Date: 20090916
Docket: IMM-667-09
Citation:
2009 FC 911
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, September 16, 2009
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
NAVJOT
SINGH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision dated
January 12, 2009, by the Refugee Protection Division of the
Immigration and Refugee Board (panel), that
the applicant is not a refugee or a person in need of protection.
[2]
For
the following reasons, the application for judicial review will be dismissed.
Issue
[3]
The
only issue is whether the panel erred in finding that the applicant was not
credible.
Factual background
[4]
The
applicant, Navjot Singh, is a citizen of India and is of
the Sikh religion. He is a farmer and a resident of the village of Agit
Nagar in the province
of Punjab. He alleges that
he was arrested by the police on December 31, 2005, while visiting his friend Baljinder
Singh in the city of Batala, also in Punjab. His friend Baljinder and
Baljinder’s cousin, whom the applicant knows only by the nickname “Vikki”, were
also arrested. The police were particularly targeting the friend’s cousin, who
was wanted by the police in the province of Jammu and Kashmir,
where he lived. Vikki was hiding at the home of his cousin, Baljinder, in
Batala to escape the police in the province of Jammu and Kashmir.
[5]
The
applicant was transferred to the police assigned to his community, in the city
of Beas, and was
tortured and questioned about his activities with militants. Photos of the
applicant and his friend Baljinder Singh in weapons training while they were
army cadets were found by the police during a search of the applicant’s home,
which reinforced their suspicion that the applicant was assisting militants.
[6]
The
applicant and Baljinder were released after a few days and the police handed Baljinder’s
cousin over to the Jammu and Kashmir authorities. This cousin was never found
and his mother asked the applicant and Baljinder to testify against the police
in a complaint she wanted to file. In the end, she did not file the complaint because
the applicant did not want to testify and Baljinder had run away from home.
[7]
The
applicant was arrested a second time on October 10, 2006, after he met a human
rights organization to file a complaint against the police officers who were
harassing him. The applicant claims that he was tortured and questioned about
his ties with militants. He was released after being held for two days, under
the conditions that he report to the police station each month, that he not
file a complaint against the police officers and that he bring them information
about Baljinder Singh and the militants.
[8]
The
applicant instead went to an aunt’s house in the city of Chandigarh before
leaving India on January 12, 2007, for Malaysia with the
help of a smuggler, who obtained a visa for him. The applicant alleges that his
smuggler held him nearly prisoner in Malaysia for approximately five
months before he was sent to Canada with a false passport on June 13, 2007, where
he sought protection on July 19, 2007.
[9]
The
applicant claims that he is still wanted by the police in India, that they
are accusing him of having joined the militants and that he fears being killed
by the police or being falsely accused of a crime of some sort.
Impugned
decision
[10]
The
panel rejected the applicant’s claim, stating that his account was fabricated
and not credible. The panel’s decision is based on its finding that the
applicant’s testimony lacked credibility.
Standard of review
[11]
In
questions of credibility and assessment of evidence, it is well established under
paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c.
F-7, that the Court will intervene only if the panel based its decision on an
erroneous finding of fact made in a perverse or capricious manner or if it made
its decision without regard for the material before it (Aguebor v. Canada (Minister
of Employment and Immigration), (1993), 160 N.R. 315 (F.C.A.), 42 A.C.W.S.
(3d) 886).
[12]
Assessing
credibility and weighing the evidence fall within the jurisdiction of the
administrative tribunal called upon to assess the allegation of a subjective
fear by a refugee claimant (Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), (1998), 157 F.T.R. 35 (F.C.T.D.),
83 A.C.W.S. (3d) 264 at paragraph 14). Before Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, the standard of review that was applicable in comparable
circumstances was patent unreasonableness. Since that decision, the standard has
been reasonableness.
Analysis
[13]
It
is the panel’s responsibility to assess the testimonial and documentary
evidence before it, and the weight to assign to this evidence is entirely
within the purview of the panel, which has sole jurisdiction over the facts (Khangura
v. Canada (Minister of Citizenship and Immigration), (2000), 191 F.T.R. 311, 97
A.C.W.S. (3d) 1228; Hoang v. Canada (Minister of Employment and Immigration),
(1990), 120 N.R. 193, 24 A.C.W.S. (3d) 1140 (F.C.A.); Tawfik v.
Canada (Minister of Employment and Immigration), (1993), 137 F.T.R. 43, 26
Imm. L.R. (2d) 148 (F.C.T.D.)).
[14]
In
so doing, the panel may use its expertise to analyze all of the evidence and
choose that which applies according to the circumstances (Ganiyu-Giwa v.
Canada (Minister of Citizenship and Immigration), (1995), A.C.W.S. (3d)
960, [1995] F.C.J. No. 506 (QL) (F.C.T.D.)). Finally, it is accepted that the
panel does not need to mention in its decision all of the pieces of evidence
before it (Canada (Minister of Employment and Immigration) v. Hundal,
(1994), 167 N.R. 75, 47 A.C.W.S. (3d) 372 (F.C.A.); Randhawa v.
Canada (Minister of Citizenship and Immigration), (1999), 88 A.C.W.S.
(3d) 184, [1999] F.C.J. No. 606 (QL) (F.C.T.D.); Tutu v. Canada (Minister of
Employment and Immigration), (1993), 74 F.T.R. 44, 46 A.C.W.S. (3d)
929 (F.C.T.D.); Ccanto v. Canada (Minister of Citizenship and Immigration),
(1994), 73 F.T.R. 144, 46 A.C.W.S. (3d) 309).
[15]
The
applicant claims that the panel lacked diligence when reviewing the medical
documents and maintains that it was unable to assign any probative value to the
medical documents on the sole basis of its negative assessment of the
applicant’s credibility because these documents, the authenticity of which has
not been challenged, exist independently and corroborate the applicant’s
account (Khaira v. Canada (Minister of Citizenship and Immigration),
2004 FC 1071, 260 F.T.R. 15 at paragraph 21).
[16]
In
Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration), (1998), 157 F.T.R. 35 (F.C.T.D.), 83
A.C.W.S. (3d) 264, and restated in Gill v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 656, 129 A.C.W.S. (3d)
783, this Court noted that the obligation to comment on documentary evidence in
a decision depends on the importance of that evidence. In this case, the
applicant alleges that the ignored documentary evidence concerned facts that
are central to his claim, which renders the panel’s decision unreasonable.
[17]
In
the case at bar, the medical document by Dr. Naveen Khaneja, Exhibit P-7, specifically
mentions the following: “Patient alleged above said medical problems due to the
beating in police custody”. Although the medical reports note that the
applicant had physical injuries, the medical evidence does not demonstrate that
these injuries were actually the result of the alleged events. It is the applicant,
not the doctors, who is claiming that his injuries are the result of police
acts.
[18]
This
Court has confirmed repeatedly that the panel may make a negative finding based
on the fact that a refugee claimant has produced no probative evidence to support
his or her testimony if the panel has credibility concerns (Sinnathamby v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 473, 105
A.C.W.S. (3d) 725; Muthiyansa v. Canada (Minister of Citizenship and Immigration),
2001 FCT 17, 103
A.C.W.S.
(3d) 809).
[19]
In
this case, the applicant was not able to give the complete name of his friend
Baljinder’s cousin Vikki, who is the source of all of his problems, even after
speaking with his mother. The applicant was not able to explain why he was
asked to testify for Vikki’s mother when the police admitted to detaining Vikki
and handing him over to the Jammu and Kashmir authorities. Furthermore,
it seems implausible that the police would have released the applicant if they
suspected that he was involved with militants given that the law stipulates
that he may be detained without eligibility for parole. Finally, the applicant
submitted no probative evidence of his mother’s harassment by the police in India.
