Date: 20091029
Docket: IMM-826-09
Citation: 2009 FC 1088
Ottawa, Ontario, this 29th
day of October 2009
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
BABOO LAL BHAGAT and
KAMLA DEVI BHAGAT
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review by the applicants pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, of
the decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the “Board”), dated January 27, 2009, wherein the Board
found that the applicants were not “Convention refugees” nor “persons in need
of protection”. The Board denied the claim for refugee status on the basis that
the applicants did not have a well-founded fear of persecution and
alternatively, that they did not rebut the presumption of state protection. The
Board found the male applicant’s story as “simply not believable”.
[2]
Baboo
Lal Bhagat and Kamla Devi Bhagat (the “applicants”), are citizens of Pakistan. They are
Hindus and the dominant religion of Pakistan is Islam. The
applicants speak Urdu, Gujrati and English, and an interpreter was present at
the hearing.
[3]
Mr.
Baboo Bhagat worked for the National Bank of Pakistan as a banker
until 1998. He left that position to work full-time as a Bhajan singer. The
“Bhajans” are religious songs originating from two Hindu holy books. Mr. Bhagat
taught Bhajans to the Hindu community in Karachi, Pakistan. Throughout
the testimony, Mr. Bhagat indicated his singing is an inextricable part of his
religion; often referring to it as “preaching”. He is now a well-known and
popular Bhajan singer in Pakistan. He was often called upon
to perform Bhajans at Hindu religious festivals. He states that he began
operating a music academy sometime after resigning from his position at the
bank. The applicants have a son, Prabhat Kanual, who lives and works in Etobicoke, Ontario.
[4]
Mr.
Bhagat claimed that as a result of his religious singing, he has been
persecuted by Muslim extremists. More particularly, he alleged that when he
began singing Bhajans at religious festivals and temples full-time, he became
the target of harassment by Muslim extremists. His description of the
persecution included a claim that Muslim extremists targeted him by throwing
stones and directing children to chant insults at him. The Muslim extremists,
he said, were responsible for threatening phone calls to his home, the
destruction of his music academy as well as an attempt on his life. Further,
Mr. Bhagat stated that the police had refused to provide protection with regard
to two previous incidents. On one occasion, Mr. Bhagat testified that a police
officer demanded a large bribe before being prepared to take any action in
regard to his claim.
[5]
After
the alleged burning of his academy, Mr. Bhagat received a threat from Muslim
extremists that he would be charged with blasphemy if he continued to sing and
preach. He
did not report this incident to police. Fearing for his life, Mr. Bhagat arranged for
visitors’ visas for both he and his wife to travel to Canada. The applicants claimed
refugee status two months after arriving in Canada. It is not in dispute that the female
applicant’s, Kamla Devi Bhagat, claim is dependent on her husband’s. Only Mr.
Bhagat testified at the hearing.
[6]
The Supreme Court of Canada
in Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190, has established that
in matters not pertaining to legal questions but to matters where discretion
and weighing evidence are concerned, a standard of reasonableness is to be
applied. Deference must be given to a tribunal whose expertise lies in the
subject matter under review. This standard is applicable in this case. More
recently, the Supreme Court of Canada in Canada (Minister of
Citizenship and Immigration) v. Khosa,
2009 SCC 12, considered whether the provisions of paragraph 18.1(4)(d)
of the Federal Courts Act,
R.S.C. 1985, c. F-7, governing judicial
review of a federal tribunal, had an impact on the standard of review analysis.
It does. Paragraph 18.1(4)(d) of the Federal Courts Act provides
the Federal Court may grant relief if a federal tribunal “based
its decision or order on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it”. The
applicants allege that the Board’s findings were both unreasonable and made in
a perverse or capricious manner or without regard for the material before it.
[7]
In Aguebor
v. Canada (M.E.I.) (1993), 160 N.R. 315, the Federal Court of Appeal found
that with regard to plausibility of a claimant’s testimony, the
unreasonableness of a decision may be more palpable:
[4] 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. . . .
[8]
Here, it appears that the Board, relying on
the absence of corroborative evidence, inferred that Mr. Bhagat is not
credible because the basis of the claim is implausible.
[9]
Corroborating
evidence is not always necessary to establish the applicant’s subjective fear. The
Board, however, determined that in the particular circumstances of this case, corroborating
evidence of persecution was expected. An absence of corroborating evidence,
then, permitted it to make a negative inference against credibility of the applicant.
The respondent relies on Sheik v. Canada (M.E.I.) (C.A.), [1990] 3 F.C. 238, at
page 244, for its argument that the Board did not err in law when making that
conclusion:
The
concept of “credible evidence” is not, of course, the same as that of the
credibility of the applicant, but it is obvious that where the only evidence
before a tribunal linking the applicant to his claim is that of the applicant
himself (in addition, perhaps, to “country reports” from which nothing about
the applicant’s claim can be directly deduced), a tribunal’s perception that he
is not a credible witness effectively amounts to a finding that there is no
credible evidence on which the second-level tribunal could allow his claim.
[10]
The
respondent argues that a finding of implausibility is sufficient reason for the
Board to conclude that the basis of the claim is not credible. This is a
correct statement of law. The jurisprudence is clear: a finding of
implausibility can impugn the credibility of the claimant. This principle is
affirmed by Leung v. Canada (M.E.I.) (1990), 74 D.L.R. (4th)
313 (F.C.A.).
[11]
In Adu
v. Canada (M.E.I.), [1995] F.C.J. No. 114 (QL), the Federal Court of Appeal
found that it is reasonable to expect documentary evidence of the existence of
a law and stated:
.
. . The “presumption” that a claimant’s sworn testimony is true is always
rebuttable, and, in appropriate circumstances, may be rebutted by the failure
of the documentary evidence to mention what one would normally expect it to
mention.
[12]
In Owusu
v. Canada (M.C.I), [1995] F.C.J. No. 681 (T.D.) (QL), at paragraph 4,
Justice Wetston dismissed the application for judicial review on the basis
that the Board did not err “by requiring that the applicant’s testimony be
corroborated by documentary evidence”.
[13]
In
the case at bar, the Board found that given Mr. Bhagat’s position as a
well-known and lauded singer in the Hindu community, it was reasonable to
expect corroborating reports for his story that Muslim extremists had become
his enemies, were seeking to kill him, that he had an academy and that it
burned. Because they were not from an independent source, the Board accorded
little weight to the two letters from community members as documentary evidence
for corroboration of Mr. Bhagat’s problems with Muslim extremists in Pakistan. The fact that there
was no evidence presented that Mr. Bhagat was charged with blasphemy appears
to have been considered as another implausibility by the Board.
[14]
Upon
reviewing the evidence and upon hearing counsel for the parties, I am not
satisfied that the inferences drawn by the Board are so unreasonable as to
warrant the intervention of the Court. Moreover, the applicants have failed to
show that the Board based its decision on an erroneous finding of fact that it
made in a perverse or capricious manner or without regard for the material
before it (Federal Courts Act, paragraph 18.1(4)(d)).
[15]
This
is sufficient to dismiss the application for judicial review.
[16]
Consequently,
the application for judicial review is dismissed.
JUDGMENT
The application for judicial
review is dismissed.
“Yvon
Pinard”
Email this Content