Date: 20041028
Docket: IMM-10328-03
Citation: 2004 FC 1498
Ottawa, Ontario, the 28th day of October 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
GUDAWAR SINGH GILL
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division (the panel) of the Immigration and Refugee Board (IRB), dated December 4, 2003, that the applicant is not a Convention refugee or a "person in need of protection". Accordingly, the applicant's refugee claim was denied.
[2] The applicant is asking that the decision be set aside and that a rehearing before a differently constituted panel be ordered, that all removal orders be stayed during the hearing and that the Court order any other interlocutory or final measure that it deems necessary to reserve the rights of the parties.
ISSUES
(a) Did the panel err in law in making its decision based on an erroneous finding of fact, or otherwise breach the principles of natural justice?
(b) Does the panel have an obligation to ensure that all of the necessary witnesses are called to testify or is this rather the responsibility of the parties?
CONCLUSION
[3] For the reasons given below, I answer to both questions in the negative.
THE FACTS
[4] The applicant, Gudawar Singh Gill (Mr. Gill, or the applicant), is a citizen of India. He claims that he is targeted by Indian police because they believe that he is a collaborator with the Kashmiri militants. The persecution took place when he was arrested and detained on March 22, 1998, for seven days and when he was arrested a second time on March 15, 2002, for four days. Following these detentions, the applicant was allegedly imprisoned and cruelly tortured to the point that he lost consciousness. Each time that he was released from detention, he was allegedly brought to a doctor for hospitalization.
[5] The applicant claims that he left his country on July 8, 2002, and he arrived in Canada that same day after travelling through Germany. He gave notice of his intention to seek Convention refugee protection on July 9, 2002. Mr. Gill then met the immigration officer on August 22, 2002, with an interpreter present and an acknowledgement of Convention refugee claim form was filled out. On September 18, 2002, Mr. Gill prepared his Personal Information Form (PIF) at his home with the assistance of his counsel's interpreter and the PIF was then verified by his counsel.
[6] His hearing took place on November 7, 2003, and the negative decision was signed on December 4, 2003.
IMPUGNED DECISION
[7] The panel determined that the applicant answers lacked spontaneity and that once he was beyond the scope of the text of the PIF, he had a great deal of difficulty answering the questions. In the panel's opinion, this was evidence of a credibility problem.
[8] The panel was therefore troubled by the contradiction between the applicant's PIF and the immigration documents entitled "Immigration Officer Interview Notes"(immigration officer's notes). The immigration officer's notes state that during his interview with the immigration officer, the applicant did not refer to the abuse that he alleged to have suffered during each of his arrests. The panel dismissed the applicant's explanations that it was an error by the interpreter or the immigration officer, or rather that the applicant had misunderstood the question and that the translation was inadequate.
[9] In determining that the applicant would not be a person in need of protection if he were to return to India, the panel relied primarily on exhibit A-5: India Assessment, Country Information and Policy Unit, Human Rights, Treatment of Returned Failed Asylum Seekers. This document states that claiming refugee status abroad and the dismissal of the claim is not a crime upon returning to India.
THE PARTIES' SUBMISSIONS
The applicant
[10] The applicant claims that the panel erred in law in dismissing his claim based on his failure to mention the elements of torture during his first interview with the immigration officer.
[11] The applicant also claims that the panel could not brush aside all of the objective elements contained in the medical record of Dr. J.B. Kornacki (Dr. Kornacki). That record stated that Mr. Gill had several scars which could be consistent with signs of torture. The panel did not assign any probative value to this document because Dr. Kornacki's findings were based largely on the applicant's story. However, the applicant claims that the panel erred in rejecting the record without commenting on the doctor's description of the scars and his opinion about them. (See Badibanga v. Canada (Minister of Citizenship and Immigration), IMM-1827-99.)
[12] Further, the applicant argues that in making several obvious errors, the panel wrote a patently unreasonable decision. According to the applicant, the cumulative effect of the errors indicates a serious lack of attention which does not do justice to the applicant's story, justifying the court's intervention.
[13] According to the applicant, the errors, inter alia, are as follows:
(a) the panel wrote that exhibit P-5 was an affidavit of the sarpanch of the village, when it was the applicant's affidavit regarding the sale of his truck;
(b) the panel wrote that nothing had been said to the immigration officer during the interview in August 2002 regarding the torture, when the immigration officer did note that the applicant had scars on his forehead;
(c) the panel did not consider that a person could be detained by the Indian immigration authorities and that there was a risk that those detainees could be tortured;
(d) the panel considered that neither the interpreter nor the immigration officer had been called to confirm the applicant's story (i.e. to confirm his explanation that he had not understood the questions or that the questions had not been correctly translated);
(e) at page 4 of the decision, second paragraph, the panel confused the notification of claim with the PIF;
(f) the panel considered that the Refugee Protection Officer had been present at the hearing, when he had not been.
[14] Further, the applicant argues that in determining that the applicant had no credibility and that accordingly there was no serious ground for the application of subsection 97(1) of the Act, the panel erred in law. In the applicant's opinion, the facts must be analyzed under subsection 97(1) of the Act, despite the lack of credibility finding.
[15] In conclusion, the applicant states that the panel did not consider the principles regarding credibility stated in Sheikh v. Canada (Minister of Employment and Immigration), [2000] F.C.J. No. 568:
The discrepancies relied on by the Refugee Division must be real (Rajaratnam v. M.E.I., 135 N.R. 300 (F.C.A.). The Refugee Division must not display a zeal "to find instances of contradiction in the applicant's testimony... it should not be over-vigilant in its microscopic examination of the evidence" (Attakora v. M.E.I (1989), 99 N.R. 168 at paragraph 9). The alleged discrepancy or inconsistency must be rationally related to the applicant's credibility (Owusu-Ansah v. Minister of Employment and Immigration (1989), 98 N.R. 312 (F.C.A.). Explanations which are not obviously implausible must be taken into account (Owusu-Ansah, supra).
The respondent
[16] The respondent acknowledges that the panel made a few errors in its decision but is of the opinion that these errors are not palpable errors justifying an intervention. Furthermore, the respondent claims that Dr. Kornacki's record, observing that the applicant's scars could have been consistent with the applicant's allegations, does not confirm the alleged torture.
[17] The respondent also argues that the panel properly weighed the evidence regarding persons returning to India after claiming protection before it determined that the applicant was not a person in need of protection. He points out that the burden of proof is on the applicant. If the applicant had actually had translation problems during the interview with the immigration officer, he was obliged to call the officer to testify to that effect. It was not the panel's responsibility to assume the applicant's burden of proof because the burden of proof was on the applicant's shoulders. The respondent also points out that the applicant's counsel waived calling witnesses at the hearing.
ANALYSIS
The standard of review
[18] The panel's finding is based on the determination that the applicant lacked credibility. The standard of review in such a case is that of patent unreasonableness since these determinations are "at the heartland of the discretion of triers of fact":
This Court must not revisit the facts and weigh the evidence (Montreal (City) v. Canadian Union of Public Employees, Local 301, [1997] 1 S.C.R. 793 at 844).
The credibility findings made by the tribunal will not be set aside by this Court unless they are clearly made without regard to the evidence Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.). What this means is that the applicant must demonstrate, on the balance of probabilities, a palpable and overriding error which affected the assessment of the facts. The standard of review on such factual findings of an administrative tribunal are an extremely deferential one, City of Montreal, supra. Put another way, it must be shown the evidence, viewed reasonably, is incapable of supporting the tribunal's finding of fact (which is the nature of credibility findings)Toronto (City) Board of Education v. Ontario Secondary School Teachers' Federation, District 15 (Toronto), [1997] 1 S.C.R. 487.
Dhindsa v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2011 at paragraphs 41-43 (F.C.T.D.). See also Giron v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 481; Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732.
Did the panel err in making a negative finding regarding the applicant's credibility?
[19] The credibility and the probative value to assign to the evidence are matters for the panel. If the determinations made are reasonable in light of the evidence, there is no reason for the Court to intervene. However, the panel must not "be over-vigilant in its microscopic examination of the evidence" (See Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (F.C.A.).)
[20] In this case, the panel noted that the applicant's answers lacked spontaneity and that the applicant was bound by his PIF because he had difficulty answering the questions. That fact, added to the fact that Mr. Gill did not mention the torture during the initial interview and when he filled out the PIF, led the panel to find that Mr. Gill was not credible. I note that on two occasions (July 9, 2003 (notification) and September 18, 2003 (PIF), the applicant had the opportunity to inform the Canadian immigration authorities of the events during which he had allegedly been tortured. He claims that the questions were not clear or that the translation was inadequate. The undersigned considers these reasons to be unacceptable. When a person endures torture and that is the reason underlying the refugee claim, it is normal to expect that the events be reported at the first opportunity. The panel was certainly open to make a negative finding regarding that situation.
[21] The notification and the PIF are important documents in a claim for refugee status. A panel has the obligation to consider them seriously and to make a finding while giving the applicant the opportunity to explain, which was done in this case.
Certain other arguments by the applicant regarding the errors made by the panel
[22] While noting that the panel made a few errors, in my opinion these errors are not fatal. The most obvious error is the fact that the panel referred to exhibit P-5 as being an affidavit of the village sarpanch when it was rather the applicant's affidavit stating that he had sold his truck. However, the panel did not base its decision on this point. Furthermore, the panel was also entitled not to assign any probative value to Dr. Kornacki's report; this does not mean that the report was false. It is true that there were scars on the applicant's face and body which could have resulted from torture, but this does not indicate that the applicant was, in fact, tortured. It is also true that the immigration officer noted that there were scars on the applicant's face, but the burden to request an explanation was not on the immigration officer, but on the applicant.
[23] Finally, the panel stated that persons returning to India after claiming protection abroad are not subjected to torture. The applicant complains that this determination disregards the fact that an individual like him (a person who has already been persecuted by the Indian authorities) is at risk of being tortured, even if it is not the India's usual practice. But this argument by the applicant is based on a conclusion that the panel rejected.
[24] Despite the fact that there are errors (affidavit P-5) and confusion (between the notification and the PIF, as well as the presence of the Refugee Protection Officer), these errors do not as a whole affect the basis of the decision. The courts do not ask for perfection. It is permissible to err so long as that error does not bear on the very core of the decision. The undersigned notes that this decision may have required more thorough but this is not fatal.
Does the panel have the obligation to call the necessary witnesses?
[25] Since the applicant has the burden of establishing the merit of his claim before the panel, it is entirely up to him to do whatever is necessary to present all the evidence that he deems necessary. That includes calling four necessary witnesses such as the interpreter or the immigration officer. It is not the panel's responsibility to establish the applicant's evidence for him.
The applicants must submit the evidence which they consider necessary and essential to make out their claim. If the members of the Division do not wish to hear evidence on one or more points necessary to make out the claim it is desirable, even essential, for this to be noted in the record. Consequently, unless there is some exemption by the Division the applicants should make no presumption whatever regarding the evidence they must present.
See El Jarjouhi v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 466 (F.C.T.D.), paragraph 7.
CONCLUSION
[26] After reading the entire decision while keeping in mind the errors mentioned, I am able to determine that the findings were not patently unreasonable. There is no reason to intervene.
[27] Counsel were invited to propose questions for certification but they declined.
ORDER
THE COURT ORDERS THAT:
- This application for judicial review is dismissed and no question shall be certified.
"Simon Noël"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10328-03
STYLE OF CAUSE: GUDAWAR SINGH GILL
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 18, 2004
REASONS BY: The Honourable Mr. Justice Simon Noël
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
MARIE NICOLE MOREAU FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN
MONTRÉAL, QUEBEC FOR THE APPLICANT
MORRIS ROSENBERG
MONTRÉAL, QUEBEC FOR THE RESPONDENT