Date: 20110617
Docket: IMM-6685-10
Citation: 2011 FC 700
Ottawa, Ontario, June 17,
2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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AJAY KUMAR SHOOR
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Applicant
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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]
This
is an application for judicial review pursuant to s.72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) of the decision
of the Immigration and Refugee Board (the Board) dated October 15, 2010 where
it determined that the applicant is excluded pursuant to section 98 of
the Act and Article 1F(b) of the 1951 Convention Relating to the
Status of Refugees (189 UNTS 150) (Convention).
[2]
For
the reasons set out below, this application shall be dismissed.
[3]
The
applicant is a citizen of India
(Punjab) who came to Canada on August 16, 2008 and
filed a claim for refugee protection pursuant to sections 96 and 97 of the Act
on October 8 of the same year.
[4]
He
fears that if returned to his country he will be killed by a political opponent
named Sukhwinderpal Singh Purewal from the Congress Party and a woman
named Anu Pandey who was an expelled member of the applicant's party the
Bharatiya Janata Party (BJP).
[5]
The
Minister intervened before the Board in this matter, claiming that the
applicant is excluded from protection under article 1(F)(b) of the
Convention because there were serious reasons to believe that he has committed
a serious, non-political crime. The Minister argued that the applicant has been
convicted in absentia under several sections of the Indian Penal Code,
the most serious of which is a conviction under section 342 for wrongful
confinement This section is equivalent to section 279(2) of the Canadian
Criminal Code, R.S.C.,
1985, c. C-46 (CCC), which relates to forcible confinement, an
indictable offense which can lead to a term of imprisonment of not more than
ten years.
[6]
The Board found several inconsistencies
and contradictions in the applicant’s testimony which undermined his
credibility. For example, the applicant gave differing explanations as to why
he did not return to India for his last Court date on September 10,
2008 to defend himself.
[7]
The
Board noted that the evidence showed that there were ‘serious
reasons for considering’ that he had committed a crime in India which
included: his statements admitting to the immigration officer in his
eligibility interview that he was charged; statements in his Personal
Information Form (PIF) indicating that he was charged, granted bail, and
appeared in court; the First Information Report (FIR) outlining the allegations
and penal code charges against him; bail documents; Court-related documents;
and the Minister’s evidence consisting of information from the Canadian High
Commission in New Delhi, who advised the Canadian Border Services Agency that
according to the police, the claimant has been charged under sections 323, 341,
342, and 292 of the India Penal Code and convicted in absentia of
the crimes outlined.
[8]
The
Board considered Moreno v Canada (Minister of Employment and Immigration), [1994] 1 FC 298 (CA), 21
Imm LR (2d) 221 (FCA), which held that the existence of a valid warrant issued
by a foreign country would, absent allegations that the charges are inflated,
satisfy the ‘serious reasons for considering’ requirement. The Board noted that,
in the case at bar, the evidence goes beyond this requirement as there is
evidence of a conviction.
[9]
The
Board also considered the applicant’s evidence that the charges against him
were fabricated, but found that it did little to refute the veracity of the
charges. The Board noted that he was already married at the time that he
supposedly married Anu Pandey, but found that this does not disprove
that he married her, and does not address the kidnapping charges. The Board further
stated that evidence that the applicant’s denial of the charges to the Human
Rights Commission and the police do not constitute evidence of his
innocence.
[10]
The
applicant also submitted a letter to attest that he was at a funeral when the
alleged kidnapping occurred (February 2, 2008) from Gurinder Pal Singh, the son
of the deceased. The Board did not give any weight to this letter because Mr.
Singh had also written an affidavit (Tribunal Record, Volume 2, page 549) which
contradicted the letter by claiming that, on February 2, 2008, the applicant
was attacked and therefore had to flee the house; this affidavit made no
mention of a funeral. The Board questioned the applicant about this
inconsistency but was not satisfied with his explanation. The Board went on to state
that, even if the panel were to ignore the affidavit, the letter only gives the
applicant an alibi between 11am and 2pm. The Board further stated that all of
the letters provided by the claimant from friends merely provide bald
assertions that the charges are false.
[11]
The
panel also considered the applicant’s argument that he was only convicted because
he failed to appear in court and that the in absentia nature of the
conviction is significant. However, the Board rejected this argument, relying
on Zrig v Canada (Minister of
Citizenship and Immigration),
2003 FCA 178, [2003] 3 FC 761, in which the applicant was also convicted in
absentia and the Federal Court of Appeal nonetheless dismissed the case.
[12]
The Board also
considered that the applicant had an opportunity to defend himself in Court,
even if absent and stated that, despite the corruption amongst the police in
India, the judiciary functions independently and is “relatively clean” (decision,
para 22). Based on documentary evidence, it was
satisfied that the applicant was not convicted without due process.
[13]
Finally, the Board found
that jurisprudence establishes that a serious crime is equivalent to one for
which the maximum sentence under Canada’s Criminal Code is at
least ten years (Chan v Canada (Minister of Citizenship and Immigration),
[2000] 4 FC 390, 10 Imm. LR (3d) 167). The Board accepted the Minister’s
submission that the equivalent for the applicant’s conviction is wrongful confinement
pursuant to section 279(2) of the Canadian Criminal Code.
Accordingly, the Board was satisfied that there were serious reasons for
considering that the applicant had committed a serious non-political crime
outside of Canada.
[14]
Both
parties agree that the central question at issue in this case is a finding of
fact, and the standard of review should be the reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47. The Court agrees and as such, will only intervene if the
Board’s decision is found to be outside of the range of possible, acceptable
outcomes that are defensible in respect of the facts and the law (Dunsmuir,
supra, at para 47).
[15]
After a careful
review of the evidence in this file, the written and oral representations by
the parties, the Court finds that the Board provided sufficiently
detailed reasons for rejecting the applicant’s position. The decision
taken as a whole cannot be qualified as being unreasonable.
[16]
Whether or not the
applicant agrees with its conclusion, the Board was entitled to find that the
inconsistencies and contradictions in his testimony and PIF were
unreasonable. As stated in Singh v Canada
(Minister of Citizenship and Immigration), [2003] FCJ No. 1451 (TD), 2003 FC 1146 at para 5, “the Board is not obligated to
accept every explanation offered to it by the applicant and is entitled to
reject explanations that it finds to be not credible based on inconsistencies,
contradictions or implausibilities.” In fact, the applicant is
asking the Court to re-weigh the evidence. This is not the role
of this Court on an application for judicial review unless there is a
demonstration of a reviewable error, which is not the case here.
[17]
Further, the
Court does not agree with the applicant’s argument that the Board
misconstrued evidence. Rather, the Court finds that the Board listed and
analyzed the applicant’s evidence and provided cogent reasons why it
came to the conclusion that there were serious reasons to consider
that the applicant had committed a serious non-political crime outside of Canada.
[18]
With regards to the
Board’s determination that the applicant would not have been convicted without
due process, the Court accepts that this finding is supported by the
documentary evidence. Although the applicant has put forward other documentary
evidence that describes police corruption, the Court does not find that this
evidence is sufficient to disturb the Board’s finding.
[19]
Finally, the Court agrees
with the statement in Akram v Canada (Minister of Citizenship and Immigration),
2004 FC 629, 2004 CarswellNat 1201 at paragraph 15, “the Board need not
mention every piece of evidence in its reasons and it is assumed to have
weighed and considered all the evidence before it, unless the contrary is shown.”
As such, the Court cannot come to the conclusion that the Board failed
to examine any of the documentary evidence in coming to its conclusion. Therefore,
the Court's intervention is not warranted.
[20]
The parties did not
submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that:
1.
The
application for judicial review be dismissed.
2.
No
question is certified.
“Michel
Beaudry”
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