Docket: IMM-1904-24
Citation: 2025 FC 433
Vancouver, British Columbia, March 7, 2025
PRESENT: The Honourable Madam Justice Furlanetto
BETWEEN: |
BHUPINDER KAUR GILL AND KULVINDER SINGH GILL |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The Applicants seek judicial review of a December 29, 2023 decision [Decision] of the Refugee Appeal Division [RAD], confirming the refusal of their refugee claim by the Refugee Protection Division [RPD]. The RPD and the RAD concluded that the Applicants were not credible and had not established a well-founded fear of persecution or a future risk of harm so as to be Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] For the reasons that follow, the application is dismissed as the Applicants have not demonstrated that the RAD’s credibility analysis was unreasonable, nor have they shown that the RAD exhibited a reasonable apprehension of bias as alleged.
I. Background
[3] The Applicants, Bhupinder Kaur Gill [Principal Applicant] and Kulvinder Singh Gill [Associate Applicant], are a married couple who are citizens of India of the Sikh faith. They arrived in Canada in March 2018 and made refugee claims in 2019, alleging a fear of persecution, including arbitrary imprisonment, torture, and possibility of death at the hands of the Rastriya Swayamsevak Sangh [RSS], a Hindu nationalist organization, and the Bhartiya Janata Party [BJP] government, who they allege is allied with the RSS.
[4] The Applicants allege that the Associate Applicant was active in the local gurdwara (Sikh temple), speaking out for Sikh rights and as a result, became a target of the RSS. They claim that the Associate Applicant was detained by the police on multiple occasions and that the Applicants were threatened with death if the Associate Applicant did not stop demonstrating support for Sikh rights. They assert that the police implicated the Associate Applicant in a false crime related to a property dispute in 2015, that the Applicants were threatened at their home in April 2017 and questioned by members of an extremist Hindu organization, which they reported to the police who refused to act, and that since coming to Canada they have been informed by friends in India that members of the RSS and the police continue to look for the Associate Applicant.
[5] On December 21, 2020, the RPD dismissed the Applicants’ refugee claim on the basis of an Internal Flight Alternative in Mumbai. Upon review, the RAD remitted the decision back to the RPD for redetermination on the basis that the RPD did not adequately address evidence of potential exclusion of the Associate Applicant, and that the panel did not fully consider all evidence regarding the Applicants’ credibility.
[6] On October 5, 2023, after obtaining new evidence through testimony from the Applicants at further hearings, the RPD denied the claim, finding inter alia that the Applicants were not credible witnesses. The RPD referred to numerous examples where the Applicants were evasive or inconsistent in answering questions that went to central parts of their claim. The RPD considered the additional evidence relied on by the Applicants, including affidavits from their friend Daljit Singh, that alleged that the police continued to look for the Associate Applicant after he arrived in Canada, but found the evidence to be unreliable on multiple grounds.
[7] On December 29, 2023, the RAD dismissed the Applicants’ appeal of the RPD Decision, agreeing with the RPD’s findings on credibility and dismissing the allegation that the RPD decision was subject to bias. Upon conducting its own review of the evidence, the RAD identified various problems and inconsistencies with critical evidence that could not be overcome by the explanations given by the Applicants.
Issues and Standard of Review
Were the RAD’s credibility findings reasonable?
Was there a reasonable apprehension of bias?
[9] The standard of review of the first issue is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. A reasonable decision is one that is based on an “internally coherent and rational chain of analysis”
and is “justified in relation to the facts and law that constrain the decision maker”:
Vavilov at paras 85-86. Before a decision can be set aside as unreasonable, a reviewing court must be satisfied that the decision has serious shortcomings and that it does not exhibit the requisite degree of justification, intelligibility and transparency: Vavilov at paras 99-100.
[10] The second issue concerns procedural fairness, and as such the Court must determine whether the procedure was fair having regard to the circumstances. The ultimate question is whether the applicant knew the case they had to meet and had a full and fair chance to respond: Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54-55.
Analysis
A. Were the RAD’s credibility findings reasonable?
[11] It is trite law that deference is to be given to the RAD’s and RPD’s assessment of a refugee claimant’s credibility as credibility lies “within the heartland”
of the jurisdiction, expertise and knowledge of these tribunals: Warrich v Canada (Citizenship and Immigration), 2022 FC 76 [Warrich] at para 38; Hossain v Canada (Minister of Citizenship and Immigration), 2023 FC 1255 at para 55. It is only in the clearest of cases that a reviewing Court should overturn the RAD’s and RPD’s credibility findings: Singh v Canada (Minister of Citizenship and Immigration), 2024 FC 1259 at para 7.
[12] I do not find that such a clear case exists here.
[13] The Applicants assert that the RAD failed to meaningfully consider the explanations they provided for why their answers might have appeared evasive before the RPD, namely that: they were unsophisticated, fearful and not well educated; the uncertainty of waiting for the acceptance of their claim while at the same time fearing for their lives; the additional anxiety associated with the killing of the Sikh leader, Mr. Nijjar, in Canada on June 18, 2023; and the fact that the Associate Applicant had been “declared a proclaimed offender in India”
. However, I do not agree that the RAD’s reasons are lacking this consideration.
[14] In the Decision, the RAD acknowledges upfront the arguments highlighted by the Applicants. The reasons then go on to provide numerous examples of inconsistencies and issues with the Applicants’ evidence, including as it relates to testimony regarding who was targeting the Associate Applicant and why he was initially detained by police, the Principal Applicant’s failure to remember whether the Associate Applicant needed medical care after the 2017 incident despite remembering the date of the incident, and inconsistencies between the Associate Applicant’s testimony and Basis of Claim as related to his role and involvement with the gurdwara. In each case, the RAD reviews and considers the Applicant’s explanations for the evidentiary inconsistencies at length and explains why it does not find those explanations persuasive.
[15] The Applicants’ argument on these points amount to a request to have this Court conduct a de novo review and come to a different conclusion, which is not the role of the Court on judicial review: Vavilov at para 125.
[16] The Applicants argue that the RAD conducted a microscopic review of the evidence by critiquing the Associate Applicant’s evidence on where he spoke out against anti-Sikh injustices and what specific matters were addressed; however, I cannot agree. Where inconsistencies in the evidence are numerous and pertain to critical events concerning the Applicants’ claim, they can reasonably justify an adverse credibility finding: Warrich at para 35. As noted by the RAD “[t]he Associate [Applicant] alleges that he has been targeted by pro-Hindu hardliners because of his activism in support of Sikh rights, primarily through the gurdwara. Therefore, the Associate [Applicant’s] evidence on where he spoke out against anti-Sikh injustices and what specific matters he spoke out about that could lead to someone getting targeted, are core elements of his claim.”
[17] The Applicants take issue with the sufficiency of the reasons relating to the RAD’s finding that the Daljit Singh affidavits were unreliable. In the Decision, the RAD refers to the RPD decision and analysis on these affidavits and adopts the RPD’s reasons as its own. There was nothing erroneous in doing so, particularly in this instance where the RPD conducted an extensive analysis of these affidavits and Mr. Singh’s evidence. There is no reviewable error with this aspect of the Decision.
[18] The Applicants assert that there is an inherent unreasonableness associated with the Decision as the earlier RPD and RAD decisions did not conclude that the Applicants were not credible. However, the RPD was tasked with conducting a redetermination based on new evidence obtained through further hearings. By its nature, the redetermination was intended to redetermine the merits of the case. It was not to rely on the findings of the earlier decisions, which were found to be devoid of full consideration on the issue of credibility.
[19] The Applicants argue that the RAD should have been sensitive to the country condition evidence which was supportive of their claim. However, the Applicants have not pointed to any country condition evidence that the RAD failed to consider, nor have they explained how such evidence is supportive of their alleged personalized risk.
[20] The RAD reviewed the RPD’s reasons and supporting country condition evidence and came to the same conclusions as the RPD, finding there was no objective evidence suggesting that the Applicants would face a serious risk of persecution in India as Sikhs as they were not and would not be perceived as supporters of Khalistan. I find nothing unreasonable with the RAD’s analysis.
[21] Overall, while it is clear from the submissions made that the Applicants disagree and are unhappy with the Decision, disagreement does not constitute a reviewable error.
B. Was there a reasonable apprehension of bias?
[22] The test for determining the existence of a reasonable apprehension of bias as noted by the RAD is whether an informed person when viewing the matter realistically and practically, having thought the matter through, would conclude that the decision-maker would not decide the matter fairly: Committee for Justice and Liberty v National Energy Board, [1978] 1 S.C.R. 369 at p 394; Liadi v Canada (Minister of Citizenship and Immigration), 2022 FC 160 [Liadi] at para 22. There is a high burden in establishing a reasonable apprehension of bias as decision-makers are presumed to be impartial. The grounds must be substantial and supported by material evidence: Liadi at para 23.
[23] The RAD dismissed the allegation of bias because the Applicant had not identified any specific examples of bias from the RPD hearing record, nor had they provided any substantive argument to support the allegation. I see no error in this analysis. The allegations against the RAD are similarly deficient. I agree with the Respondent, the fact that the RAD disagreed with the Applicants’ explanations for the inconsistencies in their evidence does not amount to bias or a breach of natural justice. Similarly, an apprehension of bias does not exist simply because a decision-maker on redetermination makes different findings than those that were made in the earlier decision, particularly where the redetermination is based on new evidence arising from separate hearings that were held before the RPD.
[24] There has been no bias established nor breach of natural justice.
[25] For all these reasons, the application is dismissed.
[26] As an additional matter, I note that the Application for Leave and Judicial Review names the Minister of Immigration, Refugees and Citizenship as the Respondent. The proper Respondent is the Minister of Citizenship and Immigration (IRPA, s 4(1); Federal Courts Citizenship, Immigration and Refugee Protection Rules, r 5(2)). As such, I will also include in my order that the Respondent in the style of cause be amended to the Minister of Citizenship and Immigration.
[27] There was no question for certification proposed by the parties, and I agree none arises in this case.
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