Date: 2002
Docket: IMM-5201-01
Ottawa, Ontario, the
Present: The Honourable Mr. Justice Pinard
Between:
MAVI SAUDAGAR SINGH
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision dated October 12, 2001, by the Convention Refugee Determination Division of the Immigration and Refugee Board, determining that the applicant is not a Convention refugee, is dismissed.
JUDGE
Certified true translation
S. Debbané, LLB
Date: 2002
Docket: IMM-5201-01
Neutral Citation: 2002 FCT 990
Between:
MAVI SAUDAGAR SINGH
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
This is an application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the IRB) dated
October 12, 2001, determining that the applicant is not a Convention refugee, as defined in subsection 2(1) of the Immigration Act, R.S.C., 1985, c. I-2.
The applicant is a citizen of India. He alleged that he was persecuted in India by reason of imputed political opinion because his brother is involved in the All India Sikh Student Federation and the Akali Dal Amritsar Mann Party (ADM).
The IRB denied the applicant refugee status, finding that he was not credible. In support of its decision, it gave the following reasons:
- Throughout the hearing, the applicant seemed passive and indifferent.
- The documentary evidence shows that the ADM does not seem to be targeted by the police.
- The letter from Ranjan Lakhanpal, a lawyer in Chandigarh, contradicts the applicant's testimony.
- The applicant testified that he had been tortured in 1998 and in 2000. However, a Canadian doctor stated in a letter that the allegations made by the applicant were not supported by any physical evidence.
- The applicant knew very little about important events that took place in India, such as the "Burail jail break case."
We should first recall that with respect to credibility, it is not for this Court to substitute itself for the IRB unless the party concerned can show that the IRB 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 (subsection 18.1(4) of the Federal Court Act, R.S.C., 1985, c. F-7).
In this case, after hearing counsel for the parties and reviewing the evidence, it seems to me that the inferences drawn by the IRB are based on a number of implausibilities and contradictions between the applicant's oral testimony and the documentary and medical evidence. It is true that a tribunal of that nature must consider explanations given and that credibility can only be challenged if the explanations are not very convincing (see Hue v. Canada (M.E.I.), [1988] F.C.J. No. 283 (C.A.) (QL)). However, in this case, the explanations provided by the applicant were taken into account but were simply not considered to be sufficient.
With respect to the documentary evidence, in the absence of clear and convincing evidence to the contrary, it must be presumed that the IRB considered all of the evidence (see Florea v. Minister of Employment and Immigration (June 11, 1993), A-1307-91 (F.C., Appeal)). Generally, the fact that the documentary evidence is not mentioned in the reasons is not fatal to its decision (Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317, at page 318 (F.C.A.)).
In this case, the IRB indicated explicitly in its reasons what the documentary and medical evidence in the record consisted of and stated that based on that evidence, it was possible for it to draw certain conclusions, such as the applicant's lack of credibility and lack of subjective fear. In the circumstances, the IRB's perception that the applicant was not credible effectively amounts to the finding that there was no credible evidence that could warrant his claim for refugee status. In Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, at page 244, the Federal Court of Appeal stated the following:
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.
For all of these reasons, I am of the opinion that the IRB discharged its duties without committing an error that was subject to review. Accordingly, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
Certified true translation
S. Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5201-01
STYLE OF CAUSE: MAVI SAUDAGAR SINGH v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 13, 2002
REASONS FOR ORDER OF: Pinard J.
DATED:
APPEARANCES:
Ethan Friedman FOR THE APPLICANT
Caroline Cloutier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ethan A. Friedman FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario