Date: 20010202
Docket: IMM-4330-99
OTTAWA, ONTARIO, THE 2ND DAY OF FEBRUARY, 2001
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
GURJIT SINGH SIDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
Marc Nadon
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20010202
Docket: IMM-4330-99
Citation: 2001 FCT 14
Between:
GURJIT SINGH SIDHU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] The applicant attacks a decision of the Refugee Division of the Immigration and Refugee Board (the "Refugee Division") rendered on July 29, 1999. The Refugee Division found that the applicant was not a Convention refugee.
[2] The applicant, born on February 4, 1967, is a citizen of India. He is claiming refugee status, alleging a well-founded fear of persecution in his country owing to his alleged political opinions and his membership in a particular social group. The applicant left his country on March 20, 1998 and arrived in Canada on April 1 of that year. He claimed refugee status the day of his arrival.
[3] The Refugee Division, after relating the relevant facts of the applicant's story, concluded that he was not credible. The Division's analysis leading to its finding of non-credibility is short and consequently I reproduce it in full:
Having analyzed all the evidence, both oral and written, the panel finds that the clamant is not credible.
The panel examined the claimant's allegations that he was a member of the Traffic police and that he was being persecuted by non-traffic police. The claimant omitted to mention this in his PIF and made the modification on the day of the hearing. This important omission is fundamental to the claim. The claimant's last minute modification is not enough, in the eyes of the panel, to re-establish his credibility. The courts have found that all relevant facts should be included in one's PIF. In addition, the evidence adduced during the hearing reinforces the questionablity of whether the claimant was actually a traffic officer. He was questioned about exhibits P-6 and P-7, documents attesting to his membership in the Chandgarh police force. When asked why there was no mention of his position as a traffic officer, he stated that everyone received generic-type documents. This explanation is squarely contradicted by exhibits A-2 and A-6.1. This documentary piece of evidence talks about the structure of police forces. Under the heading "State Level", we find the following:
In each state there is also a police unit in charge of traffic. Whereas the Indian traffic police in cities and large towns constitute independent police forces which report directly to the commissioners of police of their respective jurisdictions, in the rural areas the regular civil police are also responsible for traffic police duties.
The panel also questioned the claimant with respect to his period of detention in January 1998. He first said that there was no record of his detention or warrants against him. When questioned about exhibit P-9, stating that the police were after him pursuant to the Chandigarh Police Act, he answered that it was to complete the "paper work". This contradiction also undermines the claimant's credibility.
The panel also examined the plausibility of the incident which led to the claimant's arrest in January 1998 and his subsequent escape. The claimant lived in a three-floor apartment building with many other residents, the boy who was seen running from the building was not in the claimant's apartment or anywhere close to the apartment. The police questioned the residents and only the claimant was taken to the police station. Is this scenario plausible? The panel does not believe so, the Indian police have been known to round-up citizens and use forceful means to get what they want. The claimant's allegations hold no logic and are ouf of line with what this panel has seen in numerous other claims.
For all of the above reasons, the panel determines that the claimant, Mr. Gurjit Singh SIDHU, is not a "Convention refugee", as defined in section 2(1) of the Immigration Act.
[4] The application for judicial review raises two issues: the Minister's participation in the matter, and the finding of non-credibility.
