Docket: IMM-3160-04
Citation: 2005 FC 35
Ottawa, Ontario, the 18th day of January 2005
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
MOHINDER PAUL SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] To raise the spector of bias is to sound an alarm to a state of alert. Therefore, a reasonable apprehension of bias must be raised at the first reasonable opportunity during the hearing.
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 February 27, 2004, dismissed the Applicant's claim for "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. Mohinder Paul Singh, alleges a well-founded fear of persecution based on his membership in a particular social group and on his perceived political opinion.
[4] Mr. Mohinder Paul Singh was working as a real estate agent for a company called Karwal. In 2001, he rented a house to someone introduced himself as a Hindu priest. On June 13, 2001, having found arms and ammunitions in the house which he rented to the "Hindu priest", the police arrested him for having assisted militants. Mr. Mohinder Paul Singh was questioned in regard to the militants, tortured and subsequently released through the intervention of influential "individuals" and the payment of a bribe. On April 6, 2002, Mr. Mohinder Paul Singh was arrested a second time as militants from Kashmir, together with Sikhs militants, were lurking in the region. He was again tortured and subsequently released two days later, further to the help of influential individuals and after payment of a bribe. In the first week of October 2002, the police came to Mr. Mohinder Paul Singh's house, during which time he was absent. The police threatened his wife and ordered her to have him present himself to the police station. They alleged that Muslim and Sikh militants were planning attacks to bomb in Punjab and in New Delhi. The police suspected Mr. Mohinder Paul Singh of helping the militants transport weapons. Having been informed of his alleged, precarious situation, Mr. Mohinder Paul Singh, further to discussions with his family, decided to leave the Punjab. He travelled to Haryana to his parents-in-law's residence where he learned that the police had returned to his home. Mr. Mohinder Paul Singh fled India with the help of a smuggler.
DECISION UNDER REVIEW
[5] The Board concluded that Mr. Mohinder Paul Singh was not credible and listed several reasons for that finding.
ISSUES
[6] 1. Was it patently unreasonable for the Board to conclude the Applicant was not credible?
2. Did the Applicant have a fair hearing before the Board?
ANALYSIS
1. Was it patently unreasonable for the Board to conclude the Applicant was not credible?
[7] 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] Mohinder Paul Singh v. Canada (Minister of Citizenship and Immigration)[4]].
[8] As it appears from the decision, the Board noted that Mr. Mohinder Paul Singh's identity documents were problematic since they did not indicate the same date of birth. Indeed, on his voter's card, it indicated that Mr. Mohinder Paul Singh was 39 years old on January 1, 1994. However, the other documents filed reveal that Mr. Mohinder Paul Singh's date of birth is December 25, 1959, so he would have been 34 on January 1, 1994. Confronted by the Board with this inconsistency, Mr. Mohinder Paul Singh explained that it was an error. However, this explanation did not satisfy the Board since it is Mr. Mohinder Paul Singh himself who gave his age for the issuance of his voter's card. It was implausible that Mr. Mohinder Paul Singh would have made a mistake of 5 years about his own age. The Court notes that the Board did not state whether it believed Mr. Mohinder Paul Singh had established his identity or not - which, in and of itself, would not constitute a determinate error, if there were other reasons which would lead to the rejection of the claim. Nevertheless, the inconsistency did affect the credibility of Mr. Mohinder Paul Singh.
[9] The Board found contradictions between Mr. Mohinder Paul Singh's testimony and his Personal Information Form (PIF). In his PIF, Mr. Mohinder Paul Singh explained that the police had arrested a certain number of terrorists and one of them had denounced him during his interrogation. Following this denunciation, the police arrested Mr. Mohinder Paul Singh; however, during the hearing, the Applicant testified that it was subsequent to his employer's denunciation that the police had arrested him. Confronted with this contradiction, Mr. Mohinder Paul Singh gave no explanation. Mr. Mohinder Paul Singh considered this peripheral his story but the Board did not agree, as he based his claim on his having rented a house, unbeknownst to him, to a terrorist, subsequent to which he was arrested and detained. The person who denounced him is significant to this case.
[10] The Board also expressed serious doubts in respect of the reasons the police would have arrested Mr. Mohinder Paul Singh. As Mr. Mohinder Paul Singh testified that his employer and the owner of the house had not been arrested. As Mr. Mohinder Paul Singh did not provide any explanations in that regard, it remains problematic.
[11] Also, when the Board asked Mr. Mohinder Paul Singh why he continued to work for his employer who had denounced him to the police, Mr. Mohinder Paul Singh testified that he stopped working for this employer after his release. This response contradicted the statement he had made in his PIF. Confronted by the Board with this contradiction, Mr. Mohinder Paul Singh did not remember whether he had stopped working on June 13, 2001, in April 2002 or in October 2002. He again specified that that was peripheral to his story. The Court does not agree with Mr. Mohinder Paul Singh. As clearly stated by the Board, the denunciation by the employer led to Mr. Mohinder Paul Singh's detention and severe torture.
[12] Furthermore, the Board made a negative inference in regard to Mr. Mohinder Paul Singh's credibility as he was unable to provide any evidence that he, in fact, was still in India on March 17, 2003 and had left that day for Canada. It was open to the Board to take into account the lack of appropriate travel documents by Mr. Mohinder Paul Singh, such as his passport and plane tickets, when assessing his credibility [Elazi v. Canada (Minister of Citizenship and Immigration)[5] and Museghe v. Canada (Minister of Citizenship and Immigration)[6]].
