Docket: IMM-6445-13
Citation:
2014 FC 610
Ottawa, Ontario, June 24, 2014
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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JASVIR SINGH
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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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[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of the Immigration and Refugee Board’s Refugee Protection Division
(RPD) dated September 11, 2013.
[2]
The RPD rejected the applicant’s claim pursuant
to sections 96 and 97 of the Immigration and Refugee Protection Act SC
2001, c 27. This is an application for judicial review under section 72 of the
Act.
[3]
After having considered the arguments of the
parties and having examined the record, the Court found that the application
for judicial review must be dismissed for the following reasons.
I.
Facts
[4]
The applicant is an Indian national who lived in
Jammu and Kashmir (J&K). He is a Sikh religious musician. He is also a “baptized”
Sikh, in that he wears obvious religious symbols that identify him as such. In
January 2006, he was involved in the creation of an organization named Nishkam
Kirtan Sewa Council, a group that had religious and social purposes. A work
colleague, Gurmeet Singh, had a friend named Surinder Singh. Surinder Singh allegedly
was convicted for having ties with terrorists. He was then harassed by the police.
At the hearing, the applicant explained that the police accusations were false
and apparently originated with a cousin of Surinder Singh who apparently had
problems with the police. Regardless, in his account the applicant stated that
following Surinder Singh’s conviction, he and Gurmeet Singh refused to associate
with Surinder Singh.
[5]
On June 5, 2008, the applicant was arrested with
Gurmeet Singh and another temple colleague, Gurcharan Singh. We do not know why
or under what circumstances he was arrested other than what the applicant indicated
in his personal information form (PIF) that it was during a program “which pays tribute to the Sikh martyrs of June 1984”.
Tortured and questioned about his ties with terrorists, the applicant denied
everything. On June 8, 2008, he was released following after prominent people
from his village intervened and paid a bribe, of an unknown amount, with the
order to report to the police any information about Surinder Singh or the
terrorists.
[6]
On March 18, 2009, the applicant allegedly was
arrested again with Gurmeet Singh and Gurcharan Singh while they were in Punjab.
The Punjab police apparently questioned the applicant, who was then transferred
to the J&K police. The J&K police allegedly tortured him again and
questioned him about Surinder Singh. He was forced to [Translation] “sign blank papers”.
He was released on March 22, 2009.
[7]
The applicant apparently consulted a lawyer to
stop the police harassment but the lawyer [Translation] “asked
for documents and witnesses before he could act”. After learning this, the police apparently
went to his home to arrest him a
third time. He escaped and decided to leave the region. With Gurmeet Singh and Gurcharan Singh, he took refuge in Delhi with Gurmeet
Singh’s family. He then left India with a work visa and arrived in Canada on
July 25, 2009, on a Delhi-London-Edmonton flight. Then he headed east, stopping
in Toronto where he spent two months, and settled in Montréal in September
2009. On September 22, 2009, he made a claim for refugee protection. Clearly, no
claim was made in Edmonton, his initial destination for unknown reasons, or
Toronto where he had stayed for two months.
[8]
At the hearing on August 20, 2013, the member
asked why the Indian authorities had not confiscated his passport issued in 2007;
the applicant was unable to explain. When she asked whether the authorities
were still looking for him, he stated that in 2011 his father had been
arrested, tortured and questioned about him. His father was released but after
he returned home he died on May 8, 2011. The member questioned him about this
and he stated that the police had visited his family every two to three months
since 2009, and they always told them that he was in Canada. He had not
mentioned this in his original PIF but had added it in an amendment dated May
14, 2013, four years after the original version.
[9]
The applicant explained his delay in claiming
refugee protection by stating that he thought that if he waited a few months,
the situation would improve and he could return, but after some time he
received advice that he should make a claim for refugee protection.
II.
Decision
[10]
The RPD did not believe the applicant’s account.
He was unable to provide a coherent explanation for the Indian police’s
interest in him, since he stated that he did not associate with Surinder Singh and
his organization was completely legal. The reason for the Indian authorities’
ongoing interest in him remains a mystery. He claimed that he did not know why
he was under suspicion. He was unable to explain why he was released twice
without charges, except by suggesting that perhaps the authorities intended to
follow him and establish his hypothetical terrorist links. He was unable to
explain why the police continued to be interested in him, four years later. The
RPD member noted that at the hearing, he described an arrest and mistreatment
of his father and had stated that the police visited his family every two to
three months, facts that cannot be found in his PIF despite their importance to
his claim.
[11]
The documentary evidence filed demonstrated to the
RPD that the amount of repression by authorities had greatly declined since 2000,
but that at times the government has intervened to fight terrorism, using
special measures, among other things. Indeed, references to documentation dating
to 2007 are no longer contemporaneous enough to be given weight. If the
applicant had truly been under suspicion, he would have not been released twice
nor allowed to leave the country easily. The documentary evidence suggests
rather that closer surveillance with limited movement would be implemented when
there are serious suspicions. Moreover, he could have produced official documents
to support his account according to the member. The delay in filing a claim for
refugee protection undermined his testimony that he had endured two
traumatizing detentions and felt threatened by a third one.
