Date: 20040415
Docket: IMM-5202-03
Citation: 2004 FC 571
Ottawa, Ontario, this 15th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE MICHAEL L. PHELAN
BETWEEN:
VARINDER SINGH CHANNA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Background
[1] This judicial review turns on whether the Member of the Immigration and Refugee Board (the "Member", the "IRB") made patently unreasonable conclusions as to the Applicant's credibility in respect of his refugee claim.
[2] The Applicant is a 26 year old Sikh citizen of India. He claimed prosecution on the grounds of membership in a particular group, namely perceived terrorists. Three incidents caused him to leave India. These incidents lie at the root of the Member's findings and are described in the subsequent paragraphs.
[3] Five policemen stopped the Applicant and accused him of having met and of being associated with terrorists. He was taken to a police station and beaten because he would not reveal names of terrorists (of whom he denied any knowledge).
[4] Six months later, he claimed that he and a colleague where stopped while carrying a lunch box by five policemen who accused him of providing food and weapons to terrorists. He was detained, interrogated and beaten until unconscious. He also claimed that he was kicked and struck in the face which ultimately caused cataracts in both eyes. There was somewhat conflicting evidence on this point from a Canadian doctor and from an Indian doctor.
[5] A further six months later, he was again taken by police, was unable to identify terrorists in a series of photographs and beaten until he was unable to walk.
[6] The Member rejected the refugee claim based on the implausibility of these three incidents and an omission in the Personal Information Form (the "PIF") which was relevant to the issue of state protection.
[7] On the first incident, the Member found the incident implausible because he did not accept that five police officers, without any motivation, would single out the Applicant for arrest, detention and then not provide some insight during interrogation as to what led them to conclude that he was a friend of extremists and was himself an extremist.
[8] Regarding the second incident, the Member found the story implausible because police would not consider lunch boxes designed for one or two persons as being reason to suspect that they were being used to supply food for a greater number of persons. The Member also did not accept that the beatings associated with this incident caused cataracts. That conclusion was based on Canadian medical evidence that there was only a remote possibility of trauma causing cataracts, but that the more likely cause was malnutrition.
[9] The Member did not believe that the third incident occurred because it was implausible that police, who suspected the Applicant of associating with terrorists and who likely had him under surveillance, would not have been able to conclude that he was the simple carpenter he claimed and was not, in fact, meeting with these extremists.
[10] The Member also drew an adverse inference from the Applicant's failure to mention in his PIF, but which he mentioned at the hearing, that he had contacted his Member of Parliament ("MP") about the police misconduct.
Analysis
[11] These is no issue in this case that the standard of review on credibility findings is patent unreasonableness. It is not merely sufficient to establish that there is a different and more reasonable interpretation of the facts.
[12] The Applicant challenges the Member's finding on the first incident on the basis that the Member should not have drawn an adverse conclusion on the basis of the Applicant's inability to explain why the police detained him. The Applicant relies on Kong v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 101.
[13] However, the Member did not find implausibility on the basis of the Applicant's inability to explain police conduct. The Member found implausibility based on the fact that police, assumed to be behaving rationally in the sense of having some motivation, would have more likely, in the course of interrogation, given some insight as to what led them to suspect the Applicant. This is a situation more analogous to that in Sepehri v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. 1123 than that of Kong, supra.
[14] The IRB can measure an applicant's evidence against rationality and common sense (see Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415. The Member did precisely that.
[15] The Applicant argues that in the second incident, the Member put undue emphasis on the lunch boxes. There was nothing patently unreasonable in the Member reaching the conclusion that he did. It was the Applicant himself, both in his PIF and in his viva voce testimony, who raised the lunch boxes as a trigger for police abuse.
[16] The Applicant complains that the Member misconstrued the medical evidence as to the cause of the cataracts and did not properly consider the whole letter from the Canadian doctor. The Applicant says that the letter is corroborative of the incident where he was beaten around both eyes which trauma would cause the cataracts.
[17] While others might reach a different conclusion, the Member was entitled to give what weight he did to the letter from an Indian doctor, written after the Applicant applied for refugee status. The Member was entitled to accept the Canadian doctor's conclusion on the balance of probabilities of causation, which was that the Applicant's cataracts were not likely caused by his alleged beatings.
[18] Finally, the Applicant criticizes the Member for drawing an adverse conclusion concerning an omission from the PIF. The Applicant says that it is patently unreasonable to put so much weight on the omission of approaching his MP about police conduct.
[19] While the Applicant may have given a cogent explanation for the omission, that does not make it a credible explanation. Had the Member's whole credibility finding rested on this point, the Applicant's case might be stronger.
[20] However, in the context of all of the evidence, where the Member had concerns about the Applicant's story of police brutality, it was not patently unreasonable for the Member to conclude that the incident of approaching his MP about police brutality, which only came out at the hearing in response to cross-examination, was a negative factor affecting overall credibility.
[21] For these reasons, I conclude that the IRB's decision on the points in issue is not patently unreasonable.
[22] There is no question to be certified.
ORDER
THIS COURT ORDERS that this application for judicial review be dismissed.
"Michael L. Phelan"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5202-03
STYLE OF CAUSE: VARINDER SINGH CHANNA v. MCI
DATE OF HEARING: March 16, 2004
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER: The Honourable Mr. Justice Michael L. Phelan
DATED: April 15, 2004
APPEARANCES BY: Mr .Lorne Waldman
For the Applicant
Mr. Stephen Jarvis
For the Respondent
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario
For the Applicant
Morris Rosenberg
Toronto, Ontario
For the Respondent