[13] The Board gave no weight to the medical certificate nor the medical report filed by Mr. Mohinder Paul Singh to corroborate his allegation of torture. It was entitled to do so and explained why it did. The medical certificate states that a doctor treated Mr. Mohinder Paul Singh in June 2001 and in April 2002 for lacerations on his buttocks and multiple contusions on his back and thighs, also swelling, pain permeating his entire body and restricted mobility. The medical report states that Mr. Mohinder Paul Singh has various scars and experiences pain in certain parts of his body. In its reasons, the Board explained that since it had found Mr. Mohinder Paul Singh not to be credible in respect of his arrest and torture by the police, the medical documents would be given no weight [Danailov v. Canada (Minister of Citizenship and Immigration)[7] and Sahi v. Canada (Minister of Citizenship and Immigration)[8]].
[14] Finally, Mr. Mohinder Paul Singh argues that the Board failed to take into account the socio-political situation in India. As described in the documentary evidence entitled "India. : Break the cycle of impunity and torture in Punjab". Furthermore, Mr. Mohinder Paul Singh's particular claim cannot be directly deducted from documentation which is general in nature. A refugee claimant must establish that a credible link exists between his own personal predicament and the general situation in his country of origin [Rahaman v. Canada (Minister of Citizenship and Immigration)[9] and Canada (Secretary of State) v. Jules[10]]. In the present case, as Mr. Mohinder Paul Singh's story was found to lack credibility and no such link was established.
[15] The Court concludes that the Board's findings with respect to the Applicant's lack of credibility are not patently unreasonable.
2. Did the Applicant have a fair hearing before the Board?
[16] Mr. Mohinder Paul Singh argues that the Board did not approach his hearing with an open mind since it interrupted and questioned him constantly during the hearing. He also alleges that he was never asked by anyone in respect of having his hearing in French. Finally, he alleges that the interpreter was incapable of speaking Punjabi well.
[17] There is no indication that Mr. Mohinder Paul Singh raised these concerns. It is only now, at the application for judicial review that he does so.
[18] The jurisprudence is clear. The failure to raise an allegation of a reasonable apprehension of bias at the earliest opportunity forecloses the possibility of raising such an argument subsequently before this Court. In Hernandez v. Canada (Minister of Citizenship and Immigration),[11] Justice Pinard, citing case law from this Court, concludes that the first reasonable opportunity was at the Board hearing:
The claimant's argument based on a reasonable apprehension of bias must be dismissed on the basis that the claimant should have raised this point at the first reasonable opportunity, namely at the hearing before the Refugee Division.
Consequently, Mr. Mohinder Paul Singh's course of conduct before the Board constituted an implied waiver of any assertion of a reasonable apprehension of bias on the part of the Board and that of a denial of a fair hearing.
[19] Moreover, it must be noted that allegations of impartiality are very serious and must be substantiated (Sawridge Band v. Canada).[12] They cannot simply rest on pure allegations, perceptions or impressions (Miglin v. Miglin).[13] Consequently, Mr. Mohinder Paul Singh's allegations and impressions contained in his affidavit and memorandum as well as his analysis of the transcript are insufficient to establish an apprehension of bias. In reading the transcript in complete context, the Court, having taken full cognizance of it, cannot find any such bias. Board members have the right to ask questions and examine refugee claimants as the Board did in this case.
[20] Regarding the alleged difficulty with the quality of the interpretation, the Federal Court of Appeal found in Mohammadian v. Canada (Minister of Citizenship and Immigration)[14] that the refugee claimant had waived his right to invoke the inadequacy of interpretation when he failed to act at the earliest possible opportunity, which was before the Board. Consequently, since Mr. Mohinder Paul Singh did not formally raise complaints about the quality of the interpretation, nor did he make a request for a new interpreter, but instead chose to do nothing despite his concerns, his course of conduct before the Board constituted an implied waiver.
[21] Mr. Mohinder Paul Singh did not establish that he was denied a fair hearing.
CONCLUSION
[22] 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-3160-04
STYLE OF CAUSE: MOHINDER PAUL SINGH
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. Stewart Istvanffy FOR THE APPLICANT
Ms. Suzon Létourneau FOR THE RESPONDENT
SOLICITORS OF RECORD:
STEWART ISTVANFFY 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] F.C.J. No. 212 (F.C.T.D.) (QL) at paragraphs 12-19.
[6]2001 FCTD 1117, [2001] F.C.J. No. 1539 (QL)..
[7][1993] F.C.J. No. 1019 (F.C.T.D.) (QL) at paragraph 2.
[8]2001 FCT 527, [2001] F.C.J. No. 805 (QL) at paragraph 19.
[9]2002 FCA 89, [2002] 3 F.C. 537 (QL) at paragraph 29.
[10](1994) 84 F.T.R. 161 (F.C.T.D.), [1994] F.C.J. No. 835 (QL) at paragraph 24.
[11][1999] F.C.J. No. 607 (F.C.T.D.) (QL) at paragraph 6. On this point, see also Ranganathan v. Canada (Minister of Citizenship and Immigration) ,2003 FC 1367, [2003] F.C.J. No. 1741 (QL).
[12][1997] 3 F.C. 580 (F.C.A.), [1997] F.C.J. No. 794 (QL) at pages 588-589.
[13][2003] 1 S.C.R. 303 [2003] S.C.J. No. 21 (QL) at paragraph 26.
[14][2000] 3 F.C. 371 (C.A.), [2000] F.C.J. No. 309 (QL) at paragraph 27.