A. The Minister's participation
[5] Sub-paragraph 69.1(5)(a)(ii) and paragraph 69.1(5)(b) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), and Rule 9 of the Convention Refugee Determination Division Rules (the "Rules"), SOR/93-45, are relevant and they read as follows:
| 69.1(5) Opportunity to be Heard - At the hearing of a person's claim to be a Convention refugee, the Refugee Division (a) shall give: [...] ii) a reasonable opportunity to present evidence and, if the Minister notifies the Refugee Division that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of this Act are raised by the claim, to question the person making the claim and other witnesses and make representations; and (b) may, if it considers it appropriate to do so, give the Minister a reasonable opportunity to question the person making the claim and any other witnesses and to make representations concerning the claim. *********** 9. (1) Where the Minister informs the Refugee Division pursuant to subparagraph 69.1(5)(a)(ii) of the Act that the Minister is of the opinion that matters involving section E or F of Article 1 of the Convention or subsection 2(2) of the Act are raised by the claim, the Minister shall specify the grounds and the parts of sections e or F or of subsection 2(2) that in the opinion of the Minister are relevant to the claim and shall set out briefly the law and facts on which the Minister relies. (2) Where, before the commencement of a hearing, the refugee hearing officer or the Refugee Division is of the opinion that a claim before the Refugee Division might involve Section E or F of Article 1 of the Convention or subsection 2(2) of the Act, the refugee hearing officer shall forthwith notify the Minister and provide the Minister with such information as is necessary. (3) Where, during a hearing, the refugee hearing officer or a member is of the opinion that a claim before the Refugee Division might involve section E or F of Article 1 of the convention or subsection 2(2) of the Act, the refugee hearing officer or the member shall so inform the presiding member and, if the presiding member so directs, the refugee hearing officer shall forthwith notify the minister and provide the Minister with such information as is necessary. (4) the refugee hearing officer shall serve the person concerned forthwith with a copy of all written information that the refugee hearing officer provides to the Minister pursuant to subrules (2) and (3). |
69.1(5) Droit de se faire entendre - À l'audience, la section du statut: (a) est tenue de donner: [...] ii) au ministre, la possibilité de produire des éléments de preuve, d'interroger l'intéressé ou tout autre témoin et de présenter des observations, ces deux derniers droits n'étant toutefois accordés au ministre que s'il l'informe qu'à son avis, la revendication met en cause la Section E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la présente loi; (b) peut, dans tous les cas, si elle l'estime indiqué, autoriser le ministre à interroger l'intéressé ou tout autre témoin et à présenter des observations. *********** 9. (1) Lorsque le ministre, conformément au sous-alinéa 69.1(5)(a)(ii) de la Loi, informe la section du statut qu'à son avis la revendication met en cause les section E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la Loi, il fait état des motifs et des éléments des sections E ou F ou du paragraphe 2(2) qui, selon lui, sont pertinents et expose brièvement le droit et les faits sur lesquels il s'appuie. (2) Lorsque, avant le début d'une audience, l'agent d'audience ou la section du statut est d'avis qu'une revendication dont elle est saisie pourrait mettre en cause les sections E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la Loi, l'agent d'audience en informe sans délai le ministre et lui fournit les renseignements nécessaires. (3) Lorsque, au cours d'une audience, l'agent d'audience ou un membre est d'avis qu'une revendication dont est saisie la section du statut pourrait mettre en cause les sections E ou F de l'article premier de la Convention ou le paragraphe 2(2) de la Loi, il en informe le président de l'audience et, si ce dernier l'ordonne, l'agent d'audience en informe sans délai le ministre et lui fournit les renseignements nécessaires. (4) L'agent d'audience signifie sans délai à l'intéressé une copie de tous les renseignements écrits qu'il a fournis au ministre conformément aux paragraphes (2) et (3). |
|
[6] The applicant's submission concerning the first point appears in paragraphs 1 to 7 of his memorandum, which read as follows:
[Translation]
1. First, it must be observed that the Minister's representative explained why he was present:
"The reason that I'm present was to question the claimant regarding to [sic] the possibility of being accomplice to crimes against humanity. And which of course was requested by the Panel. (...)
2. Thus, even before the commencement of this hearing, the panel had informed the Minister or his representative of the possibility that this claim might raise some issues in relation to crimes against humanity committed by the police forces to which the applicant belonged;
3. It is surprising, to say the least, that the Panel requested the Minister's presence and that nothing was said to this effect in the presence of the applicant;
4. This rather special procedure, to say the least, is also enhanced [sic] by the fact that the panel held a pre-hearing conference during the hearing without the presence of the applicant and without his consent;
"... but before we start to hear this claim on it's [sic] merits, we will have a pre-hearing conference. So I would ask, uh, the claimant to step outside for a few minutes. Thank you Mister and Maître.
Everyone is back from the hearing, we're back on record. After havint the uh, after having the pre-hearing conference. With all the counsels involved. We will be proceeding now with this claim."
