. For example, the letterhead and the fiscal
identity card submitted as evidence of the principal applicant’s business are
not factors that help to connect the principal applicant to the commercial
activity he testified about. Again, the panel was at liberty to reject the
principal applicant’s explanations on this topic.
[8]
While
the panel could have made a mistake or disregarded certain details, these
errors, if they are errors, even considered cumulatively, are not determinative
in this case. The adjudicator’s decision must be read as a whole. There are
several failings concerning essential elements of the applicants’ refugee
claim. The principal applicant’s manner of testifying, by repeating the content
of the story in his PIF and providing confused answers at the hearing to the
panel’s basic questions also allowed the panel to doubt the credibility of his
testimony. Moreover, it was not unreasonable to find that the applicants’
conduct was inconsistent with that of persons fearing for their life or safety.
To that may be added the weakness of the evidence submitted by the principal
applicant to corroborate a central element of his refugee claim, his business.
[9]
The
panel’s decision concerning credibility is reasonable and relies on the
evidence, or lack of evidence, as the case may be, on the record. In this case,
the panel had no obligation to mention all the documentary evidence, especially
since the panel did not find that the principal applicant’s story was “credible”
such that the panel had not given any weight to the affidavit of the city
councillor, who had never personally witnessed the facts alleged by the
principal applicant. At the risk of repeating myself, I am not persuaded that
the panel’s finding that the principal applicant’s testimony lacked credibility
is unreasonable in this case.
[10]
For
these reasons, this judicial review will be dismissed. No question of general
importance was proposed by counsel and none will be certified by the Court.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that this application for judicial
review is dismissed and no question is certified.
“Luc
Martineau”
Certified true
translation
Catherine Jones,
Translator
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