Date: 20050928
Docket: IMM-10379-04
Citation: 2005 FC 1286
BETWEEN:
JASWANT SINGH
SURINDERJIT KAUR
Applicants
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the IRB) dated December 7, 2004, that the applicants are not "Convention refugees" or "persons in need of protection" as defined under sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Jaswant Singh (the applicant) and his wife, Surinderjit Kaur are citizens of India. They lived in Moga in the State of Punjab. The applicant says that he has been a member of the Shiromani Akali Dal Party (SAD) since 1996.
[3] In March 2003, the police arrested the applicant's youngest son because he was suspected of supporting the militants. The police alleged that the applicant's son escaped after he had been arrested. The applicant's eldest son attempted to bring legal proceedings against the police and was arrested on three occasions, the last time being in January 2004. The applicant went to get his eldest son, but the police denied he had been arrested and accused the eldest son of joining the militants.
[4] On March 27, 2004, the applicant consulted counsel regarding the possibility of instituting proceedings against the police.
[5] On March 29, 2004, the police arrested the applicant and his wife, alleging that they had been tortured, for having consulted counsel. Following the intervention of influential individuals and after paying a bribe, the police released them on March 31, 2004.
[6] On April 27, 2004, the applicant and his wife left India. They used their Indian passports and Canadian visas. They arrived in Canada the next day and claimed refugee status on May 12, 2004.
[7] This case is essentially a pure question of credibility and of assessment of the facts.
[8] Bear in mind that in matters of credibility, this Court cannot substitute itself for the IRB unless the applicant can establish that its decision is based on an erroneous finding of fact, made in a perverse and capricious manner or without regard for the evidence before it (subsection 18.1(4) of the Federal Courts Act, R.S.C. 1985, c. F-7). The IRB's findings will not be disturbed unless they are unreasonable to the point that they require the Court's intervention. The IRB is a specialized tribunal which has the power to assess the plausibility and the credibility of testimony to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and the reasons are stated clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.)).
[9] It is also well established that the panel, in assessing the credibility of claimants, can rely on their conduct at the hearing, their ability to answer the questions honestly and clearly and the consistency and uniformity of the answers, and that such findings regarding the quality of the testimony must be given a broad measure of deference (see Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351 and Schwartz v. Canada, [1996] 1 S.C.R. 254, at page 278).
[10] In this case, the panel noted that the principal applicant had given testimony that was vague and not very detailed, including when he was questioned about the steps taken to find his youngest son.
[11] When the panel asked him to name the individuals who had assisted in the search for his son, the applicant did not spontaneously name his eldest son. One of the allegations at the heart of the story is that his eldest son had been arrested because of the steps he took to file a complaint against the police following the disappearance of his youngest brother.
[12] The panel identified shortcomings in the evidence. It noted that the last transactions recorded on the food ration cards of the applicants' sons dated back to January 2001. It is unlikely that the applicants' sons were living in Moga at the time of the alleged incidents in 2003 and 2004, and that they never used their cards in all those years. Confronted with that, the applicants were unable to give satisfactory explanations.
[13] Another element raised by the panel, which tainted the credibility of the applicants' story, is the implausibility of their allegation to the effect that the principal applicant did not contemplate reporting the police following his youngest son's disappearance, fearing that it would create animosity, yet he took that step after the disappearance of his eldest son.
[14] The panel did not assign any probative value to the medical certificate, to the letter from counsel or to the letter from the SAD. Since the panel did not find that the applicants' story was credible and did not believe the circumstances which gave rise to that evidence, it could decide not to assign probative value to those documents (see Ali v. Minister of Citizenship and Immigration (April 25, 1995), IMM-2402-95 and Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238 (F.C.A.)).
[15] It is important to note that the panel raised as an inconsistency the fact that the medical certificate had been written on April 2, 2004, when according to the applicant's testimony he requested it in May 2004. It is certainly surprising that the doctor would have written the medical certificate even before the applicant had requested it from him.
[16] I agree with the respondent that the female applicant's ability to testify has no effect on the lack of credibility determination made by the panel since this finding was based strictly on other shortcomings in the evidence. Furthermore, the issue of the female applicant's ability to testify was discussed during the pre-trial conference at the hearing before the IRB; as the female applicant was represented by counsel, I consider that her failure to testify does not breach procedural fairness.
[17] Finally, the documentary evidence on the prevailing situation in Pundjab indicates that the Sikh militant movements have practically all been eliminated, that Sikhs are now no longer a persecuted group, that security in Pundjab is now under control and that the government has implemented legal mechanisms to fight police abuse. Considering that evidence, the panel determined that the applicants' allegations regarding the conduct of the police were not credible. That finding is not unreasonable since it is well established that the panel can prefer the documentary evidence from different sources to the claimant's testimony (Zhou v. Canada (M.E.I.), [1994] F.C.J. No. 1087 (F.C.A.) (QL)).
[18] For all of these reasons, the application for judicial review is dismissed.
[19] At the end of the hearing before me, I gave the applicants' counsel two weeks to submit the questions that they wanted to have certified, supported by submissions in writing. The opposing party was then given two weeks to submit his own submissions in writing. On September 7, 2005, the applicants' counsel submitted in writing two questions for certification without however discussing them on the merits with written submissions. For his part, the respondent's counsel then filed submissions in writing to oppose the certification of the proposed questions, submissions with which I agree. Therefore, no question is certified.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
September 28, 2005
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10379-04
STYLE OF CAUSE: JASWANT SINGH, SURINDERJIT KAUR v. MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 24, 2005
REASONS FOR ORDER: Pinard J.
DATE OF REASONS : September 28, 2005
APPEARANCES:
Michel Le Brun FOR THE APPLICANTS
Suzon Létourneau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANTS
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Certified true translation
Kelley A. Harvey, BCL, LLB