Docket: IMM-6832-13
Citation:
2014 FC 740
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, July 24, 2014
Present: The Honourable Madam Justice Bédard
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BETWEEN:
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PIARA SINGH GILL and
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GURDIAL KAUR GILL
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicants seek the judicial review of a decision
made on September 30, 2013, by the Refugee Protection Division of the Immigration
and Refugee Board of Canada (the RPD) in which it rejected their refugee claim.
For the reasons that follow, the application is dismissed.
I.
Background
[2]
The applicants, who are citizens of India, allege that they were targeted by the police because of problems that their son had
allegedly had with the police owing to the relationship that he had with his
brother-in-law, a member of a Sikh group.
[3]
The applicants’ claim is based on the following main
elements. In 2008, the applicants’ son was arrested by the police. He was
released the next day with the obligation to present himself at the police station
every month. The applicants’ son fulfilled this requirement until November 1,
2009, when he disappeared while going to the police station. The police officers
stated that the applicants’ son never reached the station, but the applicants did
not believe this theory and suspected the police officers of being responsible
for his disappearance.
[4]
The applicants allege that on November 2,
2009, they consulted a lawyer to help them find their son. They argued that the
lawyer advised them to file a complaint against the police. The next
morning—and before taking any action with respect to a possible complaint
against the police—three police officers came to their house and asked the principal
applicant if he had consulted a lawyer the night before to file a complaint
against the police. The applicants submitted that they were arrested, driven to
the police station, detained and beaten by the police officers. The principal
applicant stated that he was interrogated then tortured before being released
the next day. He argued that he received medical treatment for the injuries that
the police officers inflicted on him.
[5]
The applicants then made the decision to come to
Canada since their daughter lives here. However, when they were waiting for
their Canadian visas, the police officers again came to their residence on December 15,
2009. The applicants argued that the police officers demanded that they find
and point out their son and his brother-in-law before February 15, 2010, failing
which they would be killed.
[6]
The applicants received their Canadian visas on January 6,
2010, and they left their country on February 4, 2010. They filed their
refugee claim on February 8, 2010.
II.
The RPD decision
[7]
The RPD found that the applicants’ story was not
credible. Its conclusion is based primarily on the following elements:
•
The RPD found that the applicants’ testimony was
hesitant and sometimes inconsistent. Indicating that it considered the age of
the applicants, who are 71 and 73 years old, the RPD found that the age of the applicants
did not explain the problems of credibility and implausibility that arose
during their testimony.
•
The RPD gave no probative value to the medical certificate
attesting to the injuries sustained by the principal applicant on November 3,
2009, because it found that there were contradictions between the certificate and
the principal applicant’s testimony: the certificate described external and internal
injuries, while the principal applicant stated that he only suffered numerous
bruises.
•
The RPD did not believe that the son disappeared.
First, it did not give any probative value to the letter from the lawyer that the
applicants allegedly consulted to try to find their son. The RPD pointed out
that the content of the letter was inconsistent with the reasons for which the
applicants stated that they consulted the lawyer. In the letter, the lawyer
indicated that it would be difficult to obtain reparation before the Court
since no evidence existed. The lawyer continued by stating that the applicants should
collect some statements written by villagers to attest to the innocence of
their son. The RPD found that the guilt or innocence of the applicants’ son was
not relevant to the purpose of finding him and that the lawyer’s advice was not
logical with respect to why they consulted him. The RPD also considered the fact
that the applicants had not taken any steps to find their son since their arrival
in Canada and found that these elements raised doubts regarding his disappearance.
The RPD was also not satisfied with the applicants’ explanation that they had
not taken any steps because they had too much [translation]
“tension”, or that their daughter, who still lives in India, could have helped them.
•
The RPD reserved the same treatment for the affidavit
of the Sarpanch from the applicants’ village because the statements contained
in the affidavit were not consistent with applicants’ testimony. In his
affidavit, the Sarpanch repeated the applicants’ allegations, but he also indicated
that since the applicants left, the police officers were investigating them from
various sources. Furthermore, in his testimony, the principal applicant stated
that he was informed that the police officers made rounds in front of their home,
but that they were not questioning anyone since the house is inhabited. The RPD
was not satisfied with the explanation that the principal applicant gave when
he was confronted with the contradiction; he stated that he did not know
whether the police officers were still investigating. The RPD also considered
it implausible that the police officers, if they were still looking for the
applicants, were not able to find the applicants’ daughter who lives close to
their village and does not live in hiding.
[8]
Therefore, the RPD found that the applicants did
not demonstrate that the police officers could have interest in them.
III.
Issue
[9]
The only issue raised in this request is to determine
whether the RPD erred in its assessment of the applicants’ credibility.
IV.
Standard of review
[10]
It is well-established that the standard of
review that applies to the assessment of the applicants’ credibility is that of
reasonableness (Aguebor v Canada (Minister of Citizenship and Immigration),
[1993] FCJ No 732 (FCA) at para 4, 160 NR 315; Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 (Dunsmuir); Vargas v
Canada (Minister of Citizenship and Immigration), 2014 FC 484 at para 9).
V.
Analysis
[11]
The applicants alleged that the RPD assessed the
evidence submitted in an unreasonable manner and that they neglected to consider
their particular circumstances.
[12]
First, the applicants alleged that the RPD did
not consider their age and their medical condition, circumstances that could explain
the hesitation and inconsistency during their testimony. With respect, nothing
in the evidence allows one to conclude that although they are 71 and 73 years
old, the applicants have memory problems or are unable to testify consistently.
[13]
Second, the applicants alleged that the RPD did
not mention or weigh the medical certificate prepared by the attending
physician who has been following them for three years. I acknowledge that the
RPD did not address this certificate in its decision. Furthermore, I consider
that this omission is not of such a nature as to invalidate the decision since the
medical certificate, which is extremely terse, does not contain any element that
would help conclude that the applicants suffered from a medical condition that
could influence their memory, their ability to testify, or again, their ability
to take steps to find their son. The certificate states only that the doctor
has been following the applicants for three years and that they suffered from
anxiety, depression and high blood pressure because of family stress. The doctor
added that he had been treating the applicants for three years with psychotherapy
and medication. The doctor did not make any statement on the impact that the medical
condition of applicants could have on their ability to function, remember
events or testify before a court.
[14]
Third, the applicants alleged that the RPD did
not give any probative value to the medical certificate attesting to the
injuries suffered by the principal applicant in November 2009. The applicants argued
that the RPD conclusion is based on speculation and its own concept of what may
constitute internal injuries. In this regard, I share the applicants’ opinion. I
do not necessarily see any contradiction between the applicant, who has no medical
knowledge, saying that he had bruises all over his body, and a doctor attesting
that the applicant had internal and external injuries. I consider that the RPD’s
conclusion was speculative and that it was based, not on the evidence, but rather
on his own perception of what constitutes an internal injury. Therefore, I
consider that the RPD drew an unreasonable conclusion as to the probative value
to give to the medical certificate. However, this conclusion is not sufficient
to invalidate the other conclusions of the RPD since the medical certificate only
corroborates the fact that the principal applicant was treated for injuries on
November 4, 2009. It sheds no light on the circumstances in which the
applicant had suffered his injuries.
[15]
Fourth, the applicants allege that the RPD did
not give probative value to the lawyer’s letter. They argued that the letter
corroborates the fact that they consulted this lawyer regarding the disappearance
of their son and that the RPD could not blame them for how the lawyer wrote his
letter. With respect, the applicants chose to submit the lawyer’s letter in
support of their allegations and, in light of the confusion resulting from the
content of this letter, it was not unreasonable for the RPD to not give it any probative
value. If the lawyer’s letter contains erroneous information with respect to
the discussions they had with him, it was up to the applicants to correct these
errors before submitting the letter in support of their refugee claim. In this
case, it was not unreasonable for the RPD to consider that the recommendation made
by the lawyer to help the applicants prove the innocence of their son was
absurd when one considers that they claim that they consulted with the lawyer
so that they could help to find their son who disappeared.
[16]
It was no more unreasonable for the RPD to retain
the fact that the applicants did not take any steps since their arrival in Canada to try to find their son and to reject the explanation given by the applicants to
justify their lack of action, that they were experiencing stress. This explanation,
in the absence of any medical evidence, is insufficient to explain their lack
of action for three years, although they could not ask help from their daughter,
who is still living in India, or from the lawyer that they consulted before
they left.
[17]
Finally, the applicants also alleged that the
RPD disregarded the Sarpanch’s affidavit and called into question their son’s disappearance.
I do not share this opinion. I consider that it was not unreasonable for the
RPD to conclude there was a contradiction between the Sarpanch’s statement and
the principal applicant’s testimony. The Sarpanch stated that the police
officers continued to investigate the applicants from various sources. The
principal applicant stated that he was informed that the police officers made
the rounds in front of their home, but without questioning anyone, then stated
that, finally, he did not know whether les police officers continued to show interest
in them. The Sarpanch’s version and that of the applicant are significantly different.
I also consider that it was reasonable for the RPD to conclude that it was implausible
that the police officers, if they were actively searching for the applicants, had
not found the applicants’ daughter, who lives a few kilometres from their home.
[18]
Therefore, I consider that, on the whole, the
RPD analyzed the evidence in a reasonable manner and that its decision falls
within “a range of possible, acceptable outcomes which
are defensible in respect of the facts and the law” (Dunsmuir at
para 47).
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