Docket: IMM-7143-14
Citation:
2015 FC 630
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 13, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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KARNAIL SINGH
MULTANI
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) for
judicial review of a decision of the Refugee Protection Division (RPD) dated
September 17, 2014, rejecting the applicant’s claim for refugee protection.
II.
Facts
[2]
The applicant is an Indian citizen of Sikh faith
who is 47 years old.
[3]
When he retired from the Indian army on October 1,
2004, the applicant received a lump sum of 10 Lakh rupees (100,000 rupees).
[4]
On October 3, 2004, a man named Joginder Singh (Joginder)
convinced the applicant to invest that money with him, promising him that the
amount would double in only three years.
[5]
In October 2007, the applicant asked Joginder to
return his money. However, Joginder refused, stating that the amount invested
by the applicant would double again in 2010.
[6]
At that point, the applicant informed the police
of Joginder’s refusal to return his money and after some checking, the police
informed the applicant that the financial company with which he believed to
have dealt did not exist and that he had likely been the victim of fraud.
[7]
That loss purportedly ruined the applicant.
[8]
On October 15, 2007, the applicant was kidnapped
and beaten by two men, who threatened to kill him if he sought police
protection or if their leader, Joginder, was arrested by police.
[9]
Nevertheless, the applicant notified the
authorities and reported the attack. However, the police refused to take action
because the applicant did not know the identity of his attackers.
[10]
On or about October 30, 2007, the applicant was
attacked again by three men and one of them tried to strangle him with a scarf.
The three men then informed the applicant that they knew that he had contacted
the police about Joginder and threatened to kill him if he attempted to pursue
the matter either through the police or through the courts.
[11]
In January 2011, while in Amritsar, the
applicant happened to come across Joginder and asked him to return his money or
he would call the police. One of the men who was with Joginder took out a
firearm and threatened to kill the applicant and Joginder and his companions ran
away.
[12]
Two weeks later, two men showed up at the
applicant’s house. They informed his spouse, who was alone at the time, that
they would kill the applicant once they found him.
[13]
The applicant then retained the services of a smuggler,
selling his wife’s jewellery, in order to leave India for Canada on February 16,
2011.
III.
Impugned decision
[14]
Following a hearing on September 11, 2014, the
RPD found that the applicant is not a Convention refugee or a person in need of
protection under sections 96 and 97 of the IRPA.
[15]
The RPD based its decision on the applicant’s
lack of credibility, lack of fear by reason of any of the five grounds set out
in section 96 of the IRPA, and lack of proof that the applicant would face a
risk in India, as set out in section 97 of the IRPA.
IV.
Statutory provisions
[16]
The statutory provisions of the IRPA relevant to
refugee status determination are reproduced below:
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Convention refugee
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Définition de « réfugié »
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1)
A person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
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97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
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(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
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(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
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(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
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(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité
du pays de fournir des soins médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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Exclusion – Refugee Convention
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Exclusion par application de la Convention sur les réfugiés
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98. A
person referred to in section E or F of Article 1 of the Refugee Convention
is not a Convention refugee or a person in need of protection.
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98. La personne visée aux sections E
ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la
qualité de réfugié ni de personne à protéger.
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V.
Issue
[17]
Is the RPD’s decision reasonable?
VI.
Analysis
[18]
It is established that credibility findings,
described as the “heartland of the [RPD]’s jurisdiction”,
are findings of fact that are reviewable on a reasonableness standard (Zhou v Canada
(Minister of Citizenship and Immigration), 2013 FC 619 at para 26; Canada (Citizenship
and Immigration) v Khosa, [2009] 1 S.C.R. 339 at para 46).
[19]
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”
(Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 at para 47).
[20]
Therefore, it is the RPD’s role to assess the
evidence adduced and to draw the necessary inferences from it (Cienfuegos v
Canada (Minister of Citizenship and Immigration), [2009] FCJ No
1591 at para 29). Justice Michel Beaudry stated the following in Gutierrez v Canada
(Minister of Citizenship and Immigration), [2009] FCJ No 617 at para 14:
[14] The panel is in the best position to
assess the explanations provided by the applicant with respect to the perceived
contradictions and implausibilities. It is not up to the Court to substitute
its judgment for the findings of fact drawn by the panel concerning the
applicant’s credibility (Singh v. Canada (Minister of Citizenship and
Immigration), 2006 FC 181, 146 A.C.W.S. (3d) 325 at paragraph 36; Mavi
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1
(F.C.T.D.) (QL)).
[21]
In its reasons, the RPD identified a number of
inconsistencies in the applicant’s oral and written testimony with respect to determinative
aspects of his refugee claim. Those findings led the RPD to conclude that the
applicant’s narrative is a fabrication.
[22]
In support of its decision, the RPD relied on
the following regarding the applicant’s lack of credibility:
(a)
The RPD drew an adverse inference from the
contradictions in the evidence regarding the applicant’s banking transactions. The applicant stated in his Personal Information Form (PIF) that
he received a lump sum amount of 10 Lakh rupees on October 1, 2004. However,
the bank statements show that between September 2 and 30, 2004, the applicant received
four amounts totalling 1,035,066 rupees.
(b)
The dates surrounding the meeting and the
investment with Joginder are not consistent. The
applicant alleges that he met Joginder on October 3, 2004, and that it was at
that time that he convinced him to invest his money with him. However, the
relevant bank statement indicates that 10 Lakh rupees were withdrawn on
October 2, 2004, prior to the applicant having met Joginder.
(c)
There are inconsistencies in the applicant’s
financial situation. The applicant claims that his
investment with Joginder ruined him and that he is financially impoverished. However,
the applicant’s bank statements demonstrate that he receives a monthly pension.
Furthermore, the applicant testified that he has been self-employed since
October 2004 as a farmer on his own land (until his departure for Canada), which
he makes a profit from by selling rice and wheat to support his family. In
addition, the applicant lives in a house that he inherited from his father.
Finally, the evidence demonstrates that the applicant and his wife had the
financial means to travel to Thailand in 2005-2006.
(d)
The applicant provided contradictory
statements regarding debts incurred in India. The
applicant claims that his life is also in danger from his creditors. The
applicant testified that he had to borrow 20 Lakh rupees in order to provide a
dowry for his daughter and because he was unable to pay back all of his debt,
his creditors filed a complaint with the police and were apparently looking for
him. However, in his PIF, the applicant states that his only daughter is unmarried.
(e)
The applicant did not demonstrate that he
would face a risk if he had to return to India. The
RPD found that even if it accepted the applicant’s testimony that he invested a
sum of money with Joginder, the evidence shows that it is unlikely that Joginder
is looking for the applicant or wishes to kill him.
[23]
It was open and reasonable for the RPD to weigh
the testimony provided by the applicant and to find that he lacked credibility
with respect to the evidence submitted, because of the multiple contradictions identified
(Singh v Canada (Minister of Citizenship and Immigration), [2007] FCJ No
97 at para 28).
[24]
It was also open to the RPD to consider the lack
of evidence that could corroborate the essential elements of the applicant’s
claim, namely regarding his alleged prospective fear and persecution.
[25]
The Court finds that the RPD’s findings are
reasonable and rooted in the evidence in the record and that the intervention of
the Court is unwarranted.
VII.
Conclusion
[26]
In light of the foregoing, this application for
judicial review is dismissed.
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