Date: 20050118
Docket: IMM-3123-04
Citation: 2005 FC 34
Ottawa, Ontario, the 18th day of January 2005.
Present : THE HONOURABLE MR. JUSTICE SHORE
BETWEEN :
INDERPAL SINGH GILL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] A first instance trier of fact can base its finding of credibility on the inherent cogency, or lack thereof, of very few but key or core facts, to the narrative. The credibility finding requires substantiation to ensure that a decision is adequately motivated or reasoned.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act[1] (IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on March 8, 2004, dismissed the Applicant's claim for "convention refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.
BACKGROUND
[3] An Indian citizen, the Applicant, Mr. Inderpal Singh Gill, alleges that he had been a taxi driver, who was often forced, without compensation, to drive members of the police force to track down terrorists. In addition, he claims he had been arrested three times, insulted and tortured by the police who suspected him of transporting terrorists and their arms. As alleged, the first detention lasted seven days, the second, one day, and the third, six days. The police requested that he assist in the search for terrorists on a continuing basis until January 25, 2003; and the police threatened to arrest Mr. Gill and to kill him, should he not acquiesce to its demands. According to Mr. Gill, he failed to assist the police, which led the police to arrest his father. As a result of the events described, he decided to flee his country.
DECISION UNDER REVIEW
[4] The Board concluded Mr. Gill was not credible for three reasons. It also found that Mr. Gill did not present any credible evidence to show that he was a person in need of protection.
ISSUES
[5] 1. Was it patently unreasonable for the Board to conclude the Applicant was not credible?
2. Can a non-credibility finding under section 96 justify the rejection of a claim under section 97?
ANALYSIS
1. Was it patently unreasonable for the Board to conclude the Applicant was not credible?
[6] Where credibility is at stake, the Board's mistake must be patently unreasonable for this Court to intervene [Aguebor v. Canada (Minister of Employment and Immigration),[2] Pissareva v. Canada (Minister of Citizenship and Immigration),[3] Singh v. Canada (Minister of Citizenship and Immigration)[4]].
[7] The Board's reasons were as follows:
Après avoir analysé toute la preuve tant testimoniale que documentaire, le tribunal n'a pas trouvé le demandeur crédible pour les raisons suivantes.
Premièrement, alors qu'il prétend avoir conduit dans son taxi les policiers à la recherche des terroristes (militants) le demandeur a déclaré tantôt les avoir rencontrés, tantôt ne les avoir jamais vus.
Le tribunal estime que cette déclaration contradictoire mine la crédibilité du demandeur. En répondant qu'il ne les a jamais vus, il confirme l'idée qui se dégage de la preuve documentaire selon laquelle le militantisme sikh a été réduit à sa plus simple expression. Ne subsisterait qu'un militantisme résiduel. Dans les circonstances, le tribunal ne croît (sic) pas que la police qui connaissait le taxi du demandeur puisse l'arrêter en le soupçonnant de transporter les militants et leurs effets.
Deuxièmement, les allégations du demandeur sont à l'effet qu'il a été arrêté trois fois et torturé. Le tribunal trouve invraisemblable qu'il n'ait pas quitté immédiatement le Punjab. Interrogé, il a prétendu qu'il avait sa mère et son travail. Le tribunal ne peut se satisfaire d'une telle réponse parce que la connaissance que le demandeur avait des méthodes de la police qu'il accompagnait à la recherche des terroristes aurait pu le décider à quitter. Cette incohérence dans son attitude en rajoute à son manque de crédibilité.
Troisièmement, alors que le demandeur prétend avoir été arrêté et torturé, le tribunal constate, selon sa réponse à la question 41 du Formulaire de renseignements personnels (FRP), qu'il n'a pas porté plainte. Interrogé, il a prétendu avoir contacté un avocat d'une part et d'autre part, avoir été découragé par le syndicat.
Le tribunal considère ces réponses comme des ajouts. En effet, ces réponses auraient dû figurer à son FRP où le libellé de la question 41 est assez clair : « Précisez les mesures que vous avez prises pour obtenir la protection des autorités de votre pays et les résultats obtenus si vous n'avez pas essayé d'obtenir cette protection, précisez la raison » .
Le tribunal est d'avis que l'ajout dans ce contexte en rajoute au manque de crédibilité du demandeur.
[8] After a careful reading of the transcript, the Court is satisfied that the Board's findings with respect to the Applicant's lack of credibility are not patently unreasonable. The Court takes note that the Board's reasons are relatively short, although sufficient. On this point, the Court adopts the view as expressed by the Federal Court of Appeal in Jaworski v. Canada (Attorney General):[5] the Commissioner's reasons for the decision to confirm the adjudication board's finding that Jaworski was guilty of misconduct were considered acceptable:
While the Commissioner's reasons for upholding the board's decision and rejecting the Committee's were terse, they were sufficient to meet the statutory requirement to provide reasons. (Emphasis added)
[9] Nevertheless, the Court is of the view that the Board could have made a precise, rather than general, reference to the documentary evidence, showing that militant Sikh activities have, in fact, significantly decreased in recent years.
2. Can a non-credibility finding under section 96 justify the rejection of a claim under section 97?
[10] Mr. Gill argues that, even if the Board found his testimony not to be credible, enough evidence was submitted, even if only of a documentary nature, to warrant that the Board conclude of his need for protection under paragraph 97(1)(a) of IRPA because of the danger of torture upon return to his country. Mr. Gill states that section 9.4 of the Report of Fact-Finding Mission to Punjab (Report), amongst other documents submitted to the Board on this point, demonstrates that refused asylum seekers who return to India are at risk of being tortured if sent back to India. Here are the relevant excerpts of the Report:
UNHCR observed that judging by their general information on Indians who returned after having their asylum applications abroad rejected returnees did not have problems if they returned with valid travel documents and if their departure had also taken place with valid travel documents. Those who had not complied with Indian laws on leaving and arriving in India might be prosecuted. According to the Passport Act the maximum punishment was two years' imprisonment or a fine of a maximum of 5000 rupees (approx. DKK 800.)
According to the UNHCR, refused Indian asylum seekers who returned to India with temporary travel documents could enter without any problems as such, but if they arrived after their passport had expired then they would be questioned about the reasons for this. These arrivals were questioned briefly and could then leave the airport. If the fact that the person returning had applied for asylum/refugee status abroad had not come to the knowledge of the Indian immigration authorities then he would not attract any particular attention other than prosecution for breaking the passport law.
The UNHCR also remarked that in cases where the Indian authorities became aware that the person returning had been refused asylum, it was likely that the immigration authorities would detain the person in question briefly for questioning and then release him, unless he aroused their suspicion by his behaviour or was being sought by the Indian security services. ...
However, it would not be seen as an offence to have sought asylum in another country unless the person in question had connections with a terrorist group or a separatist movement and could be connected with activities which might damage India's sovereignty, integrity or security ...
For Indian asylum seekers who were already wanted by the Indian authorities for earlier offences such as alleged involvement in a terrorist group, arrival in India would certainly lead to prosecution wherever the Indian citizen landed or went afterwards.
[11] Whereas Mr. Gill quotes another passage of the same Report:
The human rights lawyer Ranjan Lakhanpal said that returnees would be questioned at the airport and tortured as all returnees would be regarded as suspect. Lakhanpal said that he knew of a case involving a person who had been returned from the USA two years previously. He had been released after two months. Baljit Kaur (Movement Against State Repression) also said that returnees would be regarded as suspects, detained and tortured. Another member of MASR, Inderjit Singh Jaijee, added that those who were sent back to India as refused asylum seekers would automatically be questioned, and according to Jaijee questioning entailed torture. Jaijee said that the questioning did not take place at the airport but that people were taken to police stations.
[12] The Court points out that, although the Report gives information in respect of the severity of sanctions, the UNHCR does not report on the risk of torture but rather asks questions and generally probes the possibility of brief detention periods in specific cases. Furthermore, of the three individuals indicating a risk of torture, none gave subsequent details and only one made reference to a specific case of detention. The Court would also like to note that, since the Applicant was not found credible with respect to his link with terrorists, he cannot be said to fall in the category of "Indian asylum seekers who were already wanted by the Indian authorities for earlier offences such as alleged involvement in a terrorist group" who could, according to the Report, be subject to harsher treatments.
[13] In any case, one section of one report, when read in complete context, also describes divergent views; and, in context, it cannot be considered to lead the Board to conclude there are "substantial grounds to believe" that a person would risk torture if returned to his or her country. Such a finding is for the Board, and the Board alone to conclude, both as a specialized tribunal in assessing the documentary evidence and, as a first instance, trier of fact.
[14] In the case at bar, the Board found the Applicant, not to be credible with respect to section 96; and, as the Board found no other credible evidence, no substantial grounds remain by which the Applicant could be found by the Board to be subject to a danger of torture pursuant to paragraph 97(1)(a) of IRPA [Gonulcan v. Canada (Minister of Citizenship and Immigration)[6] and Pradeep Singh Atwal v. Minister of Citizenship and Immigration[7]].
CONCLUSION
[15] For these reasons, the Court answers the first question, at issue, in the negative and the second, in the affirmative. Consequently, the application for judicial review is dismissed.
ORDER
THE COURT ORDERS that this application for judicial review be dismissed. There is no question to be certified.
"Michel M.J. Shore"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3123-04
STYLE OF CAUSE: INDERPAL SINGH GILL
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: January 12, 2005
ORDER AND ORDER: The Honourable Mr. Justice Shore
DATE OF REASONS FOR
ORDER AND ORDER: January 18, 2005
APPEARANCES:
Mr. Jean-François Bertrand FOR THE APPLICANT
Mr. Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
BERTRAND, DESLAURIERS FOR THE APPLICANT
Montreal (Quebec)
JOHN H. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
[1] S.C. 2001, c. 27.
[2] (1993) 160 N.R. 315 (F.C.A.), _1993_F.C.J. No. 732 (QL).
[3] (2001) 11 Imm. L.R. (3d) 233 (F.C.T.D.), _2000_F.C.J. No. 2001 (QL).
[4] (2000) 173 F.T.R. 280 (F.C.T.D.), _1999_F.C.J. No. 1283 (QL).
[5] (2000) 25 Admin. L.R. (3d) 142 (F.C.A.), [2000] F.C.J. No. 643 (QL) at paragraph 84.
[6] [2004] F.C.J. No. 486 (QL).
[7] IMM-4518-02, September 2, 2003 (Martineau J.).