Date: 20080408
Docket: IMM-4108-07
Citation: 2008 FC 453
Toronto, Ontario, the 8th day of April 2008
Present:
the Honourable Madam Justice Tremblay-Lamer
BETWEEN:
HARBHAJAN SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This is an
application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the panel), made pursuant to
section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (the Act). In its decision of September 12, 2007 (the decision),
the panel concluded that in view of the lack of credibility of his account the
applicant did not have the status of a Convention refugee or a person in need
of protection.
II. Facts
[2]
The
applicant Harbhajan Singh was born in India
on November 10,
1958 and holds
the nationality of that country. He is married and has two children who all
live in India and he works as a trucker. He
alleged the following facts in support of his claim.
[3]
The
applicant is a member of the Shromani Akali Dal Amritsar Party (Mann), an
organization advocating the creation of a separate country for Sikhs.
[4]
In March
2000 he and several other militants went to visit a site where 35 Sikhs were killed
in Jammu and Kashmir. On that visit he met Jinder
Singh. The latter sought and obtained employment with the applicant, who is a
trucker, in March 2004.
[5]
On August
13, 2004, Jinder Singh was arrested while travelling between Jammu, Kashmir and Moga. The police found weapons in
the truck he was driving. The following day, the applicant was arrested and
charged with supporting militants operating in Jammu and Kashmir. He was detained and tortured
for several days. He was only released on payment of a bribe.
[6]
In
December 2004 the police searched the applicant’s residence. Jinder Singh was
able to flee from the authorities and the police suspected he was hiding with
the applicant. The latter was detained and tortured again and once again
released on payment of a bribe.
[7]
In June
2005 the applicant was driving a group of people to Amritsar in his truck. When he approached a
police checkpoint some of the passengers fled. These individuals and the
applicant were detained and tortured. The applicant was released on June 10,
2005.
[8]
Following
this occurrence, the applicant contacted an agent to make the necessary
arrangements to leave the country. He arrived in Montréal on August 16, 2006 and filed an application for
refugee status the same day, but this was denied on September 12, 2007.
[9]
The panel
noted that the applicant was unable to produce his Indian passport to confirm
the itinerary of his trip to Canada and explain why he did not
have his passport in his possession or why he only had photocopies of certain
pages. His testimony in this connection was confused and not very credible.
[10]
The panel
noted several contradictions in the applicant’s account. At his interview at
the point of entry he indicated he belonged to the Badal group of the Shromani
Akali Dal Amritsar Party. He later said he belonged to the Mann group of the
Shromani Akali Dal Amritsar Party. He further claimed to be a religious person,
not a militant. The applicant said he was detained for several hours in 1984
because he was preaching in the streets and shouting slogans. The panel
observed that these statements contradicted those contained in his Personal
Information Form (PIF), where he said he had been detained and tortured on at
least three occasions, and undermined the applicant’s credibility.
III.
Standard
of review
[11]
In Dunsmuir
v. New Brunswick, 2008 SCC 9, the Supreme Court of
Canada held that there are now only two standards in judicial review, that of
correctness and that of reasonableness. At paragraph 51, the Court explained:
[51] Having dealt with the nature of the standards of
review, we now turn our attention to the method for selecting the appropriate
standard in individual cases. As we will now demonstrate, questions of fact,
discretion and policy as well as questions where the legal issues cannot be
easily separated from the factual issues generally attract a standard of
reasonableness while many legal issues attract a standard of correctness.
Some legal issues, however, attract the more deferential standard of
reasonableness. [Emphasis added.]
[12]
Further
on, at paragraph 63, the Court pointed out that the process of judicial review
involves two steps:
First,
courts ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of deference to be accorded with regard to a
particular category of question. Second, where the first inquiry proves
unfruitful, courts must proceed to an analysis of the factors making it
possible to identify the proper standard of review. (At paragraph 62.)
[13]
The courts
have held that the standard of review that should be applied to a question of
credibility is that of patent unreasonableness. In view of the ruling in Dunsmuir,
the applicable standard of review is now that of reasonableness.
IV. Analysis
[14]
The
applicant alleged that the panel made an error on the question of credibility.
First, he maintained that the question of the passport had to do only with the
itinerary and had very little relevance. As to the contradiction between the
Badal and Mann groups of the Shiromani Akali Dal Party, he admitted that these
groups are separate. However, he explained this contradiction between the point
of entry notes and his PIF as being an error made by the immigration officer.
When he learned of the error, the applicant tried to correct it and submitted
documentary evidence establishing his membership in the Mann group. Finally, he
contended that the panel had ignored part of the documentary evidence that was
favourable to him.
[15]
First, as
to the passport and itinerary, the courts have held that a lack of evidence
corroborating important aspects of the claim may undermine an applicant’s
credibility (Toora v. Canada (Minister of Citizenship and Immigration), 2006 FC 828, [2006] F.C.J.
No. 1057 (QL), at para. 45).
The passport is an important document since it provides useful information on
an applicant’s itinerary in coming to Canada.
[16]
In the
case at bar, the applicant was not able to provide the panel with explanations
about his passport. When the panel asked him for the reasons why he only had
copies of two pages of his passport in his possession and why the other pages
were not reproduced, he could not explain it. Additionally, he provided very
confused explanations about the obtaining of his passport. The applicant
explained that he [made] his passport application in 2001 so he could go and
attend his niece’s wedding in Malaysia. He then testified that he
was unable to attend the wedding because he was in Canada at the time of the ceremony. When the
fact that four years had elapsed between the obtaining of the passport and his
arrival in Canada was put to him, the applicant
altered his testimony to say that in 2001 only the marriage negotiations were
in question.
[17]
Second, as
to the contradiction between the point of entry notes and the PIF, it is
established that the panel has complete jurisdiction to determine the
evidentiary weight to be given to the point of entry notes and may draw
negative conclusions from contradictions and inconsistencies in the evidence,
including differences between the statements made at the point of entry and any
subsequent testimony (Eustache v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1553, [2005] F.C.J. No. 1929 (QL), at paras. 6 to 12;
He v. Canada (Minister of Employment and Immigration),
[1994] F.C.J.
No. 1107 (QL), at para. 2; Rajaratnam, supra;
Ramirez v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J.
No. 803 (QL), at para. 5; Zaloshnja v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 272 (QL), at para. 6).
[18]
When
questioned about these inconsistencies, the applicant first explained that it
was the fault of the officer accompanying him who gave him a pill to relax and
then changed his testimony to indicate that it was an interpreter’s error. The
following passage from the testimony at the hearing is relevant:
Q. Now I raised one
issue with you, which was your associations, you didn’t make any mention of the
Punjab Youth Federation and you said you were part of the Badal group, not the
Mann group. But you were also asked “Have you ever been arrested or detained by
the police?” And you are alleged to have said that you were detained for a few
hours for preaching in the streets. It doesn’t appear that there are any
relevance to your story or to your allegations.
A. I said that my life
was in danger, I’m in danger from the police. (Inaudible) because I did not
have money. Last year also the police harassed me, and this year also, I’ve
mentioned it.
Q. Sir, that’s not … I
mean, that’s not what appears in the documents. You were also asked to provide
other information, detailed information, and you are alleged to have
said :
“In danger because of the Congress
government, because he was shouting slogans against the government, received
threats, one or twice since three months ago, threats of death, same thing last
year.”
. . . . .
Q.
That’s not
what here, sir. I didn’t read to you about detentions and beatings, I read to
you somebody who was shouting slogans against the government and received
threats. That’s not the same thing that you are saying in your story.
. . . . .
A. When I came, I
was so scared, and he had given me pills, and I did not know what I should say.
The interpreter said, “Tell as briefly as possible whatever you have to say.”
At that time, I didn’t tell everything. Whatever I could, I told the (inaudible).
I was saving my life. I didn’t come here to tell lies.
. . . . .
Q. So now you are
saying that the interpreter didn’t get it right, it wasn’t so much…
A. That’s what can
happen. I don’t know what I was saying, but what she made them write down was
all wrong. [Emphasis added.]
[19]
Nevertheless,
the other information in the point of entry notes was correct. It is hard to
accept the applicant’s contention that the immigration officer, and then the
interpreter, understood a completely different version of the facts from what
he alleged in his PIF. It was thus not unreasonable for the panel to draw
negative conclusions regarding the applicant’s credibility based on the contradictions
between his statements at the point of entry and his PIF (Eustache v.
Canada, 2005 FC 1553).
[20]
The
applicant further maintained that the panel erred by not considering the most
recent portfolio on the situation in India
in its decision. I note that the general 2006 documentary evidence describes
the general situation in that country. I cannot conclude from this that the
applicant suffered any detriment since he had to link this general documentary
evidence to his personal situation. This documentation cannot offset the
applicant’s lack of credibility resulting from the discrepancies affecting
central points of his claim.
[21]
In sum,
the applicant was unable to explain why he submitted two completely different
versions of the facts as the basis for his claim. The documents favourable to
the applicant were not sufficient to outweigh these deficiencies in the
evidence, which resulted from the applicant’s own statements.
[22]
As to the
allegation of danger as a baptized Sikh, the applicant never maintained that he
was a victim of an incident of any kind as the result of being a baptized Sikh.
The panel cannot be blamed for not ruling on a ground which he did not allege
and which did not significantly emerge from the evidence as a whole: Guajardo-Espinoza
v. Canada (Minister of Employment and Immigration) (F.C.A.), [1993] F.C.J.
No. 797 (QL). This situation is different from Singh v. Canada (Minister of
Citizenship and Immigration), 2007 FC 732, [2007] F.C.J. No. 977 (QL), where
the question concerned a conclusion as to a minimum basis for the applicant’s
claim and where the risk as a baptized Sikh had been specifically raised at the
first hearing.
[23]
Consequently,
there is no reason that would justify intervention by the Court and the
application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that the application for judicial
review be dismissed.
“Danièle Tremblay-Lamer”
Certified
true translation
Brian
McCordick, Translator
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