5. We know nothing about what was said at this conference. No written record was produced. No information was conveyed directly from the panel to the applicant to inform him of the content of this conference that had been held without him;
6. As can be seen, the panel had, even before commencing the hearing on the merits, an idea that this claim could be the object of an exclusion clause for complicity in some crimes against humanity;
7. There was no such finding of "complicity in crimes against humanity" against the applicant, but the panel nevertheless already had a biased opinion on this claim. The panel, as we are going to demonstrate, contented itself with reaching an overall finding of non-credibility;
[7] As the respondent notes, the applicant relies on a phrase by the Minister's representative during the hearing of the claim. This phrase is found at page 459[1] of the panel's record. Here is what the Minister's representative said:
The reason why I'm present was to question the claimant pertaining to a possibility of having accomplished crimes against humanity. My presence was requested by the panel.
Knowing the burden that the Minister's Representative has concerning crimes against humanity, I have no observations to make on that level; I don't think it's possible for us to meet that burden of proof.
I'd just like to indicate that when I asked the claimant if he has any knowledge of torture or arbitrary arrests perpetrated by the Chandighar police, he indicated no knowledge of that.
[8] The applicant submits that the panel had unlawfully, on its own initiative, invited the Minister's representative to intervene in a matter that might involve the exclusion for crimes against humanity clause.
[9] It seems clear to me, from reading the relevant statutory provisions, and more particularly sub-rule 9(2) of the Rules, that the refugee hearing officer has a duty to inform the Minister when, in his opinion, a claim before the Refugee Division involves sections E or F of article 1of the Convention or subsection 2(2) of the Act. In this instance, Dianne Tordorf, the hearing officer, wrote to the Minister's representative on January 7, 1999, as follows:
Please find enclosed the Personal Information Form and Exhibits for the above-mentioned file. According to his PIF, the claimant was a member of the police force in Punjab.
Would you advise us as to the possibility that one of your officers may intervene in this matter as soon as possible. A hearing date is not yet scheduled, but we would appreciate knowing your intentions by January 30.
If you require any further information, please do not hesitate to contact the undersigned.
[10] This letter doubtless results from a reading of the claimant's Personal Information Form ("PIF") and in particular paragraphs 2 and 3 of his reply to question 37, which read as follows:
2. Since April 1987, I have been honestly serving the Chandigarh police services. I have never lowered down myself to inhuman indulgences because of which the police force is having a bad reputation.
3. Though I suffered indiscrimination [sic] as my promotions were delayed but I did not associate myself with crimes against human beings. Despite all this, I was leading a happy life with my wife and children in Chandigarh.
[11] In view of subsection 9(2) of the Rules, I can only conclude that Ms. Tordorf, in writing to the Minister's representative, was simply carrying out her duty. I note in passing that a copy of Ms. Tordorf's letter to the Minister's representative was sent to the applicant's lawyer. It should also be noted that the Minister's notice manifesting his intention to participate in the claimant's case, pursuant to sub-paragraph 69.1(5)(a)(ii) of the Act, was sent to the Refugee Division as well as to the applicant's lawyer.
[12] The applicant, in order to support his submissions on this first question, and more particularly his submission that the Refugee Division had a biased opinion of the applicant's claim, submits that the Refugee Division held a pre-hearing conference "during the hearing without the presence of the applicant and without his consent". This argument is without any doubt unfounded. As the respondent notes, the pre-hearing conference was held at the express request of the the applicant's counsel and in his presence. Here is what the evidence discloses, at pages 407 and 408[2] of the panel's record:
BY PRESIDING MEMBER (TO INTERPRETER)
- Mr. Chauhan[3], from you we've received Exhibits P1 to P16.
Q. Do you have anything you'd like to add this afternoon in terms of exhibits? P1 is the Personal Information Form of the Claimant. Do you have any modifications or changes you'd like to bring at this time?
A. Yes, sir. First of all, I would like to say before the hearing starts, I would like to have the pre-conference; then we'll ...
- Let's go through the modifications and the formalities ...
A. Yes, sir.
- ... and then we'll have a pre-conference before we actually start on the merits. Okay?
A. That's okay. ...
[13] Furthermore, as the evidence at page 412[4] of the panel record demonstrates, the applicant's counsel was present during the pre-hearing conference. The evidence discloses this:
BY PRESIDING MEMBER
- Everyone is back into the hearing room, and we're back on record after having a pre-hearing conference with all the counsels involved. We will be proceeding with this claim, and it has been agreed upon by everyone that Maître Gervais, the Minister's Representative, will start with his questions. And then we'll take it from there.
[14] Consequently, it is apparent on the very face of the record that the applicant's submissions are unfounded. The applicant seems to be objecting, in fact, to the Minister's participation in the case. I am in full agreement with the respondent's submission, in paragraph 12 of its supplementary memorandum:
[Translation] 12. During hearings of the Board's Refugee Division the Minister is usually not represented other than in the specific case in which he decides to avail himself of subsection 69.1(5) of the Act. If no one informed the Minister, it would be hard for him to learn that his exceptional powers under subsection 69.1(5) of the Act could be exercised.
[15] Contrary to the applicant's submissions, it is not the panel but Ms. Tordorf, the refugee hearing officer, who alerted the Minister's representative to the possible existence of crimes against humanity.
[16] The applicant's submission that the Refugee Division had, even before the commencement of the hearing, a biased opinion concerning the applicant's claim is not only erroneous but completely frivolous. In my opinion, it is unreasonable to suggest, as the applicant does, that informing the Minister of circumstances that might possibly justify his intervention, constitutes an indication of bias on the part of the Refugee Division. The applicant's first argument is therefore rejected.
B. The finding of non-credibility
[17] The second question raised by the applicant is the finding of non-credibility by the Refugee Division. The Division concluded that the applicant lacked credibility because he failed to mention in his PIF that he was part of the road traffic division of the Chandigarh police. In the opinion of the Refugee Division, this omission "is fundamental to the claim". In short, the Division cannot understand why, and therefore accept that the applicant failed to indicate in his PIF that his duties within the Chandigarh police force were limited to traffic control.
[18] Like the Refugee Division, I am unable to understand how the applicant could have forgotten to indicate in his PIF that he was performing duties solely within the traffic division. Above all, considering the fact that the applicant, in paragraphs 2 and 3 of his reply to question 37 of his PIF, took the trouble to distance himself from the Chandigarh police in relation to some crimes against humanity. If the applicant had stated that he was assigned only to traffic, he would not have had to distance himself from the criminal activities of the regular police.
[19] As the respondent points out, it is the fact that he amended his account on the day of the hearing that sullied the applicant's credibility. Accordingly, I am unable to conclude that the Refugee Division erred on this point.
[20] As to exhibits P-11 and P-14, these were filed on July 5, 1999, three days before the hearing of July 8. In view of the late filing of these exhibits, and the fact that the applicant failed prior to July 8, 1999 to mention that his responsibilities were limited to traffic control, I am unable to conclude that the Refugee Division erred in assigning no importance to exhibits P-11 and P-14.[5]
[21] In regard to the other reasons advanced by the applicant concerning the finding of non-credibility, I am also of the opinion that the Refugee Division committed no error that would warrant my intervention. In the first place, the Refugee Division's finding in relation to exhibit P-9 is not at all unreasonable given the evidence on the record. The Refugee Division could in my opinion see a contradiction in the fact that the applicant had testified about the lack of evidence concerning his detention in January 1998 and the fact that he had also testified that he was being sought under the Chandigarh Police Act.
[22] As to the arrest in January 1998, the Refugee Division concluded that the applicant's account was improbable. An attentive reading of the transcript of the applicant's testimony concerning his arrest on January 20, 1998[6] demonstrates that the Refugee Division did not err in finding the account improbable. The numerous questions of the Division and the replies given by the applicant readily convince the reader of the merits of the Division's conclusion.
[23] For all these reasons, the application for judicial review will be dismissed.
Marc Nadon
J.
OTTAWA, Ontario
February 2, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-4330-99
STYLE: GURJIT SINGH SIDHU v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 10, 2000
REASONS FOR ORDER OF NADON, J.
DATED: February 2, 2001
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
[1] At page 53 of the transcript of the evidence on July 8, 2000.
[2] Pages 1 and 2 of the transcript of the evidence of July 8, 2000.
[3] Claimant's counsel.
[4] Page 6 of the transcript of the evidence of July 8, 2000.
[5] In questions 18, 19 and 37 of his PIF, the applicant states that he is a member of the Chandigarh police, but nowhere does he state that his duties were performed solely in regard to traffic control.
[6] Panel record, pages 429 to 445 (Transcript, pages 33-39).