Date: 20040322
Docket: IMM-1371-03
Citation: 2004 FC 426
Ottawa, Ontario, the 22nd day of March 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
JARNAIL SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review, under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (panel), dated February 7, 2003. In this decision, the panel determined that the applicant was not a Convention refugee or a person in need of protection.
ISSUE
[2] The issue can be stated as follows: Are the findings of the panel, particularly the applicant's lack of credibility, patently unreasonable?
[3] For the following reasons, I answer this question in the negative and I will therefore dismiss the application for judicial review.
FACTS
[4] The applicant is a citizen of India and a native of the State of Punjab. His fear of persecution is based on his perceived political opinion. He fears persecution by the Indian police who suspect that he is associated with Kashmir militants.
[5] In November 1999, the applicant began to drive a taxi belonging to Gurbachan Singh. On February 12, 2001, while driving two passengers to New Delhi, he was stopped. The passengers fled, whereas he was taken to a police station where he was beaten and accused of transporting militants. On February 14, he was released upon payment of a bribe and on condition that he report again on April 1.
[6] When he returned to the station on that date, the police informed him that the two passengers had been arrested and that they were Jammu-Kashmir militants. The applicant was again detained for three days. He was accused of being associated with the militants. He was interrogated, beaten and tortured. The police fingerprinted him and photographed him and made him sign a blank sheet of paper. The applicant was released after a village councillor intervened, upon payment of a bribe and on the condition that he report on May 1, 2001, with information about the militant organization.
[7] On April 25, 2001, the applicant fled to his uncle's home in Haryana. He stayed at the home of a friend of his uncle's for two weeks. On May 2, 2001, the police raided the applicant's home. They arrested and beat his father, who finally admitted where the applicant was hiding. The police raided his uncle's home on May 3 and May 15. On May 16, the applicant fled to New Delhi. He arrived in Canada on July 14, 2001, and made a claim for refugee protection on July 17, 2001.
ANALYSIS
[8] First, it would be appropriate to point out that questions of pure fact, like the ones in this case, are subject to the standard of patent unreasonableness on judicial review. This is what the Federal Court of Appeal states in Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, (2003) 27 Imm. L.R. (3d) 1 (F.C.A.), using the following comments of Lemieux J. in Shrestha v. Canada (Minister of Citizenship and Immigration), 2002 FCT 887, (2002) 23 Imm. L.R. (3d) 46 (F.C.T.D.), at paragraphs 10 and 11:
[10] If the tribunal's decision turns on whether the Applicant knew the nature of the activities of the UPF, his participation in the organization, his leadership role, and his financial contribution to the Party, these are findings of fact. In accordance with paragraph 18.1(4)(d) of the Federal Court Act, the Court will not intervene unless the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, and this is equivalent to a patently unreasonable conclusion.
[11] In Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at page 844, L'Heureux-Dubé J. for the Supreme Court of Canada wrote at paragraph 85:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one [ . . . ]. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision [ . . . ].
(Emphasis added.)
[9] I think that it is worthwhile to repeat the comments of the panel at page 2 of its decision, which already give a general idea about the applicant's credibility: "The claimant's testimony was sketchy, hesitant, and evasive. The claimant tried to recite his written statements, but avoided responding directly to the questions asked. He had to be prompted with leading questions to give additional details adjusting his testimony".
[10] Let us now analyse the different elements raised by the parties, i.e.:
(1) the circumstances of the applicant's detention and release;
(2) the documentary evidence;
(3) the reference to the fact that the applicant was a taxi driver;
(4) the letter from the taxi union;
(5) the medical reports; and
(6) the journey to Canada.
Circumstances of detention and release
[11] The applicant challenges the finding of implausibility drawn by the panel because the applicant had been arrested, then released by the police, at page 5 of the decision: "It seems implausible, in the panel's opinion, that the police would release the claimant from custody without questioning him about his personal involvement and activities or to what organization he belonged if they suspected him of being involved with militants. As well, it seemed rather implausible that the police would release him from custody after two or three days without charges and with only a general condition to bring them complete information about the militants group". According to the applicant, another possible interpretation of the circumstances of the detention and release is that, if the police had not really questioned him about his activities and his membership in an organization, it is because the police did not consider him to be an activist or a militant. Even if I do not consider the interpretation given by the panel as being the only explanation possible, I am still unable to find that its determination is patently unreasonable. The other elements analysed by the panel militate in favour of the applicant's lack of credibility.
Documentary evidence
[12] According to the applicant, the panel did not consider the documentary evidence on the conduct of the police in similar situations. The applicant maintains that all of the documentary evidence that he provided shows the depravity and corruption of the Punjab police. According to one of the cited passages (IND34468.EX, June 12, 2000): "Jaspal Singh (retired judge at Delhi High Court) informed the delegation that conditions in Punjab have improved but people are still complaining that the police are raising false cases although the number of such complaints are smaller than previously". This demonstrates that the police corruption, although it exists, has diminished considerably. The panel, at pages 5 and 6 of its decision, took this police corruption into consideration, while also indicating the fact that this corruption had diminished: "Throughout, the documentation states that the political situation in Punjab has returned to normality, and even though human rights violations continue to exist in India, the human rights situation in Punjab has generally improved".
Taxi Driver
[13] In his story, the applicant claims that the authorities suspected him of being tied to the militants because he had been arrested while driving two of them in his taxi. The applicant did not indicate that he had been a taxi driver in his immigration form when he claimed refugee protection, nor in his answer to question 18 of his PIF. However, at question 37 of his PIF, it is stated that he was a taxi driver. Sarpanch's affidavit also specifies this, and his driver's licence, filed in evidence, also states that he was a taxi driver. The panel considered the clarifications provided for the documents at the hearing, but it was entitled to draw a negative inference about the late presentation of this information. It is well established that the panel may take into account the content of the PIF before and after it has been changed and that it may also draw negative inferences about the claimant's credibility, if matters it considered important were added to the PIF by amendments made at the hearing (Kutuk v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1754 (F.C.T.D.) (QL) at paragraph 9; Ovais v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1702, (F.C.T.D.) (QL) at paragraph 4).
Letter from the taxi union
[14] The letter from the taxi union, filed on the day of the hearing and dated December 5, 2002, had no probative value for the reasons listed on pages 3 and 4 of the panel's decision. These reasons are well supported, there are a number of them, and therefore they are not patently unreasonable.
Medical reports
[15] The applicant alleges that the panel, at the very least, should have recognized that the medical evidence, whose authenticity is not contested, corroborated the applicant's allegations with respect to the torture suffered at the hands of the police in April 2001. It is true that the reports were not disputed, but they were not given any probative value because the documents did not establish the cause of the injuries sustained by the applicant. There was no connection made between these injuries and the mistreatment of which the applicant says he was a victim. A medical certificate that reports certain injuries does not prove that they are the result of the persecution described by an applicant. This is what is stated by the panel at page 7 of its decision: "With regard to the medical report and the Radiology report, the panel does not dispute their findings, however no probative value was given to these reports as to the causes of the findings, in view of the claimant's overall lack of credibility" (emphasis added). This finding is entirely within the panel's jurisdiction.
Journey to Canada
[16] In the applicant's affidavit in support of his application for judicial review, he states that the panel should not have reproached him for failing to make a refugee claim in Germany because he was in transit. Further, he explains that he did not make a refugee claim as soon as he arrived in Canada because he arrived on a Saturday. I agree with the respondent that the panel already heard these explanations at the hearing but that they were not found to be satisfactory because they did not explain why the applicant did not claim refugee protection at the first opportunity. The panel was also negatively influenced by the fact that the applicant did not have his passport or his plane ticket with him. His explanation to the effect that the officer took the documents was not found to be satisfactory and I am not prepared to say that this determination was patently unreasonable.
CONCLUSION
[17] None of the elements analyzed above lead me to find that the panel drew a conclusion of lack of credibility that was patently unreasonable. Accordingly, the application is dismissed.
[18] The parties did not propose a serious question of general importance to be certified. Therefore, no question will be certified.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No serious question of general importance is certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1371-03
STYLE OF CAUSE: JARNAIL SINGH
v.
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 11, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS: March 22, 2004
APPEARANCES:
Michel LeBrun FOR THE APPLICANT
Claudia Gagnon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel LeBrun FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec