PRESENT: The Honourable Mr. Justice Gibson
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
GIBSON J.
INTRODUCTION
[1] The applicant is a Muslim citizen of India from the villageof Lasana in the State of Jammu and Kashmir. He alleges that he fled India on the 27th of March, 2002 and arrived in Canada the next day, having transited through the United States. Shortly after his arrival, he made a claim to Convention refugee or like protection in Canada. He based his claim on an alleged well-founded fear for his life at the hands of militants and the military.
[2] In a decision dated the 26th of January, 2005, the Refugee Protection Division (the "Board") of the Immigration and Refugee Board rejected the Applicant's claim for protection. The Applicant sought judicial review of that decision. These reasons follow the hearing of a portion of the Applicant's application for judicial review.
BACKGROUND
[3] The Applicant alleges that, during the course of an election campaign in December of 1999, he publicly criticized actions of security forces that forced Muslims to vote. He alleges that the security forces beat him, took him to their camp, forced him to work and released him after one day.
[4] The Applicant further alleges that, on the 10th of October, 2001, three militants took shelter at his house. The military apparently became aware of this fact and arrested the Applicant, beat him and only released him after 36 hours in detention.
[5] The Applicant further alleges that, after the rape of a Muslim woman on the 4th of February, 2002, he arranged for the participation of a group of persons in a protest rally. Further, the Applicant alleges that on the 6th of February, 2002, he observed a shop on fire while two soldiers exited from the shop carrying big bags. He alleges that he telephoned the fire brigade and the police. The police apparently took a statement from him and from the shopkeeper. The next day, he was warned by an army officer who beat him that he should remain silent. Despite the warning, the Applicant alleges that he supported a claim by the shopkeeper. Before the claim could be dealt with, in an encounter between Mujahedin supporters or members and the army, soldiers were killed or wounded and the shopkeeper was killed. Military personnel allegedly came to the Applicant's home in search of him. The Applicant was not present at his home. His father was arrested and beaten. The Applicant went into hiding and sent his wife and children into hiding in a different location. Shortly thereafter, the Applicant fled India.
THE DECISION UNDER REVIEW
[6] In its reasons for decision, the Board wrote:
The Refugee Protection Division ... does not believe that the claimant [here the Applicant] has given credible evidence as to incidents, which would place him at risk. It finds that [the Applicant] is not a Convention refugee and there is not a serious possibility that his return to India will subject him personally to torture or to a risk to his life or to a risk of cruel or unusual punishment.
[7] In support of the foregoing conclusion:
- the Board noted that the alleged beating and detention of the Applicant in the autumn of 1999 was not mentioned in a form completed and signed by the Applicant on the 2nd of April 2002 where he responded to a question as to whether he had ever been detained or in prison. The Applicant responded in the affirmative with respect to only one detention and beating, that which he alleged occurred in October, 2001. Apparently the same omission occurred when the Applicant was interviewed by an Immigration officer. The Applicant was asked by the Board for an explanation of these omissions. While the Applicant provided an explanation, the Board rejected it;
- the Applicant produced a letter from a lawyer dated the 9th of January, 2003, which date was well after his departure from India. The Board sought an explanation from the Applicant as to why he had not earlier consulted a lawyer, given his two alleged detentions before he left India. Once again, while the Applicant provided an explanation, the Board found the explanation implausible;
- the Board noted what it considered to be a discrepancy in two versions of the Applicant's story regarding the rape of a Muslim woman on the 4th of February, 2002. In one version, the woman was killed while in the other, the Applicant recounted that the woman "almost died". Once again, the Board rejected an explanation, in this case provided by counsel for the Applicant before the Board. The Board found the 4th of February, 2002, incident to be "fabricated";
- the Applicant was asked by the Board to explain why he was the one who reported the 6th of February, 2002 incident to the fire brigade and to police, rather than residents in the area of the fire. Once again, the Board rejected the Applicant's explanation and determined the incident of the 6th of February, 2002, to be fabricated;
- notes of the Applicant's interview with an Immigration officer earlier referred to, did not disclose any reference to the 9th of February, 2002 arrest, beating and detention of the Applicant's father. The Applicant once again provided an explanation and, once again, the Board rejected the explanation indicating that it concluded that the story of the Applicant's father's arrest was an "enrichment" to the Applicant's story that " ... adds to the tribunal's [here the Board's] finding that the entire claim of persecution is a fabrication";
- the Board noted that the Applicant provided no corroboration of the date on which he left India and of his travel to Canada through the United States. It chose to prefer documentary evidence before it from the U.S. Boarder Patrol indicating that it was unable to confirm the Applicant's travel through the United States on the 27th or 28th of March, 2002, despite the fact that it was provided with the Applicant's name, other names he might have used, his date and place of birth, his country of citizenship, the alleged port of entry into the United States, the airline and number of the flight on which he allegedly travelled and the seat number on that flight that he allegedly occupied;
- and finally, the Board noted that it had additional concerns with respect to matters such as the last addresses of the Applicant when he was allegedly in hiding in India preceding his departure, the absence of evidence of a summons or subpoena for the Applicant and the lack of evidence as to the date of termination of his employment.
THE ISSUES
[8] Procedural issues surrounding "reverse-order questioning" or the Chairperson's Guideline No. 7 were raised on behalf of the Applicant. Those issues were bifurcated from the substantive issues on this application for judicial review and were heard by a different judge. They will be the subject of separate reasons and a separate order. The remaining issues argued before me were presented on behalf of the Applicant in essentially the following terms:
- first, whether it was open to the Board to base its determination that the Applicant's claim should be rejected for want of credibility largely on omissions from the notes of an Immigration Officer who interviewed the Applicant, when those notes were compared with the Applicant's Personal Information Form narrative;
- secondly, whether it was open to the Board to engage in "gross speculation" as to the behaviour of the Applicant's family;
- and finally, whether it was open to the Board to find against the Applicant's credibility on, allegedly, a single supposed contradiction or "...on trivial and menial issues".
ANALYSIS
a) Standard of Review
[9] It was not in dispute before the Court that the Board's determination regarding the Applicant's credibility, and thus the well-foundedness of his claim, is a determination to which great deference should be given. Thus, the appropriate standard of review is patent unreasonableness. In Chowdhury v. Minister of Citizenship and Immigration[1], my colleague Justice Noël wrote at paragraph [12] of his reasons:
The decision of the RPD as to the Applicant's entitlement to refugee protection is primarily based on the credibility of his allegations. It is well established that the standard of review as to the assessment of credibility of an Applicant by the RPD is patent unreasonableness (see Thavarathinam v. Canada(Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at para. 10; Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.) at para. 4).
b) The Board's Credibility Finding
[10] Counsel for the Applicant urged that the Board erred in a reviewable manner against the standard of review of patent unreasonableness by relying on discrepancies between the Applicant's story as set out in the narrative to his Personal Information Form and the notes of the Immigration Officer who interviewed the Applicant. He referred the Court to Sawyer v. The Minister of Citizenship and Immigration[2] where my colleague Justice Dawson wrote at paragraphs [5] to [7]
of her reasons :
...The panel rejected this testimony because it did not accept that an immigration official would not record Mr. Sawyer's evidence.
However, the Minister's operations manual dealing with "Processing Claims for Protection in Canada" contains the following instructions to officers to whom a claim for refugee status is made:
Appropriate Questions
The officer should ask the claimant the standard questions on the refugee claim and the answers must be recorded. However, the officer should not ask the claimant to elaborate on the basis of the claim unless the information relates to admissibility and eligibility. It is not the officer's responsibility to determine the credibility of the claim for refugee protection.
...
In the face of this instruction it was in my respectful view, at least with respect to the evidence about mention of the photograph, patently unreasonable for the panel to reject summarily in the manner it did Mr. Sawyer's evidence that the officer told him that it was not necessary for him to give her his full story and this was why she did not record everything that he told her.
[emphasis added]
[11] The foregoing is of some direct application in the context of this claim. While the Applicant did not suggest that the Immigration Officer did not record everything that he told her, he did indicate to the Board, during his hearing, that he would have wished to tell the Immigration Officer more but she discouraged him by indicating that it was unnecessary for him to do so.
[12] I do not read Justice Dawson's reasons quoted above as standing for the proposition that an Immigration Officer's notes cannot be relied upon by the Board. Rather, I regard Justice Dawson's reasons as counselling the exercise of discretion in reliance on Immigration Officers' notes. In Parnian v. Canada(Minister of Citizenship and Immigration)[3], Justice Wetston wrote at paragraph 7 of his reasons:
The question as to whether port of entry notes are admissible before the Refugee Division has been dealt with by this Court in the decision of Saidur Rahman v. M.E.I.... In that case, much like in this instance, the Board admitted the port of entry notes [the equivalent of the Immigration Officer's notes here] and relied upon them to make an adverse finding of credibility based on a discrepancy between those notes and the applicant's PIF and oral testimony. ...
[one citation and some text omitted]
[13] Justice Wetston concluded at paragraph 10 of his reasons:
Since I have found that the port of entry notes were properly before the Board, and considering that the main credibility findings were based upon inconsistencies between those port of entry notes and the applicant's PIF, as well as his oral testimony, I am of the opinion that there is no basis upon which the Court can interfere with the credibility findings of the Board.
[14] More recently, my colleague Justice Kelen, in Yontem v. Canada(Minister of Citizenship and Immigration)[4], wrote at paragraphs 15 and 16 of his reasons:
In its reasons, the Board considered the explanation provided by the applicant but determined that the port of entry notes were nonetheless reliable. In my view, the Board did not commit a reviewable error in coming to this conclusion. It is well established that a Board may draw a negative inference from inconsistencies between statements made at the port of entry and the content of subsequent testimony.... In the present case, the Board acted appropriately by notifying the applicant that the port of entry notes were an issue and providing him with a reasonable opportunity to explain the inconsistency before it drew an adverse inference....
Moreover, if the applicant had wanted to challenge the accuracy of the port of entry notes, he could have subpoenaed both the immigration officer and the interpreter to testify at the hearing. ...
[Citations and some text omitted]
[15] In this matter, the Board did not rely exclusively or even primarily on discrepancies between the Immigration Officer's notes and other material or testimony before it in determining that the Applicant's whole story simply lacked the ring of truth. Further, I am satisfied that the concern expressed on behalf of the Applicant that the Immigration Officer's apparent imperfect command of English, the language in which her interview with the Applicant was conducted, was not in any sense fatal to the reliability of her notes. The reasons of the Board make it clear that the Applicant was provided with a reasonable opportunity to tell his story to the Board and to respond to the Board's concerns. Indeed, no denial of fairness in that regard was urged on behalf of the Applicant.
[16] Against the foregoing, taking into account the full range of credibility concerns identified by the Board none of which, and of greater importance, not all of which when taken together, amount to an over-zealous pursuit of perfection or overly-microscopic examination of the Applicant's claim, I am satisfied that the decision of the Board as to the Applicant's credibility and therefore as to the well-foundedness of his claim, was reasonably open to it. That is not to say that another panel or indeed applicant's counsel or this Court might not have reasonably reached a different decision. That is not the test. Against the standard of review of patent unreasonableness, I am simply satisfied that the Board's decision was open to it on the totality of the material that was before it.
CONCLUSION
[17] In the result, the portions of this application for judicial review that were here before the Court will be dismissed.
[18] At the close of hearing, counsel were consulted on the issue of certification of a question. Neither counsel recommended certification of a question. The Court itself is satisfied that no serious question of general importance that would be dispositive of the issues here before it arises. No question will be certified.
Ottawa, Ontario
April 10, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1144-05
STYLE OF CAUSE: MUHAMMAD SADIK QADRI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal,, Quebec
DATE OF HEARING: March 21, 2006
APPEARANCES:
| Dan M. Bohbot
|
|
| Suzanne Trudel
|
SOLICITORS OF RECORD:
| Dan M. Bohbot Lawyer, Montréal, Quebec
|