Docket:
IMM-2150-11
Citation:
2011 FC 1514
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa,
Ontario, December 23, 2011
PRESENT:
The Honourable Mr. Justice Boivin
BETWEEN:
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GURWINDER SINGH
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Applicant
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act), for judicial review of the decision
issued March 8, 2011, in which the Refugee Protection Division of the
Immigration and Refugee Board (the panel) determined that the applicant was
neither a Convention refugee nor a person in need of protection under
sections 96 and 97 of the Act.
Facts
[2]
Mr. Gurwinder Singh
(the applicant) is an Indian citizen. He was born in the village of Ramgarh, in
the Indian region of the Punjab, into a traditional Sikh family.
[3]
He
is seeking Canada’s protection because he claims he was persecuted in India by
reason of his political opinion and his membership in a particular social
group—male citizens who practise Sikhism. The applicant says that the Indian
police suspect him and his father of harbouring Sikh militants and sympathizing
with their cause.
[4]
The
applicant states that prior to 2003, the police arrested his father, Nirmal Singh,
twice and tortured him. The reason for these arrests was a visit by Sikh
militants to his father’s home, where the applicant also lived.
[5]
The
applicant also alleges that the police raided his father’s home in mid‑2003.
The police said they wanted to question his father, but he was not there. The
police harassed the rest of the Singh family and ordered them to produce Nirmal Singh
to them. The police maintained that Nirmal Singh had joined the militants.
[6]
The
police raided the applicant’s home again on February 2, 2004. He was
arrested during the incident, then interrogated and tortured.
[7]
He
was released on February 6, 2004, and subsequently received medical treatment
in a hospital.
[8]
On
November 22, 2007, the police raided the Sikh temple in the village and
arrested the applicant and the head priest, Surjan Singh. The applicant
states that they were separated from each other and that he was tortured.
[9]
The
applicant was released on November 25, 2007, when his family secured his
release by paying a bribe. He was then treated in the same hospital where he
had received treatment in 2004 and by the same doctor.
[10]
Surjan
Singh was not released but may have escaped.
[11]
The
applicant’s father told him that an informer had seen Surjan Singh and
that he had commenced legal proceedings against the police.
[12]
The
lawyer for the applicant’s father asked the applicant to testify in the case.
However, the police found out about this and raided his father’s house again
when the applicant was not there. The police ordered the Singh family to
produce the applicant.
[13]
The
applicant maintains that, as a result, he was advised to leave the country. The
applicant arrived in Canada on June 24, 2008. He subsequently applied for
refugee status on July 7, 2008.
[14]
The
Board’s Refugee Protection Division heard the applicant’s application on
December 22, 2010, and issued its decision on March 8, 2011.
Decision that is
the subject of this review
[15]
The
panel found that the applicant had not discharged his burden of establishing
that there was a serious risk of persecution or that he would be personally
subjected to a danger of torture, a risk to his life or a risk of cruel and
unusual punishment if he had to return to his country.
[16]
Other
than a slight variation in the evidence regarding the applicant’s date of birth
(April 25 or June 28, 1984), the panel seems to have concluded that
the applicant’s identity had been satisfactorily established.
[17]
With
respect to the issue of the applicant’s credibility, the panel stated that the
Minister of Citizenship and Immigration, as an intervenor in the proceeding
before the panel, had filed a statutory declaration (SD) dated October 14,
2008, of David Rizzo, First Secretary at the Canadian High Commission in New
Delhi, India. The panel summarized the statements in the SD, which said that
Mr. Rizzo, in the company of Arun Kumar, a migration integrity assistant,
had visited the applicant’s village, Ramgarh, in the Punjab, for the purpose of
ascertaining the applicant’s true identity. The SD stated that Mr. Rizzo met
with a person named Saudagar Singh, the sarpanch or elected chief of the
village, who positively identified the applicant’s photograph and led Mr. Rizzo
and Mr. Kumar to the applicant’s house.
[18]
Outside
the applicant’s house, Mr. Rizzo and Mr. Kumar met Amrik Singh, who
identified himself as the applicant’s uncle. During this visit, Mr. Rizzo asked
the applicant’s uncle whether the applicant “had ever been in trouble with the law
in India” (Panel Decision, paragraph 16). The applicant’s uncle replied
that he had not. The same question was put to the sarpanch, who confirmed what
the uncle had said and wrote a note to that effect, a note that was attached as
an appendix to the SD. The panel also observed that the SD mentioned that,
during Mr. Rizzo’s meeting with the applicant’s uncle, his wife had
answered the telephone. After that call, the uncle’s wife said to
Mr. Rizzo that [translation]
“there were charges against Gurwinder Singh and that the police were
looking for him.”
[19]
In
light of the statements in the SD, the panel drew adverse inferences as to the
credibility of the applicant’s narrative. The panel stated that it had reviewed
the applicant’s testimony, the report on the point of entry interview, the
narrative given in response to question 31 of the applicant’s Personal
Information Form (PIF) as well as dockets IMM-5417, IMM-5500 and IMM-5474. Based
on the evidence before it, the panel commented as follows at paragraph 17 of
its decision:
. . . there
is a glaring discrepancy between
the picture of difficulties and aggressions depicted by the claimant’s
narrative, the affidavit of ex-Sarpanch Jawahar Singh (P-3), and the Medical
report of Dr. Puri (P-4) all of which depict a history of considerable
difficulties with the police. This is in sharp contrast with the picture of
peace and quiet depicted by the uncle, Amrik Singh, and Sarpanch Saudagar
Singh, both orally and in his written note.
[20]
In
addition, the panel presented documentary evidence on India that supported both
theories—the peaceful and the violent. Since there were doubts about the
applicant’s narrative, the panel decided to accept the peaceful theory
established by the SD and chose not to apply the decision in Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 (CA), 31 NR 34 (FCA) [Maldonado]. It
therefore dismissed the applicant’s claim.
Issue
[21]
In
the Court’s view, the only issue is whether the panel erred in finding that the
applicant was not credible.
Statutory
provisions
[22]
The
following provisions of the Immigration and Refugee Protection Act apply
to this proceeding:
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REFUGEE PROTECTION, CONVENTION REFUGEES AND PERSONS
IN NEED OF PROTECTION
Convention refugee
96. A Convention refugee is a person who, by reason of a well-founded
fear of persecution for reasons of race, religion, nationality, membership in
a particular social group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country
of nationality, is outside the country of their former habitual residence and
is unable or, by reason of that fear, unwilling to return to that country.
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NOTIONS D’ASILE, DE RÉFUGIÉ ET DE PERSONNE À
PROTÉGER
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention
— le réfugié — la personne qui, craignant avec raison d’être persécutée du
fait de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle
n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person in need of protection
97. (1) A person in need of protection is a person
in Canada whose removal to their country or countries of nationality or, if
they do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that
risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in
every part of that country and is not faced generally by other individuals in
or from that country,
(iii) the risk is not inherent or incidental
to lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the inability
of that country to provide adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a
class of persons prescribed by the regulations as being in need of protection
is also a person in need of protection.
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Personne à protéger
97. (1) A qualité de personne à protéger la
personne qui se trouve au Canada et serait personnellement, par son renvoi
vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité,
dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se
réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce
pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent
ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de
sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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Standard of
review
[23]
In
accordance with the established jurisprudence, the Court has consistently
applied the reasonableness standard to decisions by the Refugee Protection
Division of the Immigration and Refugee Board, which involve questions of fact,
credibility and assessment of the evidence (Aguebor
v Canada (Minister of Employment and Immigration) (FCA), 160 NR 315, [1993] FCJ No 732; Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339). Consequently, the Court will only intervene if the panel’s
decision is based on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it.
[24]
The
applicant maintains that the panel’s assessment of the refugee claim is unfair
and that the panel erred by assigning too much weight to the SD submitted by
the Minister of Citizenship and Immigration.
[25]
For
his part, the respondent states that the panel’s findings about the applicant’s
credibility were reasonable. After reviewing the facts, the applicant’s
arguments and the statements in the SD, the respondent submits that the panel has
the discretion to “base its findings on internal contradictions,
inconsistencies and evasive statements” (Antonippillai v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 382, 157 FTR 101; Perjaku v Canada (Citizenship and Immigration), 2007 FC 496, [2007] FCJ No 669). The respondent argues that the
information Mr. Rizzo obtained was quite different from the allegations
put forward by the applicant before the panel and that these differences cast
doubt on his narrative.
Analysis
[26]
At
the outset, this case may be summarized as follows: did the panel assign too
much probative value to the SD, to the detriment of the evidence in the record?
For the following reasons, the Court is of the opinion that the panel erred in its
assessment of the evidence.
[27]
The
Court points out than in the SD, Mr. Rizzo, First Secretary at the
Canadian High Commission in New Delhi, India, stated that the purpose of the
visit was to ascertain the applicant’s identity.
[28]
The
Court notes certain incongruities regarding the content of the SD that the
panel relied on. Part of the testimony in the SD—which is in the appendix to
the SD—is not translated (Tribunal Record, page 101). The content of the SD
reflects an interpreter’s translation. A number of questions remain regarding
how the interview was conducted: how long did the interview last? Does the SD
contain everything that was said at the meeting between Mr. Rizzo and the
villagers? Although there is no need to challenge the content of the SD, the
Court is nonetheless entitled to question the probative value of this evidence
and the weight the panel assigned to it.
[29]
Thus,
the Court notes that while the purpose of the visit was to “ascertain the true
identity of the claimant” (Tribunal Record, page 54), the panel states in its
decision that “the original purpose of this trip was to attempt to
ascertain the true identity of the claimant” (Panel Decision, paragraph 11), which
suggested to the panel that the nature of the visit changed (Skripnikov v Canada (Minister of Citizenship and Immigration), 2007 FC 369, [2007] FCJ No
528).
[30]
In
its decision, the panel relied on the statements of the uncle, the uncle’s wife
and the new sarpanch. The Court notes that the applicant’s uncle and the sarpanch
were not under oath when they answered the questions.
[31]
Furthermore,
the panel provided no explanation regarding the fact that it disregarded the
two affidavits filed by the applicant—the affidavits of the former sarpanch and
of Dr. Puri. The panel instead relied on the only question Mr. Rizzo
asked the applicant’s uncle and the former sarpanch: has the applicant ever
had “any trouble with the law in India”? The Court can only note that the answers
were not given under oath and the panel did not put them into context with the
sworn documentary evidence or explain why it disregarded that evidence.
[32]
Last,
the Court notes the panel’s observation at paragraph 18 of its decision
concerning a telephone call received by the applicant’s aunt during the visit
to the village: “This
leaves me in a state of doubt, with the effect that it appears that at least
one family member, the aunt, would say whatever is required to obtain the
sought after result.” With respect, there is no basis for such a finding in
this case.
[33]
For
these reasons and after carefully reviewing the panel’s decision, the
transcript of the hearing and the documentary evidence, the Court finds that
the panel’s decision does not fall “within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, at paragraph 47). Thus, by
relying on the SD and by assigning it the weight that it did as compared to the
documentary evidence in the record, the panel erred. Accordingly, the
application for judicial review will be allowed.
[34]
Neither
party submitted a question for certification.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES as follows:
1.
The
application for judicial review is allowed.
2.
The
matter is remitted for reconsideration by a differently constituted panel in accordance
with the reasons given in this judgment.
3.
No
question of general importance is certified.
“Richard
Boivin”
Certified
true translation
Mary
Jo Egan, LLB
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