[20]
As
noted during the hearing, there was a clerical error when the panel referred to
Exhibit P‑5, a blood donation certificate from the Indian Red
Cross Society dated 06-10-97. However, it is clear from footnote 3 of its
reasons that the panel was referring to the affidavit in Exhibit P-6 because
the exhibit description corresponds to the content referred to by the panel.
The panel therefore considered and commented on the affidavit dated November 6,
2008 (Exhibit P-6), as well as the reasons why it did not attach any probative
value to this exhibit.
[21]
At
the hearing, the applicant also argued that there is no transcript of the
hearing before the panel and that this therefore constitutes a breach of
fairness. I disagree with this argument. In Singh v. Canada (Minister
of Citizenship and Immigration), 2004 FC 363, 135 A.C.W.S. (3d) 903 at
paragraph 3, Justice Martineau of this Court noted the following with respect
to the absence of a transcript:
On the one hand, it has been repeatedly
established that the failure to record proceedings, except when it is provided
by law, does not give rise to recourse for violation of the rules of natural
justice (Canadian Union of Public Employees, Local 301 v. Montréal (City),
[1997] 1 S.C.R. 793 at paragraphs 79-87 (S.C.C.)). On the other hand, the
absence of a transcript, while it is not fatal, can hinder the Court sitting in
review from verifying, inter alia, whether the panel's general finding
of lack of credibility is supported by the evidence in the record and whether
this finding is reasonable. In this case, there is no requirement in the Act
pertaining to the recording of the remarks made at the hearing. The Court must
therefore determine whether the record provided allows it to properly dispose
of this application for review (Ahmed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 739
(F.C.T.D.) (QL), (2000) 182 F.T.R. 312; and Hatami v. Canada (Minister of Citizenship and
Immigration),
[2000] F.C.J. No. 402 (F.C.T.D.) (QL)).
[22]
After
reviewing the panel’s record as a whole, the applicant’s detailed affidavit and
the documentary evidence he submitted to the panel, I am of the opinion that,
despite the absence of a transcript, the record before the Court allows me to
properly dispose of the application for judicial review.
[23]
It
is settled law that the panel is in the best position to assess explanations
provided by applicants on apparent contradictions and implausibilities. It is
not for the Court to substitute its judgment for the findings of fact made by
the panel regarding the credibility of applicants (Singh v. Canada (Minister of
Citizenship and Immigration), 2006 FC 181, 146 A.C.W.S. (3d) 325 at paragraph
36; Mavi v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1 (F.C.T.D.) (QL)). Likewise,
insofar as the panel’s findings are not unreasonable, the Court should not
intervene to set aside the decision (Aguebor, above; Wen v. Canada (Minister
of Employment and Immigration), (1994), 48 A.C.W.S. (3d)
1000, [1994] F.C.J. No. 907 (QL) (F.C.A.); Kumar v. Canada (Minister of
Employment and Immigration), (1993), 39 A.C.W.S. (3d) 1027, [1993] F.C.J.
No. 219 (QL) (F.C.A.)).
[24]
Overall,
I am of the opinion that the applicant, in this case, did not demonstrate that
the panel rendered a decision based on erroneous findings of fact made in a
perverse or capricious manner or without regard for the material before it.
[25]
For
these reasons, the application for judicial review is dismissed. The parties did
not propose any question for certification and this application does not give
rise to any.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that the
application for judicial review be dismissed. No question is certified.
“Richard Boivin”
Certified
true translation
Janine
Anderson, Translator
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-667-09
STYLE OF CAUSE: Navjot
Singh v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: September 10, 2009
REASONS FOR JUDGMENT
AND JUDGMENT: Boivin
J.
DATED: September 16, 2009
APPEARANCES:
Michel LeBrun
|
FOR THE APPLICANT
|
Sylviane Roy
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
Michel LeBrun
Counsel
|
FOR THE APPLICANT
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|