Date: 20011213
Court File No.: IMM-5054-00
Neutral Citation: 2001 FCT 1376
Ottawa, Ontario, this 13th day of December, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
HARPAL SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Nature of Proceedings
[1] The applicant, Harpal Singh, seeks judicial review of a negative decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ( CRDD ) dated September 7, 2000. The applicant is a farmer from Mandi, in the district of Jalandhar, Pundjab, India. His evidence is that a terrorist was shot to death on the family farm on June 29,1998. He, along with his father and brother, ran to the pump-well house where twenty police officers arrested them. They were detained for two nights, interrogated separately, and tortured. The applicant claims that the police beat the soles of his feet, pulled his legs, hit him all over, hanged him from his feet and banged his head against the wall. They were released upon payment of a bribe.
[2] On June 6, 1999, the applicant and his father were arrested and accused of working with militants linked to a cyanide operation destined to kill large numbers of people. The applicant was again tortured and given electric shocks, which he claims affect him to this day. On August 14, 1999, the applicant was called to the police station for questioning where he was again detained and tortured. He claims that in order to secure his release, he agreed to work as a police informer. His evidence is that he was given one month to deliver information or be killed. Upon his release he decided to run away and claims that upon the expiration of the deadline the police visited his mother and beat her in an attempt to find out where he was hiding. She gave the police a false address and the house at that address was raided. It is at this point that the applicant realized that he would get caught sooner or later if he didn't leave India. He moved to New Delhi before leaving for Canada. He arrived in Canada on November 5, 1999, where he claimed refugee status.
[3] On September 7, 2000, the CRDD found that the applicant was not a convention refugee and further found there to be no credible basis for the claim pursuant to subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2 . The CRDD concluded that there was insufficient credible and trustworthy evidence to allow it to determine that there is a serious possibility that the applicant would be persecuted for any convention reason should he be returned to India. At page 3 of its reasons the CRDD stated:
When considering the vagueness of the claimant's testimony, major contradictions about his torture, the situation which now prevails and the non-political involvement of the whole family, the panel comes to the conclusion that the claimant is not credible when alleging that the police will be looking for him all over India because he is considered to have joined terrorists. This is not plausible. The claimant does not have the profile of a terrorist, nor can the police, as it was bluntly put to the claimant, believe that he would have any information on militants.
Standard of Review
[4] The standard of review of decisions of the CRDD is generally patent unreasonableness. In questions involving the interpretation of a statute or questions of law, the applicable standard is correctness. [See Conkova v. Canada (Minister of Citizenship and Immigration, [2000] F.C.J. No. 300; Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193.]
[5] The applicant argues that the CRDD based its decision on erroneous findings of fact that were made in a perverse or capricious manner. The applicant contends that the CRDD erred in finding that the applicant's lack of spontaneity at the hearing justified a negative finding on credibility. The applicant submits that the Diagnostic Interview Report, reasonably explains why the applicant had difficulty recalling certain events and relating these in his PIF, such as the fact he was burned while being tortured. The report explains that it is normal for individuals to develop protection mechanisms when they are tortured making it difficult for them to later recall the most cruel incidents. The applicant also contends that the CRDD erred in finding implausible that the police would think that he would be in a position to provide any information on militants, given his political profile, or the lack of any. And finally the applicant contends that the CRDD's observation that his "extremely fine and smooth skinned hand, not the hands of a laborer or a farmer" is unreasonable, since such a finding could not be made by observing his hands at a distance.
[6] The case before me essentially turns on findings of credibility, plausibility and facts. The words of Décary J. in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, pp. 316-317 at paragraph 4 are applicable:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn
In the words of the learned Judge, the burden rests on the appellant to show that the inferences drawn by the Refugee Division could not reasonably have been drawn. On the issue of lack of spontaneity at the hearing, the applicant relies exclusively on Mr. Woodbury's Diagnostic Interview Report. The respondent's position is that the CRDD gave appropriate weight to this Report. Its author is an Orientation Counsellor and not a Clinical Psychologist with the necessary competence to provide diagnosis of the applicant's alleged post-traumatic stress syndrome. The evidence is that the CRDD did consider the Report. It is apparent from the reasons that little if any weight was given to this Report. Given that the author was not in a position to provide an expert opinion on the applicant's alleged post traumatic stress syndrome, I find the CRDD's reasons in terms of how it dealt with this Report not to be unreasonable.
[7] With regard to the DRDD's findings respecting the applicant's and his family's political profile, it is noted that the reasons reflect that this point was explored fully. The evidence of the applicant is that no one in his family is interested in politics; no warrants were issued against him; neither he nor his brother had ever been to Court; there is no objective evidence that his brother had ever been involved with militants. The CRDD also noted that the applicant was not spontaneous in answering questions nor could he answer questions straightforwardly. There is also no evidence to support the applicant's contention that the CRDD ignored or misapprehended the fact that his brother was in hiding and that the police were harassing the applicant because of his brother.
[8] A review of all of the evidence, including the documentary evidence relied on by the CRDD, leads me to conclude that the findings of the Panel were reasonably open to it. I therefore conclude that the CRDD's reasons for its decision on credibility and inferences drawn on plausibility were stated in clear and unmistakable terms, and are not so unreasonable as to warrant this Court's intervention. The CRDD's findings in the instant case are, in my view, not open to judicial review.
[9] For the above reasons, this judicial review will be dismissed.
[10] The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge