Date: 199903025
Docket: IMM-1232-98
BETWEEN:
JASBIR SINGH BOPARAI
DALBIR KAUR BOPARAI
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board (Refugee Division) dated March 5, 1998, wherein the Refugee Division determined that the applicant was not a Convention refugee.
Facts:
[2] The applicant is a 31 year-old citizen of India, a baptised Sikh from Punjab with a post-secondary education. His father is a doctor by profession and a farmer. The claimant fears persecution from state authorities as a baptized Sikh and as a suspected supporter of Sikh militancy.
[3] The claimant has never been a member of a political organization. In 1986, he took part in a protest rally organized by the All India Sikh Students Federation. The police intervened and he escaped unhurt. During those days he also escaped a police raid in Model Town.
[4] In the middle of 1990 a police party raided Lyallpur Khalso College where the applicant was pursuing his Master's degree in Economics. He escaped the arrest and was so afraid that he did not go back to college; instead he went to Patiala and joined the M.A. course in religious studies there which he completed in March 1992. He then moved back to his village since the situation had cooled down.
[5] In the middle of January 1995 he was travelling in a bus to visit his in-laws at Patiala. The applicant was arrested at a check point by the police and detained for 5 days.
[6] On April 3, 1995, the applicant was arrested again during a police raid in villages and was detained for 10 days.
[7] The applicant was again arrested on November 26, 1995, and detained for 3 days. His father was also detained.
[8] On December 8, 1995, the police raided the house of the applicant early morning to arrest him but he escaped through the back door and went to hide at a friend's house.
[9] On February 4, 1996, the applicant travelled to Canada to claim refugee status on the advice of an agent who had made all the arrangements.
[10] The applicant states that in each detention he was beaten and tortured and that a bribe had to be paid for his release.
Applicant's relevant arguments:
[11] Applicant's suggests that the tribunal had no reasonable basis to doubt the applicant's credibility. The testimony was corroborated by the documentary evidence such as letters, medical evidence, photographs and the current documents.
[12] It is submitted that the tribunal drew a negative inference without any logical reasons and erred in law in concluding that the applicant was not a member of any political party and he was educated hence his testimony concerning his problems in India is unpersuasive and not trustworthy. It is submitted that any non-political or educated person could be victim of persecution could fall under the category of Convention refugee. Even though the applicant was not a member of the All India Sikh Student Federation, he was an active supporter of the Federation.
[13] It is submitted that he was suspected of being involved in militant activities and was alleged to be responsible for the deaths of police personnel. He clearly stated that the police suspected him to be involved in militant activities. It is submitted that he was taken away from the bus in January 1995, because he was a baptized Sikh. His appearance was different from the non-Sikhs and the non-baptized Sikhs. It is very reasonable that he was considered as a suspect by the police and was asked to leave the bus.
[14] It is submitted that the tribunal drew an unreasonable conclusion on the basis of plausibility and hence made a reviewable error in law in finding the evidence not persuasive. It is submitted that the essence of the applicant's evidence was that he was detained because the police wrongly assumed that he was a member of the AISSF when in fact he was only a sympathizer.
[15] It is submitted that the tribunal ignored the evidence properly before it on the issue. The applicant testified that he was released from the custody by paying each time he was arrested. The documentary evidence properly before the tribunal indicated that extortion is another motivation for the police to arrest and detain people to extort money.
[16] It is submitted that in terms of the tribunal's inference that given that the applicant had already been arrested twice and the authorities would already have known by this time that he was not a member, the tribunal's inference is again perverse. The applicant was arrested on two occasions even though he was not a member because the authorities suspected him of membership due to his contacts.
[17] It is submitted that the Board failed to consider that the applicant was tortured in India.
Female Applicant
[18] It is submitted that the Board erred in law in not having considered the female applicant's claim on the merits of her own situation.
[19] It is submitted that the female applicant was persecuted by police for her own activities and for the reason of her husband's problems with the police. Her testimony, written as well as oral, was uncontradicted and without any internal inconsistency.
[20] It is submitted that if the Board found her testimony credible they should have concluded that she had a well-founded fear of persecution.
[21] It is submitted that the Board totally ignored the testimony of the female applicant and made no independent findings as to the merit of her claims.
[22] It is submitted that by merely relying on the adverse credibility finding with respect to the husband, and by failing to note that the female applicant had put forward a claim that was independent in key respects from that of her husband, the Board failed to exercise its jurisdiction with respect to the female claimant and failed to make an independent determination of her claim, and in so doing erred in law.
Respondent's relevant arguments:
[23] It is submitted that it was open to the Refugee division to decide that the applicants' evidence in regard to this alleged arrest in January 1995 was not credible.
[24] It is submitted that it is reasonable for the Refugee division to infer that someone who had allegedly been detained for five days, interrogated by an inspector, and badly beaten and accused of murdering and being a militant would be more descriptive and give more detailed information than merely stating the police suspected from his features that he was a Sikh and that he did not know why the police took him down off the bus or why he was kept for five days.
[25] It is submitted that the Board was of the view that since the applicant was an educated person he would have been able to give more responsive answers to questions about what occurred to him in the Punjab.
[26] It is submitted that it was reasonable for the Refugee division to find the applicants' evidence about the alleged incident of December 8, 1995 not persuasive given that his evidence in regard to why his home was raided was quite imprecise.
[27] It is submitted that questions of credibility and weight of evidence are within the jurisdiction of the Refugee division as the trier of fact in respect of Convention refugee claims within the legislative scheme of the Immigration Act.
[28] It is submitted that a nexus must exist between the personal situation of the refugee claimant, and the general situation with respect to human rights in the country from which the refugee claimant is fleeing. Convention refugee status does not exist at large so that anyone from a country with an unfavourable human rights record is automatically determined to be a Convention refugee.
[29] It is submitted that the claimant must adduce some evidence that violations of human rights established by documentary evidence threaten him personally if he returns.
Female Applicant
[30] Relating to the female applicant, it is submitted that the Refugee Division did consider both aspects of her claim, that is that the Indian authorities would persecute her in the effort to get hold of her husband and also the incident that allegedly occurred in October 1996.
[31] It is submitted that it was open to the Board not to believe her evidence given that they did not believe her husband's evidence, and given that her evidence was that the arrest in October 1996 was because the police wanted to ask her questions about her husband.
[32] It is also submitted that the Refugee Division properly considered the female applicant's delay of four months after a removal before making a refugee claim.
| Issue: |
[33] Did the Refugee Division based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it?
Analysis:
[34] The Federal Court has established clear guidelines to be followed when assessing credibility findings by inferior tribunals. As indicated by counsel for the applicant, these principles were summarized succinctly in the case of Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.)
| 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. |
[35] See also Armson v. M.E.I. (1989), 9 Imm. L.R. 150 (F.C.A.):
| A refugee claimant is not, therefore, absolved of the duty of telling the truth. The tribunal hearing his evidence is entitled to disbelieve him and to base its decision on that assessment but is required to give reasons for a finding of lack of credibility in "clear and unmistakable terms". |
[36] Also, regarding the credibility issue, the standard of review established by the Federal Court of Appeal in Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 and applied in Mejia v. Canada (Minister of Employment and Immigration), [1997] F.C.J. No. 1243 needs to be cited.
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has completed jurisdiction to determine the plausibility of testimony: who is in a better position that 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 this case, the appellant has not discharged its burden. |
[37] The claimant's evidence has been given through an interpreter but a reading of the transcript of the Board hearing does not suggest any possibilities of innocent misunderstanding in the case at bar.
[38] The tribunal hearing the evidence is entitled to disbelieve him and to base its decision on that assessment but is required to give reasons for a finding of lack of credibility in "clear and unmistakable terms", as stated in Armson. The tribunal has done that by stating that "the claimant has not discharged the onus on him to support his claim with credible evidence."
[39] The tribunal used the terms "unpersuasive" and "not trustworthy" to describe the evidence presented by the claimant concerning the alleged problems he has in India.
[40] The tribunal concluded that questions were not answered in a satisfactory manner in view of the education of the claimant and some discrepancies were left unexplained.
[41] 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 (Aguebor as applied in Mejia).
[42] In view of the explanations given by the tribunal on its finding of lack of credibility and the evidence before it, this Court cannot conclude to an unreasonable finding as to warrant its intervention.
[43] This conclusion also applies to the female applicant's application.
[44] The tribunal has clearly rejected the female applicant's claim.
[45] The tribunal in its decision clearly stated that the female claimant
| has not discharged the onus to support her claim with credible evidence. The claimant has never been part of or a member of a political organization in her country. |
The tribunal was convinced that "the claimant did not have a substantial subjective fear of persecution when she left her country".
Conclusion:
[46] For the reasons given in the foregoing, this application for judicial review shall be dismissed.
[47] Neither counsel suggested a serious question, so no question will be certified.
"Pierre Blais"
Judge
TORONTO, ONTARIO
March 25, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1232-98 |
| STYLE OF CAUSE: JASBIR SINGH BOPARAI |
DALBIR KAUR BOPARAI
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: WEDNESDAY, MARCH 24, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: BLAIS J.
DATED: THURSDAY, MARCH 25, 1999
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Ms. Lori Hendricks
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. E.
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990325
Docket: IMM-1232-98
Between:
JASBIR SINGH BOPARAI
DALBIR KAUR BOPARAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER