Date: 20050906
Docket: IMM-940-05
Citation: 2005 FC 1207
Ottawa, Ontario, the 6th day of September 2005
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
JATINDER SINGH
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (Act) against a decision by the Refugee Protection Division of the Immigration and Refugee Board (panel), dated January 17, 2005. In that decision, the panel determined that the applicant was not a refugee or a person in need of protection as defined under sections 96 and 97 of the Act. The applicant is asking that the panel's decision be set aside and that the matter be referred for redetermination before a differently constituted panel.
ISSUE
[2] The issues are the following:
1. Did the panel err in amending its decision outside the prescribed time limit?
2. Did the panel rely on erroneous facts or disregard certain evidence in deciding that the applicant lacked credibility?
CONCLUSION
[3] For the reasons set out below, the answer to both of these questions is negative. Since there is no reason justifying this Court's intervention, this application for judicial review is dismissed.
THE FACTS
[4] The applicant, Jatinder Singh (Mr. Singh, or the applicant), is a citizen of India, from the region of Kashmir. He says that he fears persecution by the Punjabi police because they believe that Mr. Singh is sympathetic to Kashmir militants.
[5] In 1983, when Mr. Singh was only six years old, his brother Sukhwinder Singh (Sukhwinder) was allegedly arrested and detained by the police because of his involvement in a popular movement of Sikh students. Sukhwinder was then tortured by the police. In January 1984, Sukhwinder disappeared and his family has not heard from him since then. The parents of Sukhwinder and Mr. Singh took certain steps to find Sukhwinder - they spoke to friends and other family members. Their efforts met with little success, however.
[6] Four days after Sukhwinder's disappearance, the police arrested the entire family - Mr. Singh, his sister and his parents. The police told them that Sukhwinder had been implicated in a theft and that he was working with Kashmir militants. After a week in detention, the Singh family was released.
[7] From time to time, the police visited the Singh family's home. Then the police officers brought Mr. Singh's father to the police station to talk to him. Mr. Singh says that he himself was on some occasions bound to report to the police station. For several years, the family paid bribes to the police.
[8] In 2000, Mr. Singh became a member of a political party, Lokh Bhali. During the parliamentary elections, he was threatened by members of the other parties. On December 27, 2003, the police came to Mr. Singh's home and proceeded to arrest him based on the fact that he was suspected of supporting Kashmir and Punjab militants. Mr. Singh was accused of having helped two Kashmiri men get an apartment (through his employment as a real estate agent). The police believed that these men were militants. Mr. Singh was detained for two nights by the police and was then transferred to another police station. He was not released until he had paid a bribe. The applicant claims that he had to be hospitalized following this incident.
[9] On February 6, 2004, the police again brought Mr. Singh to the police station so that he could help them identify some militants. Mr. Singh was thereby forced to sign a blank paper and the police told him he would have to work as an informant, or he would be killed. He was once again released only after paying a bribe.
[10] Following these incidents, Mr. Singh decided to go to New Delhi in order to flee from the police. On March 6, 2004, the police arrested the other brother and the applicant's father to find out where the applicant was hiding. On March 19, 2004, with the help of a smuggler, Mr. Singh left India. He arrived in Canada on March 22, 2004, and claimed refugee status on June 27, 2004.
THE IMPUGNED DECISION
[11] The panel determined, based on the contradictions, omissions and evasive answers given by the applicant during his hearing, that Mr. Singh was not a refugee or a person in need of protection. According to the panel, he simply was not credible.
[12] The panel did not believe that the applicant had actually been targeted by the Punjabi police. In the panel's opinion, if the applicant had really been wanted by police authorities, the applicant would have been summoned to appear before the Indian Court, something which never happened. Further, his story at the hearing, with respect to his arrests in December 2003 and February 2004, contradicted what he had stated in his personal information form (PIF). In his PIF, Mr. Singh said that the police had searched his home before proceeding to arrest him. However, at the hearing, a considerable amount of time went by before he reiterated that fact. As for the arrest in February 2004, the applicant did not refer to it in his PIF and the evidence at the hearing was not probative.
[13] The panel had difficulty believing that Sukhwinder actually disappeared in 1984. The applicant's answers were very vague and he did not file evidence to establish that this story was true. The panel was not satisfied with the applicant's explanation to the effect that his parents did not make more effort to find Sukhwinder because of the fact that they were not very educated. Later, the panel noted that the applicant's parents appeared to be rather educated in that they were able to obtain a copy of a "First Information Report" (the FIR) which had been issued against the applicant. (On that point, it must be noted that the panel determined that the FIR was not authentic since it did not have an issue date and because it lacked the required seals.)
[14] The applicant did not provide evidence regarding his alleged employment as a real estate agent. The panel noted that Mr. Singh's problems really began after he helped the two young Kashmiri men find an apartment. The applicant was not able, however, to give more details about those men or about his employment, despite the fact that his claim was based on these two factors.
[15] The panel found that the applicant's story - that he had been released by the police after he paid a bribe to the police - lacked credibility. According to the panel, if the applicant had actually been targeted because of his connections with the Kashmiri militants, a bribe would not have been enough to secure his release. The applicant did not indicate on his PIF that he had been obliged to consult a physician after his second detention.
[16] Further, his story regarding his trip to Canada was not credible. Further, on his visa it is indicated that he is married whereas on his PIF it is indicated that he is not. The applicant could not give an answer that would persuade the panel on that point.
[17] Finally, the panel noted that the applicant had himself admitted that he had never attempted to pursue the Punjabi police for the problems he had had with them. There is documentary evidence to the effect that Indian citizens have legal (and other) recourse against the police authorities. The applicant did not meet his burden of establishing that the Indian authorities were unable to provide him the protection that he claims to have needed.
SUBMISSIONS OF THE PARTIES
The applicant
[18] The applicant alleges, first, that the decision was amended after the time limit. The application for leave to challenge the panel's negative decision was filed on February 11, 2005. It was not until February 22, 2005, that the panel, through the case management officer, amended its decision. Further, a certain clerical correction was added by the Registrar on June 23, 2005.
[19] At the hearing, the applicant's counsel stated that the amendment and the correction did not justify the Court's intervention. However, the entire situation shows carelessness in the drafting of the decision.
[20] The applicant claims that the panel erred in law, considering the manner in which it analysed the evidence. For example, he alleges that it erred in criticizing the applicant for not having documents establishing the existence or the disappearance of his brother, as well as the fact that the applicant was and acted as a real estate agent. The applicant submits that there was not a total absence of evidence on those points, as the panel suggested. Mr. Singh states that he had an FIR which mentioned the name of Sukhwinder as well as two affidavits, one from the village sarpanch and the other from the district councillor. Further, it is argued that the applicant had said that he had been questioned by the police contrary to the determination made that there was absolutely no mention of Kashmir police. The applicant also criticizes the panel for not being satisfied with the explanations given to establish that he had sought medical services after the second detention. The applicant also testified to the effect that there was evidence in India regarding his employment as a real estate agent, contrary to the evidence filed.
[21] Finally, the applicant contends that despite the determinations made regarding his credibility, the panel should have considered his fate if he were to be removed to his country. As a claimant who was denied protection, it is very likely that he would be detained and questioned upon his return to his native country and, in the event that the Punjabi police were truly looking for him, he would be delivered to them. The applicant alleges that the panel should have made this analysis under section 97 of the Act. All of these errors, according to the applicant, are sufficient to justify an intervention by the Court.
The respondent
[22] The respondent, the Minister of Citizenship and Immigration (the Minister, or the respondent), notes that the panel's decision is based on the applicant's lack of credibility and cannot be vitiated unless there is a patently unreasonable error. In this case, the decision is based on a rigorous and thorough analysis of the evidence.
[23] As explained by the panel, the applicant's testimony was arduous, confused and filled with contradictions and inconsistencies on several aspects of his claim. The panel properly explained in its reasons why the applicant was found to lack credibility. In the case law, it has been consistently held that it is the panel's responsibility to assess the evidence as well as the claimant's credibility. Considering the real deficiencies bearing on important elements of the applicant's story, the panel was properly entitled to find that the applicant was generally lacking in credibility. The panel has the necessary latitude to prefer documentary evidence to the claimant's testimony. Further, the panel did not say that the evidence was absolutely lacking but rather that the applicant had not succeeded in meeting his burden of establishing the existence and the disappearance of his brother. The Court is of the opinion that there is no error justifying its inference in that assessment of the evidence.
[24] With respect to the amendment of the decision, the respondent claims that it is well settled in the case law that a panel can correct such a clerical error. The applicant did not establish that the panel had relied on evidence that was not before the panel. It appears, rather, that the amendments were intended to correct incorrect references to the earlier version of the regional binder on India.
ANALYSIS
The standard of review
[25] The questions regarding a claimant's credibility in the context of a judicial review are subject to the standard of review of patent unreasonableness: Dhindsa v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2011 (QL) (F.C.T.D.) At paragraphs 41-42; see also Montréal (City) v. Canadian Union of Public Employees, Local 301, [1997] 1 S.C.R. 793 at page 844. Further, it is well recognized that the Refugee Protection Division has full jurisdiction to determine the truthfulness and the weight to assign to testimony: see Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL).
(a) Did the panel err in amending its decision outside the prescribed time limit?
[26] On February 22, 2005, an officer of the Refugee Protection Division sent a letter to the applicant with a copy of the amended reasons of the decision dated January 17, 2005. The applicant had then already filed his application for leave for judicial review. According to the applicant, these amendments were outside the prescribed time limit and establish that the assessment of the documentary evidence was erroneous since it referred to the wrong binder. Further, as noted, the Registrar made a clerical correction. As already stated, the applicant does not contend that this is sufficient to set aside the decision, but that such corrections betray a certain complacency during its drafting.
[27] After analyzing the nature of the amendments as well as the case law on this point, specifically Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186, I am also of the opinion that these amendments do not vitiate the decision. As the respondent explained to us, these amendments were intended only to correct the erroneous references to the earlier version of the regional binder on India used by the Refugee Protection Division in Montréal. I have no evidence before me to the effect that the amendments affected the decision with regard to its determinations or that the decision would have been patently unreasonable without those amendments. The amendments are only clerical and are not sufficient to vitiate the decision in its entirety. However, it remains that such decisions must not, to the extent possible, be amendable in their final state because it is possible that the clerical errors as a whole show a certain carelessness by the writer in his or her work.
(b) Did the panel rely on erroneous facts or disregard certain evidence in deciding that the applicant lacked credibility?
[28] The applicant has not persuaded me that the panel made such an error. It was reasonable for the panel to determine that Mr. Singh was not credible with respect to his version of the facts.
[29] The panel determined that Mr. Singh was an evasive witness who often had difficulty answering simple questions. According to the panel, he did not answer precisely and clearly. Further, the panel identified contradictions and omissions between the applicant's testimony and his PIF, including the circumstances of his arrest by the police on December 27, 2003. After reviewing the transcript, I note that this appears to be the case (see pages 227, 254, 282 and 292 of the transcript of the applicant's testimony, tribunal record). The applicant was often unable to answer fairly simple questions. In the decision Wen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 907 (QL) at paragraphs 2 and 3, the Federal Court of Appeal reminds us that the Convention Refugee Determination Division (now the Refugee Protection Division), having seen and heard the claimant, is in a better position to assess the credibility of his or her testimony:
The Refugee Division's decision turned wholly on an adverse finding of the appellant's credibility. That finding was founded in part on a number of perceived internal contradictions and inconsistencies in the appellant's story. While it may be possible to view the bases of this perception differently, we must resist the temptation of doing so when it has not been shown that it was not reasonably open to the Refugee Division.
That apart, we also observe that the adverse finding was based as well on the appellant's answers being "confusing" and "evasive". This assessment of personal demeanour ought not to be interfered with by this Court which lacks the advantages available to the triers of fact.
[30] With respect to the fact that the panel criticizes Mr. Singh for failing to file any evidence regarding his brother Sukhwinder or about his employment as a real estate agent, I find that this was reasonable. It is the claimant's responsibility to assume his burden of proof. In this case, Mr. Singh's claim was based in large part on the fact that the police had pursued his brother for several years and on the fact that Mr. Singh had helped Kashmiri militants find an apartment. The evidence establishes that Mr. Singh really began to have problems with the police more than 20 years after Sukhwinder's disappearance. It is difficult to believe that the police would target him because of his brother after so much time had gone by. However, even if that was truly the case, Mr. Singh would have had to prove it. That said, the Court notes that the panel's choice of words to the effect that there was a total lack of evidence regarding the existence and the disappearance of the brother is extreme and that a more balanced determination should have been made (see the last sentence of the second paragraph of page 4 of the panel's decision). The evidence establishes that there were some documents. However, a full reading of paragraph 2 of page 4 gives a somewhat better understanding of the panel's position on that subject.
[31] With respect to the employment as a real estate agent, if the police were truly persecuting him based on the fact that he had helped these two young men find an apartment, Mr. Singh had to be able to prove it. Mr. Singh should have been able to establish that he truly was a real estate agent. I note that after the hearing of November 23, 2004, the applicant sent his counsel a document showing that he had worked in such a position. However, there was no explanation provided to justify why that document had not been sent to the panel before it made its decision on January 17, 2005. In any event, it is the panel's responsibility to assess all of the evidence and to give it the probative value that it deems appropriate. The panel did not disregard any evidence and did not rely on the irrelevant evidence. That said, the Court will not intervene on that point.
[32] Further, it was reasonable for the panel to criticize Mr. Singh for not having sought the protection of the Indian authorities. As the panel noted, in India there is recourse for citizens against police abuse. The applicant simply did not inform himself regarding that recourse. Accordingly, it was reasonable for the panel to determine that Mr. Singh did not establish that he would be unable to get protection from the Indian authorities.
[33] With respect to the medical services resulting from the detention in February 2004, the Court notes that the PIF is silent on that subject and that the applicant's testimony did not clarify that situation. There is evidence of medical services following the first detention of December 2003.
[34] The Court carefully reviewed the entire decision as well as part of the stenographer's notes. After that review, the Court notes that the principal determination is not patently unreasonable considering all of the evidence. Certainly, the panel would have been well advised to write a certain part of the decision in a more balanced fashion (paragraph 2 of page 4 and 5 of the decision) for the purposes of properly reflecting the evidence filed, but the decision as such does not warrant the intervention of the Court.
[35] For all of these reasons, the application for judicial review will be dismissed.
[36] Counsel were invited to propose a question for certification but they declined.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review be dismissed and no question will be certified.
"Simon Noël" Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-940-05
STYLE OF CAUSE: JATINDER SINGH
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 30, 2005
REASONS FOR ORDER: The Honourable Mr. Justice Simon Noël
DATE OF REASONS: September 6, 2005
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Annie Van Der Meerschen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Me Michel Le Brun FOR THE APPLICANT
Lasalle, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec