Date: 20020927
Docket: IMM-5526-01
Neutral Citation: 2002 FCT 1012
Ottawa, Ontario, September 27, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
JASWANT SINGH GARCHA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review under the authority of subsection 82.1(1) of the Immigration Act against the decision of the Convention Refugee Determination Division [the "Refugee Division"] rendered on November 5, 2001 wherein the Refugee Division determined that the applicant is not a Convention refugee.
FACTS
[2] The applicant was born on May 30, 1970 and is a citizen of India. He is of the Sikh religion.
[3] The applicant's father supported the Akali Dal Mann Party and the local temple. The applicant alleges that his father was arrested several times due to his political/religious affiliations between the period of 1992 and 1995.
[4] In February 2000, the applicant alleges that he supported the Akali Dal Mann Party in Nawandhahr. He was arrested during the same month and was released with the help of the village council and the payment of a bribe to the police.
[5] In April 2000, the applicant and his mother moved to Ambala City in Hayana State.
[6] The applicant alleges that the police in the Punjab was raiding the houses of his relatives in order to establish his whereabouts. Therefore, it was decided that he should flee India.
[7] In August 2000, the applicant came to Canada and claimed refugee status alleging a well-founded fear of persecution because of the political opinion that has been attributed to him by the Indian authorities and also because of his religion.
ISSUE
[8] Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
ANALYSIS
[9] No, the Board did not err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it.
The credibility of the applicant
[10] The Board was dubious of the applicant's credibility based on certain omissions, discrepancies and inconsistencies. To illustrate, at page 4 of its decision, the Board came to the following conclusion:
When all is considered, there are serious issues of credibility, which have led the Tribunal to negatively assess the truthfulness of the claimant's allegations.
[11] In order to reach this finding, the Board found there to be many contradictions and so, wrote at page 3 of its decision:
The claimant's account was inconsistent with the written narrative with regard to the arrests of his father and when they occurred.
and further down page 3:
There were other contradictions with regard to the allegations.
again at page 4, it can be read:
There were also other contradictions in the Point of Entry documents and the declarations made by the claimant at the airport.
[12] In coming to credibility findings, the Board is entitled to consider contradictions or discrepancies in the evidence of a refugee claimant. This was illustrated in Rajaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1271 (F.C.A.), where Stone J.A. held:
If it is apparent that a decision of the Board was based on the claimant's credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court (Brar v. Minister of Employment and Immigration, Court File No. A-937-84, Judgment rendered May 29, 1986). Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility.
(emphasis added)
[13] The Refugee Division is entitled to decide adversely with respect to a claimant's credibility as the determination of the claimant's credibility is the heartland of the Refugee Division's jurisdiction since it is the trier of fact.
[14] The jurisprudence of this Court has found that the Board has a well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility of an applicant. This Court cannot intervene with the findings of fact made by the Board, unless it is demonstrated that the conclusions drawn are unreasonable or that they are capricious, made in bad faith or not supported by the evidence. This was recently confirmed in the case of Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 (F.C.T.D.), where this Court held:
[para 38] It is trite law that the Board has the discretion, and indeed is in the best position, to assess the credibility of an applicant: Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.).
Preference toward documentary evidence
[15] The Board did in fact compare the applicant's testimonial evidence to the documentary evidence and determined that it preferred the latter over the former. The Board did not find the applicant's testimony to be convincing. It was therefore open to the Board members to prefer the documentary evidence to that of the testimony of the applicant. At page 2 of its decision, the Board wrote:
The evidence does not suggest that Sikh males are a specific persecuted group in India. Therefore, the arguments related to the granting of refugee status based on the premise that the claimant was persecuted because he belonged to a particular social group, cannot be said to be ascertained and are not credible given the evidence at hand.
(emphasis added)
[16] In addition, the Board wrote at page 4:
The claimant also indicated that he feared going back to India because he felt that the police was after him due to his political activities with the opposition parties. The evidence does not support such an allegation. The evidence shows that it has been several years that the Akali Dal Mann faction can freely operate and field candidates in the different elections without the systematic persecution alleged by the claimant.
(emphasis added)
[17] In Zvonov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1089 (F.C.T.D.), Rouleau J. affirmed:
[para 15] Finally, I am not persuaded that the Board erred by preferring the documentary evidence to that of the Applicant. The Board members are "masters in their own house" and it is open to them to decide what weight to give the evidence; in the present case they accepted the Applicant's testimony but chose to place more weight on the documentary evidence.
(emphasis added)
[18] The Board found the documentary evidence to be reliable and preferred this evidence to that of the applicant's testimony. As stated clearly by the jurisprudence of this Court, the preference for certain evidence over other evidence is entirely within the purview of the Board.
The Sarpanch'saffidavit evidence and medical certificate
[19] It is now clear that the applicant's Personal Information Form (PIF) as well as the majority of the evidence presented by the applicant in the present case is characterized by numerous discrepancies and inconsistencies. The general lack of credibility affected the weight attributed to the affidavit evidence and the medical certificate by the Board. The Board made reference to these two (2) documents at page 4 of its decision:
The Tribunal also gives no probative value to the Sarpanch's Affidavit and to the Medical Certificate as corroborative evidence for the claimant's allegations.
[20] In Danailov v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1019 (F.C.T.D.), Reed J. stated:
With respect to the arguments concerning the panel's findings on credibility, I read both the transcript and the Tribunal's decision before hearing counsels' submissions. I have now had the benefit of those submissions and could not conclude that the Tribunal's finding was other than entirely proper on the basis of the evidence before it. With respect to the assessment of the doctor's evidence, to find that that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.
(emphasis added)
[21] Also in Madahar v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1614 (F.C.T.D.), an issue arose in regards to the medical evidence presented to the Board. The Court made reference to Kalia v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1682 (F.C.T.D.) where Pinard J. concluded:
While the above is sufficient to dismiss this application, I also wish to address the Board's dismissal of the applicant's medical evidence. In my view, it was open to the Board to reject this medical evidence, given that the facts underlying the reports were found not to be credible.
(emphasis added)
ORDER
Therefore, there has been no error upon which to interfere with the Board's findings in this case, and for these reasons, the application for judicial review is dismissed.
No question for certification.
Pierre Blais
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5526-01
STYLE OF CAUSE:
JASWANT SINGH GARCHA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: MONTRÉAL, QUÉBEC
DATE OF HEARING: September 25, 2002
REASONS FOR ORDER
AND ORDER BY: BLAIS J.
DATED: September 27, 2002
APPEARANCES BY: Me Styliani Markaki
For the Applicant
Me Isabelle Brochu
For the Respondent
SOLICITORS OF RECORD: Me Styliani Markaki
4 Notre Dame East, suite 902
Montreal, Quebec
For the Applicant
Me Isabelle Brochu
Department of Justice
For the Respondent