Date: 20070327
Docket: IMM-5120-06
Citation: 2007 FC 328
Ottawa, Ontario, March 27, 2007
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
PARAMJIT SINGH
PARMINDER KAUR
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of the decision of
Michael Hamelin, of the Refugee Protection Division (the panel), dated
August 16, 2006. The panel determined that the applicants were not “Convention
refugees” or “persons in need of protection”. The panel’s decision was drafted
in English, the evidence is in English, but the parties’ written and oral
submissions were in French, which is why this decision was originally drafted
in French.
ISSUE
[2]
Is
the panel’s decision patently unreasonable?
[3]
For
the following reasons, the answer to this question is negative. As a result,
this application for judicial review will be dismissed.
FACTUAL BACKGROUND
[4]
Citizens
of India, the applicants are the parents of two daughters, born in 1992 and
1994. The girls stayed with family members in Ibrahim Tani, India.
[5]
The
couple arrived in Toronto on July 31, 2005, with visitor’s visas obtained
from an agent whom they had paid eight lakh rupees. At the airport, the
applicants stated to the Canadian authorities that they were visiting the
female applicant’s sister in Toronto.
[6]
There
is a detailed file concerning the applicants’ visa application, including CAIPS
(Computer Assisted Immigration Processing System) notes based on documents
submitted to the Canadian Mission in Chandigarh, India. The notes contain
information that contradicts the principal elements of their claim. The notes
include the following information:
[translation]
Date: 19-07-2005
§
Couple’s
visa application received
§
Printed
visa(s)
[english]
Date: 21-07-2007 (sic)
FILE REVIEW
. . .
§
Intended
duration of visit: 2 weeks
§
Destined
for tourism to visit spouse’s sis
Date: 19-JUL-2005
§
reviewed
avbove (sic) info, considered PA and spouse appear to be reasonably well
established in country, have substantial assets, can afford this trip to
Canada. Invitor’s assets also look quite sufficient. Meet requirements, app
approved, issuing.
[7]
The
visa file contains a letter and a list of documents:
The Canadian Consulate General,
(Visa Section)
SCO 54, 55, 56
Sector 17A,
CHANDIGARH -160017
SUB: APPLICATION FOR
GRANT OF TEMPORARY RESIDENT VISA FOR 21 DAYS I.E. FROM 24-7-2005 TO 14-08-2005
ON THE INVITATION OF MY SISTER-IN-LAW (WIFE’S SISTER) AT ATTEND THE BIRTH
CELEBRATION OF HER SON AND TO SPEND FEW DAYS WITH THEM AND THEIR FAMILY ALONG
WITH MY WIFE PARMINDER KAUR
Dear Sir,
Respectfully, I
may submit that I and my wife Parminder Kaur intend to visit Canada for 3
weeks, on the invitation of my sister-in-law Jasvir Kaur Garha, permanent
resident of Aprt. No. 1208-20 Redgrave Drive, Toronto, Ontario Canada to attend
the Birth celebration of her son Tejvir Multani on 23rd July, 2005.
She has sent Sponsor Declaration, Invitation Card of Birthday Celebration,
Copies of passport of herself, her husband and her son, employment evidences of
both, Savings of both husband and wife in TD Canada Trust, Accommodation Proof,
Immigration Status etc.
I am running
business of Bricks under the name and style of M/S Guru Nanak Brick Industries,
Village Nanda Chaur, Distt. Hoshiarpur, along with Agriculture farming and from
both I am earning Rs. 5,18,940-00 Per Annum. My wife is a Beautician and
running her own beauty shop under the name of Lovely Beauty Centre and earning
approx. Rs. 2.55 Lacs per annum. We have sufficient savings in Oriental Bank of
Commerce, ITL Branch Hoshiarpur vide Saving Account No. 1690 with a balance for
Rs. 6,20,170-00 and The Hoshiarpur Central Co-operative Bank Ltd., Ghorewaha
for Rs. 4, 65,000/- I have two sons, Lovedeep Singh and Amandeep Singh both
are studying.
My sister-in-law
compelled us so many times to visit Canada but due to busy in business and
other activities we could not plan. Now rainy season started and due to rain
production of bricks suffer and in the rainy season we have some spare time
also. So she compelled us to visit Canada on her son’s birthday and said in
this way she and her family will get a chance to spend few days with her
sister.
Keeping in view
the facts referred above our visa for 3 weeks may please be sanctioned for
which I shall be highly obliged.
Thanking you.
Yours
faithfully,
Dated: 18-07-2005
(PARAMJIT
SINGH)
VILL
& p.o. Bhatnura Lubana,
P.S.
Bhogpur, Distt. Jalandhar
page
-2-
LIST OF DOCUMENTS ENCLOSED:
1.
Original
Passports (2)
2.
Visa Fee
Receipts
3.
Sponsor
Declaration
4.
Invitation
Card
5.
Passport
copy of sister-in-law
6.
Passport
copy of brother-in-law
7.
Passport
copy of Nephew
8.
Employment
evidence of sister-in-law and brother-in-law
9.
Saving
Certificate of Sister-in-law
10.
Saving
Certificate of Brother-in-law
11.
Accommodation
evidences
12.
Immigration
Status of the Sponsor
13.
Brick
Industry Licence
14.
Income Tax
Returns for 3 years of myself and my wife with Advance Tax deposited in Bank
receipts
15.
Balance
Sheets, Trading & Profit & Loss Account of myself and wife
16.
PAN Card
of Income Tax of both
17.
Agriculture
Land Record
18.
Sale
vouchers of crop sold in the market
19.
Bank
Statement of Oriental Bank of Commerce and Certificate of Savings
20.
Bank
Certificate of The Hoshiarpur Central Coop. Bank Ltd. and pass book
21.
3
photographs of myself and my wife duly signed on reverse.
[Emphasis in
original]
[8]
The
applicants submit that all the documents are fake. The agent forged them to
obtain the tourist visas so they could then claim refugee status in Canada.
However, they waited for three and a half months, until November 10, 2005,
to file their claims.
[9]
The
male applicant said at his interview with the immigration officer on
December 2, 2005, that police in the state of Punjab were looking for him.
He alleged he was suspected of having terrorist ties because he was a truck
driver and had transported militants in the states of Jammu and Kashmir on
February 2, 2004. He added that, on June 15, 2005, during a police
raid at his home, he was accused of having helped another militant from Punjab,
Jagtar Singh Hawara, who had escaped from Burial Jail. The applicant was
allegedly arrested and tortured for five days.
[10]
The
dates of his arrests, detention and torture are as follows:
§
February
2, 2004 (one day)
§
October
10, 2004 (four days)
§
June 15, 2005
(five days)
[11]
The
female applicant stated that she had been arrested, detained and raped by the
police on June 15, 2005.
[12]
The
applicant sought medical attention after he was released on June 20, 2005.
He then went to his village Sarpanch, who advised him to live elsewhere in
India. Believing he was being sought because he was a baptized Sikh, in July he
decided to leave India permanently.
[13]
As
evidence for their fear of persecution and torture by the police, the
applicants submitted the following documents:
1.
Letter
from Bhogpur Sirwal Truck Union dated June 10, 2006, indicating the
applicant is a truck driver for one of the members of the Union. The applicant
allegedly had problems with the police.
2.
Medical
report from Dr. Surjit Singh dated May 31, 2005, indicating that the
applicant had been treated at his clinic on:
[translation]
i.
February 3,
2004
ii.
October 14,
2004
iii.
June 20,
2005
He suffered from multiple internal and
external injuries, swelling, bruises, etc.
. . .
On June 16, 2005, the female
applicant was allegedly admitted to his clinic (i.e., Dr. Singh’s clinic) following
a rape committed by the police.
3.
Affidavit from
the Sarpanch dated June 10, 2006, indicating that the principal applicant
is a truck driver and that he had problems with the police after having helped
two strangers. The principal applicant was allegedly arrested and beaten three
times, and his wife was allegedly arrested and raped by the police.
4.
Letter
dated May 17, 2006, from Dr. Gilles de Margerie, of Clinique Santé Accueil,
a medical clinic in Montréal. The doctor states that the female applicant has
been a patient of the clinic since March 2006, and the principal applicant has
been a patient since December 2005.
Dr. de Margerie made
the following diagnosis:
[translation]
·
Mr. Singh:
chronic post-traumatic pain, painkillers recommended
·
Ms. Kaur:
major depression or post-traumatic depression syndrome, psychotherapy follow-up
assured
5.
Ration
card dated April 15, 2005, and translation dated June 21, 2006,
(Exhibit R-2) indicates:
[translation]
·
Paramjit
Singh 42 years old
·
Parminder
Kaur 37 years old
·
Lovedeep
Singh 14 years old
·
Amandeep
Singh 11 years old
IMPUGNED DECISION
[14]
After
considering all the elements of the file and the applicants’ testimonies, the
panel determined as follows:
The panel determines that as the
claimants have not provided credible or trustworthy evidence they are not
“Convention refugees” nor are they “persons in need of protection” for a risk
to life and a risk of cruel and unusual treatment or punishment or danger of
torture.
[15]
The
panel was concerned about the contradictions and inconsistencies between the
visa application and the claim for refugee protection. The panel stated as
follows:
The claimant’s principal fear is of the
Indian authorities who would seek him (them) out and detain them as a result of
the principal claimant’s initial run-in with the police in Jammu and Kashmir on
February 2, 2004. Yet the panel does not believe that the claimants have
provided credible or plausible evidence to support these allegations.
Chief amongst them is the issue
concerning the claimant’s motivation in coming to Canada. Both claimants left
India for Canada on their passports on July 31, 2005. Prior to that time, there
was a Canadian visitor’s visa application made by the claimant which is quite
extensive. In essence the documentation and allegations there contradict the
central elements of the principal claim. According to the application the
claimants are coming to Canada to participate in a “Birth ceremony” of claimant
Parminder Kaur’s sister’s child in Canada. The principal claimant Paramjit
Singh is described as both an agriculturalist and businessman –no reference to
being a truck driver. According to the documentation provided the claimant ran
his own business. There are bank statements to confirm this as well as a list
of transactions. When confronted on all of this, the principal claimant feigned
ignorance and indicated that he had hired an agent (whom he paid eight lakhs)
in order to get him out of India. Yet the panel has serious doubts. The initial
invitation letters in the visa file predates the actual decision the claimants
made in early July 2005 to leave India. Further the visa file contains the
personal income tax statements of Jasvir Garha the individual described as a
member of the female claimant’s family. The panel does not believe it credible
that an agent in such a short period of time would have been able to obtain
(predated) documents to justify a false visa application. Despite their fear of
the authorities the claimants would have left India on their own passports with
their visas. They would have come to Canada and not immediately claimed refugee
protection status. Rather they would have waited over three and a half months.
When confronted on this the principal claimant stated that his wife was
reluctant to claim refugee protection status because she was worried for the
children. Yet the panel does not believe that this makes much sense. If the
clear intention in paying an agent eight lakhs would be to come to Canada in
order to seek protection why not do so? The panel again does not believe that
these claimants are credible. Further the panel determines that their behaviour
throughout is not consistent with someone either fleeing persecution or serious
harm.
[16]
Lastly,
the panel attached no credibility to the documents submitted by the applicant, namely
Exhibit R-4 (Union letter) and the medical reports.
Analysis
Is the panel’s decision patently
unreasonable?
Standard of
review
[17]
In
Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003]
1 S.C.R. 226, paragraph 38, the Supreme Court of Canada
established that “[a]ssessments of credibility are quintessentially
questions of fact”. In an immigration context, the Federal Court of Appeal stated
in Aguebor
v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732
(F.C.A.) (QL), that the Refugee Protection Division is in the best position to assess
the credibility of an allegation and make the required determination.
Décary J.A. stated as follows at paragraph 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. In Giron, the Court merely observed that in the area of
plausibility, the unreasonableness of a decision may be more palpable, and so
more easily identifiable, since the account appears on the face of the record.
In our opinion, Giron in no way reduces the burden that rests on an
appellant, of showing that the inferences drawn by the Refugee Division could
not reasonably have been drawn. In this case, the appellant has not discharged
this burden.
[18]
Therefore,
the standard of review applicable to questions of credibility is patent
unreasonableness. This standard also applies when the documentary evidence is
deemed not to be credible (see Aslam v. Canada (Minister of Citizenship and Immigration),
2006 FC 189, [2006] F.C.J. No. 264 (F.C.) (QL), at paragraph 18, and Grewal
v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 129 (F.C.A.)
(QL)).
[19]
The
applicants submit that the Court should allow their applications because the
impugned decision does include errors that are patently unreasonable.
[20]
First,
the applicants argue that the panel relied solely on the visa file in
determining that the applicants’ story and documentary evidence were not
credible. They also argue that the panel was mistaken with respect to the
applicant’s actual employer. They note that the panel disregarded
Exhibit R‑4 without justification.
[21]
Furthermore,
the applicants claim that the panel should have granted them refugee protection
because they are baptized Sikhs and considered to be persons at risk. They also
take issue with the fact that the panel did not consider that the terrorist,
Hawara, mentioned that the applicant had helped him when he escaped from
prison. It was this incident that led them to leave India for good. The panel
allegedly committed a reviewable error, since it ignored the evidence that the
female applicant had been raped by the police.
[22]
The
respondent maintains that the panel’s decision is reasonable, noting that the
applicant does not challenge the following facts that support the decision:
(a) The
applicants allegedly travelled with their own passports, whereas they claim
they are being targeted by the Indian authorities.
(b) They
allegedly waited over three months after their arrival in Canada before applying
for refugee protection.
(c) The applicant
allegedly was evasive when he answered questions about his arrest on
February 2, 2004.
(d) He was not
charged with anything following his arrest in February 2004.
[23]
The
respondent argues that the panel could disregard the evidence submitted in
support of the claims, since the applicants were deemed not to be credible.
[24]
The
Court agrees with the respondent’s arguments. While it is true that the time taken
to claim refugee protection is not always determinative, this factor is one of
many that the panel may consider. In this case, the panel was not patently
unreasonable in considering and mentioning it in light of the extensive
evidence in the visa file.
[25]
So
why would they have waited three and a half months to apply for protection if
they feared for their lives? In addition, some of the documents in the visa
file were dated before the applicants decided to leave India. The panel simply
did not believe the applicants’ story to the effect that it was their agent who
purportedly fabricated these documents in order to obtain fake visas to enable
them to enter Canada and subsequently claim refugee protection.
[26]
The
intervention of this Court is therefore unnecessary.
[27]
I
agree with the parties that there is no question to be certified in this case.
JUDGMENT
THE COURT
ORDERS that
- The application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
Certified
true translation
Jason
Oettel
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