[12]
The member examined an affidavit from the
Sarpanch of the applicant’s village, a letter from the chairman of the temple where
he worked, a medical certificate attesting that he received care in June 2008 and
March 2009, and a letter from the lawyer the applicant had consulted, and gave
no weight to these documents since the applicant’s account completely lacked credibility.
III.
Analysis
[13]
I agree with the respondent that a panel is not
obliged to accept documentary evidence that is intended to support facts that
are deemed not credible (Tofan v Canada (Minister of Citizenship and Immigration),
2001 FCT 1011; Ahmad v Canada (Minister of Citizenship and Immigration), 2003 FCT
471).
[14]
Counsel for the applicant argued at the hearing before
this Court that the RPD had severed his analysis in order to reject the documentary
evidence submitted in support of the applicant. If that were the case,
intervention under this judicial review would probably be justified. A
decision-maker cannot disregard the evidence.
[15]
However, that is not the case here. Counsel
focused on paragraphs 101 to 106 of the impugned decision. In my opinion,
these paragraphs do not indicate that the evidence presented by the applicant
was disregarded. The RPD did not reject the evidence without considering it. Rather,
having found that the applicant’s account was not credible, the RPD could not
assign any weight to evidence that was intended to be corroborative but, in
fact, only repeated the story. Corroborative evidence is independent evidence
that supports the evidence in chief, not a repetition by hearsay of the account
given. Paragraph 101 seems to summarize the reasoning of the RPD:
[101] One last
point: as the panel does not believe the claimant’s story, it does not grant
any weight to the affidavit written by Raj Kumar, the alleged sarpanch of the
village of Kalyana in the Jammu district.[1]
This document refers to the problems that the claimant allegedly experienced
with the police and that the panel did not believe.
[16]
In other words, the documentary evidence, which
is nothing other than the version that was not believed told by people who do
not have knowledge of the facts, could not save the direct evidence that was
not believed. Hearsay evidence is only admissible and useful if it is reliable.
It is not that the evidence was disregarded but that it was deemed to have
little weight given the problems with the direct and primary evidence. As a
result, the focus should be on the applicant’s account.
[17]
The issue is whether the RPD’s finding was
reasonable.
[18]
I am of the opinion that the RPD’s credibility finding
was completely reasonable. The contradictions and implausiblities undermined
the testimony, and the applicant, who had the burden of proof, had no acceptable
explanation. The role of the reviewing judge is not to reassess the facts, but
rather to ensure that the decision made was reasonable in light of the evidence
in the record. Thus, this decision must have the distinction of being within
the realm of reasonableness pursuant to Dunsmuir v Nouveau-Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190:
[47] … In judicial review, reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[19]
In my opinion, the RPD’s findings on the
applicant’s credibility and his account fully justify their conclusion. His
testimony that he had been released twice was implausible. The omissions in the
PIF regarding key points raised at the hearing were not explained satisfactorily.
The circumstances of the applicant departure from India in no way indicated
that he was sought by the authorities. His two-month delay before making a
claim for refugee status after a journey from east to west from London to Edmonton,
to then return east, to Montréal after passing through Toronto, undermined his
claim of subjective fear and was not explained satisfactorily.
[20]
Moreover, the applicant never explained why the
authorities would have been interested in him as he claimed. It seems
implausible that the authorities of a country with 1.2 billion inhabitants
would have such an interest five years later if the applicant’s account is considered
in its entirety. Various elements contain contradictions and omissions, and the
entire account is implausible without a credible reason for the interest in him.
[21]
The applicant’s assertion that he was involved
in a solely philanthropic organization cannot explain police interest that
would include visiting his family four times per year for five years. Either the
applicant is not who he says he is or else the claims of frequent visits to his
family in India aim to justify a prospective fear without providing a basis. If
the applicant does not provide a complete and true account, he must live with
the consequences. If the regular visits were intended to reveal the risk he
faced, the decision-maker still had to know why the authorities would have such
an interest in someone who portrays himself as an ordinary guy.
[22]
Counsel for the applicant tried to argue that
the mere fact that the applicant is a “baptized” Sikh would be enough to find
that he should benefit from sections 96 and 97 of the Act. With all due respect,
the Court cannot share this opinion. There would have to be extremely specific
circumstances, which would have to be proven, to accept such an argument.
Indeed, that claim would mean that no baptized Sikh could return to India. Even
if some may believe that there is almost systematic harassment, and it has not
been proven in this case, this would still be far from being persecution.
[23]
The panel was not obliged to mention every document
to enable the Court to assess the entire record. The applicant contended that the
RPD’s reasons were lacking. Adequacy of is not a stand-alone basis for quashing
a decision (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708) [Newfoundland
Nurses]. Reviewing judges should review the entire record in assessing the
reasonableness of the result. The test is described at the end of paragraph 16 of
Newfoundland Nurses:
In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria
are met.
[24]
The RPD’s decision was very detailed and does
not leave any doubt about the findings made and the reasons for such findings.
It cannot be successfully attacked on this basis.
[25]
Consequently, the application for judicial
review is dismissed. The parties did not submit a serious question of general
importance and no question for certification arises.
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