Date: 20091209
Docket: IMM-340-09
Citation: 2009 FC 1259
Ottawa, Ontario, December 9, 2009
PRESENT:
The Honourable Mr. Justice de Montigny
BETWEEN:
NIJJER,
Yadhwinder Singh
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
I.
Facts
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board. In a decision dated December 16, 2008, the RPD found that Yadhwinder
Singh Nijjer (the applicant) was neither a Convention refugee nor a person in
need of protection pursuant to section 97 of the Act and therefore rejected his
refugee protection claim.
[2]
The
applicant is an Indian citizen of the Sikh religion, originally from the Rampur district in
the State of Uttranchal.
[3]
According
to the applicant, Sikh extremists came to the family farm in August 2004 and forced
his family at gunpoint to give them lodging and food. They allegedly left the
next day, ordering the family not to say anything.
[4]
On
August 13, 2004, police officers apparently descended on the family farm. The
applicant allegedly fled, but the police officers, believing that he had sided
with the extremists, demanded that he be brought to the police station, which he
was.
[5]
According
to the applicant, he was detained for four days, the police officers accusing
him of supporting the extremists. Since he refused to admit this, the police
officers allegedly beat and tortured him. Apparently, they finally released him
after receiving a bribe of 40,000 rupees, and he was treated by a physician.
[6]
However,
the police officers purportedly continued to harass the applicant and his
family. On May 25, 2005, a few days after terrorist attacks attributed to the
Sikh extremists, the police apparently arrested the applicant again. Once
again, since he refused to admit that he knew the persons responsible for the
attacks, he allegedly was tortured. He was apparently released six days later,
after the payment of another bribe of 60,000 rupees.
[7]
The
applicant apparently then went to live and work at the home of an uncle in the
State of Punjab. The police
allegedly continued to harass his family and arrested and beat his brother. His
uncle was concerned and apparently asked him to leave.
[8]
The
applicant then purportedly went to New Delhi. His family allegedly
contacted an agent who prepared a student visa application for the applicant.
Once he obtained his visa, the applicant went to Canada. He arrived here
on December 20, 2005, and filed his refugee protection claim on November 29,
2006.
a. The RPD
decision
[9]
From
the outset, the RPD identified the question of the applicant’s credibility as
the issue determinative of his refugee protection claim. It did not find the
applicant credible and rejected his refugee protection claim. The RPD took the
following factors, among others, into account:
a.
The
contradictions between the information provided by the applicant in support of
the student visa application that he signed and the information that he
provided in support of his refugee protection claim, particularly with regard
to his arrests in India;
b.
The
absence of medical documents confirming that the applicant was the victim of
torture, whether they be documents from the physician who allegedly treated the
applicant in India or documents
from a Canadian physician or psychologist. The RPD noted that the applicant had
stated at the hearing that he did not suffer from any after-effects, whether
physical or psychological, from the torture he claims to have undergone. The
RPD, while stating that it is aware of the difficulty a victim may have in
talking about the torture he or she has been subjected to, found such a
complete absence of after-effects to be implausible;
c.
The
fact that the applicant never – even when he was living in Delhi – reported the
mistreatment he allegedly received to the authorities or to non-governmental
organizations. According to the RPD, this diminishes the applicant’s
credibility with regard to the issue of his fear of persecution;
d.
The
fact that the applicant did not submit his refugee protection claim until
eleven months after his arrival in Canada. According to the RPD,
this delay also affects the applicant’s credibility with regard to the issue of
his subjective fear of persecution.
[10]
Finally,
the RPD did not attach any probative value to the affidavit of Sarpanch Baljinder
Singh, a member of the applicant’s native village council, even though it
corroborated the applicant’s statements. According to the RPD, this affidavit was
merely a repetition of a version of the facts that it did not find credible in
the first place.
i.
Issue
[11]
The
only issue in this judicial review is whether the RPD erred in finding that the
applicant was not credible.
III. Standard of review
[12]
Since
the issue is the RPD’s assessment of the applicant’s credibility, the
applicable standard of review is reasonableness: see, for example, Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427, [2008] F.C.J. No. 515. Consequently,
what this Court needs to determine is not so much whether it would have arrived
at the same conclusion as the RPD, but whether the decision falls within “a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J.
No. 9, at paragraph 47.
IV. Analysis
[13]
The
applicant raised several arguments against the RPD’s decision. Although some of
these arguments are more persuasive than others, the fact remains that an
applicant who is seeking to have a decision about his or her credibility set
aside bears a heavy burden. As Justice Mackay pointed out in Akinlolu v. Canada (Minister of
Citizenship and Immigration) (1997),70 A.C.W.S.(3d) 136, [1997] F.C.J.
No. 296, at paragraph 13,
Questions of credibility and weight of evidence are for the
CRDD panel in considering refugee claims. Thus, the panel may reject
uncontradicted evidence if it is not consistent with the probabilities
affecting the case as a whole, or where inconsistencies are found in the
evidence or it is found to be implausible. Particularly where there has been an
oral hearing and the panel's assessment appears clearly dependent, as in this
case, at least in part, upon seeing and hearing the witness, this Court will
not intervene unless it is satisfied that the panel's conclusion is based on
irrelevant considerations or that it ignored evidence of significance. In
short, its decision must be found to be patently unreasonable on the basis of
the evidence before the panel.
[14]
In
this case, the RPD considered the applicant’s testimony and found that it was
not credible for several reasons. The RPD’s findings do not appear to me to be
based on irrelevant considerations and do not ignore evidence of significance.
[15]
First,
the applicant contended that the contradictions between his student visa
application and the information he provided when he submitted his refugee
protection claim do not undermine his credibility. In fact, he argued that these
contradictions are entirely normal, since the agents who prepare visa
applications in India generally use such schemes in order to obtain a
visa for their clients. The applicant merely signed the visa application
prepared by the agent.
[16]
The
visa application may have been completed by a third party, and the person who
completed it may have chosen not to mention the applicant’s arrests so as not
to harm his chances of obtaining the visa. But as the RPD pointed out, the
applicant nevertheless signed the visa application and certified that all the
information provided was complete and true. In these circumstances, the RPD was
entitled to find that the contradictions between his visa application and the
version he provided in his Personal Information Form (PIF) undermined his
credibility. Given the applicant’s level of education, the RPD was entitled to
doubt his contention at the hearing that he had not read the visa application
form submitted to the Canadian consular authorities.
[17]
Moreover,
the applicant asserted that he had not provided a medical report confirming
that he had been the victim of torture because the physician who treated him in
India
categorically refused to give him a written report. He put in evidence, in
support of his claims, a report from Amnesty International describing the
pressures placed on Indian physicians who are called upon to treat victims of
torture. As for the absence of any report from a Canadian physician or
psychologist, the applicant stated that he had not thought of consulting a
health professional since his arrival in Canada since he no
longer felt any after-effects from the torture to which he was subjected.
[18]
It
is true that Rule 7 of the Refugee Protection Division Rules (SOR/2002-228)
provides that a claimant who does not provide acceptable documents establishing
identity and other elements of the claim “must explain why they were not
provided and what steps were taken to obtain them”. The RPD rejected the
applicant’s explanation on the ground that his refugee protection claim was
confidential, implying that the Indian physician who treated him had no reason
to fear reprisals from the authorities in his country. This finding appears
unreasonable to me, since Indian physicians are not necessarily familiar with
the procedure for refugee protection claims in Canada, and may
reasonably fear that a written report would be turned against them despite all
assurances that the applicant could give.
[19]
However,
the explanation given for not providing a report from a Canadian professional
seems much less plausible. The applicant relied, among others, on Attakora
v. Canada (Minister of
Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.), [1989] F.C.J. No.
444 to argue that he did not have to submit such evidence. However, in that
case, there was uncontradicted evidence that the claimant had indeed sustained
an injury such as the one he had described, and that he had had to undergo two
operations in Canada to treat it.
He only needed confirmation of the very specific nature of his injury. In this
context, the Court of Appeal ruled that this deficiency was not sufficient to undermine
the applicant’s credibility. That is not the case here.
[20]
The
applicant’s claim that the RPD acted outside of its expertise in finding that
it was not plausible that the applicant did not experience any after-effects
from the torture he allegedly underwent cannot be accepted. The RPD is a
specialized tribunal, whose members assess the cases of many people who have been
subjected to mistreatment or torture. Based upon that experience, the RPD panel
was entitled to doubt the fact that the applicant, unlike most people in his
situation, did not have any physical or psychological after-effects from the
torture he claims to have undergone.
[21]
The
applicant also argued that his failure to seek protection from the Delhi police can
be explained by his generalized fear of police after his arrests. He claimed
that the RPD erred in rejecting this explanation and asserting that the police
officers in Delhi were
obviously not the same as those who arrested him in his native region.
[22]
It
is obvious to me in reading the RPD’s reasons that the panel properly
understood the applicant’s argument that all Indian police officers are cut from
the same cloth and are not trustworthy. It would, to say the least, be
demeaning and wrong to consider that the RPD confined itself to observing that
New Delhi police officers are not the same as the police officers in the State
of Uttaranchal. Obviously,
the RPD considered that the applicant had not proved that he had tried to seek
state protection before coming to Canada to claim refugee
protection, since it is not sufficient to claim that all the security forces in
a country are corrupt without even asking for their assistance. This is all the
more true in a vast country such as India, where the police
officers in the capital city have no relationship with those who presumably
tortured the applicant and have no interest in protecting them. In any case, the
question of the possibility of obtaining state protection in India is not
really relevant since the very existence of the applicant’s persecution and subjective
fear has not been established, given the applicant’s lack of credibility.
[23]
Finally,
the applicant argued that the RPD erred in holding against him the delay in claiming
refugee protection. Since he did not have to worry about being deported because
he had a visa that was valid for one year, it was normal for him to explore
other more promising possibilities for staying in Canada (including marriage),
especially given that the chances of obtaining refugee status were very slim.
[24]
It
is trite law that a delay in submitting a refugee protection claim, while not
decisive, remains a relevant element that the tribunal may take into account in
assessing both the statements and the actions and deeds of a claimant: Huerta
v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225
(F.C.A.), [1993] F.C.J. No. 271. The claimant knew upon his arrival in Canada that he was
only authorized to stay in Canada for a specific and limited period of time.
Under these circumstances, it was reasonable to expect that he would regularize
his status as soon as possible if he truly feared for his life and physical
integrity in India.
[25]
Finally,
the applicant is claiming that the RPD did not consider all of the evidence in
refusing to attach any probative value to the sarpanch’s affidavit. Relying on Romiluyi
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1194, [2006] F.C.J. No. 1500, he
argued that all of the evidence must be taken into account before a tribunal
can arrive at a negative finding with regard to the credibility of a witness.
[26]
Despite
the RPD’s duty to consider all of the evidence, the finding that a claimant has
no credibility may extend to all of the evidence he or she submits. This is
what the Court of Appeal recognized in Sheikh v. Canada (Minister of
Employment and Immigration), [1990] 3 F.C. 238, and Rahaman v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 89, [2002] F.C.J. No. 302. In
dismissing evidence that merely repeated a version of the facts considered to
be not very credible and improbable, the RPD did not err or breach the general
rule that all evidence must be considered before ruling on the credibility of
an applicant’s account. In this case, the RPD was entitled to consider that the
sarpanch’s documentary evidence was not sufficient to make an account that
otherwise appeared in many respects to be implausible credible.
[27]
For
all these reasons, the RPD’s finding as to the applicant’s lack of credibility
does not appear to me to be unreasonable. Certainly, the applicant took every possible
step to enter into and stay in Canada by filing a false visa application, by foreseeing
the possibility of a marriage, and by claiming refugee protection as a last resort.
The panel was no less entitled to find that the applicant did not establish
that his wish to stay in Canada was based on a real fear of escaping
persecution in India.
[28]
Counsel
did not propose any question for certification, and none will be certified.
JUDGMENT
FOR THESE
REASONS, the application for judicial review is dismissed. No question is
certified.
“Yves de Montigny”
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