Montréal, Quebec, November 16, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board), dated April 7, 2005, in which Mr. Sukhdev Singh (the applicant) was determined not to be a Convention refugee nor person in need of protection pursuant to sections 96 and 97 respectively of the Act.
FACTS
[2] The applicant is a 55-year-old citizen of India who is retired from the army where he served as a Junior Commission Officer from 1970 to 2000. The applicant is a Sikh who, before arriving in Canada, lived with his family in the village of Bhatnura Lubana in the State of Punjab.
[3] The applicant alleges that his brother Gurdial was a friend of Didar Singh, a well-known smuggler and supplier of arms to militants and gangsters. Upon his arrest in 2003, Didar informed the police that he had hidden arms with the applicant's brother.
[4] The police came looking for the applicant's brother, but when he could not be located, they arrested the applicant instead. The applicant was subsequently detained and tortured by the police. He told the police that his brother was at his cousin's house in Ambala. The police travelled to Ambala and arrested Gurdial.
[5] The applicant was released with the help of members of the village council and "influential people", but his brother remained in custody. On January 24, 2004, Gurdial was found dead.
[6] On March 4, 2004, the applicant consulted a lawyer in order to press charges against the police for Gurdial's death. On March 5, 2004, the applicant was arrested and tortured for a second time. He was once again released with the help of "influential people". He was told not to press charges against the police and to report to the police station once a month.
[7] The applicant obtained a Canadian visitor visa and left India for Canada on August 27, 2004 and claimed refugee protection on September 6, 2004.
ISSUES
1. Did the Board err in its finding that the applicant was not credible?
2. Did the Board err in its conclusions regarding state protection?
ANALYSIS
1. Did the Board err in its finding that the applicant was not credible?
[8] The main arguments presented by the applicant attempt to put into question the Board's finding regarding credibility. As has been stated on numerous occasions, the level of deference accorded to decisions of credibility is exceedingly high. This was the position adopted by Justice de Montigny in Anthonimuthu v. Canada(Minister of Citizenship and Immigration), 2005 FC 141, [2005] F.C.J. No. 162, when he stated the following at paragraph 45:
Turning first to the credibility issue, it is trite to say that decisions of the Board which are based on credibility findings are to be accorded a high level of deference given that the Board has the benefit of hearing the testimony of witnesses. As indicated in a number of decisions, credibility determinations lie within "the heartland of the discretion of triers of fact" and cannot be overturned unless they are perverse, capricious or based on erroneous findings of facts (Aguebor v. Minister of Employment & Immigration, [1993] F.C.J. no 732 (F.C.A.); Siad v. Canada (Secretary of State), [1997] 1 F.C. 608 (F.C.A.); Oyebade v. Canada (Minister of Citizenship & Immigration), [2001] F.C.J. no 1113; Sivanathan v. Canada (Minister of Citizenship & Immigration), [2003] F.C.J. no 662 (F.C.).
[9] The Board is entitled to conclude that an applicant is not credible based solely on implausibilities in his or her evidence, so long as its inferences are not unreasonable and are set out in "clear and unmistakable terms" (Singh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.T. 1272; [2002] F.C.J. No. 1724 at paragraph 6).
[10] Contrary to the submissions of the applicant, I find that it was not unreasonable for the Board to believe it highly unlikely that a well respected retired Junior Officer would be arrested and tortured for meeting with a lawyer to discuss pressing charges against the police who allegedly killed his brother. Further, I also do not find it unreasonable for the Board to doubt the plausibility of the applicant being arrested, tortured and then released in the presence of important people such as members of the village council who could have acted as witnesses to the authority's brutality. I find that the inferences drawn regarding the credibility of the applicant were well within the Board's jurisdiction.
[11] The applicant claims that it was wrong for the Board to suggest that members of the village council would testify that they witnessed the torture of the applicant, given that they were not present at the time the acts of brutality took place. The Board stated in its decision:
[...] it is highly unlikely that they would have arrested the claimant, a well-known and respected retired Junior Commission Officer (as stated by the claimant), tortured him and released him in the presence of important people such as the Sarpanch, members of the village council and influential people who were witnesses to their brutality and could have acted as such in front of the Tribunal.
(Page 2 of the decision of the Board dated April 7, 2005)
[12] In this passage I do not believe that it was the Board's intention to suggest that members of the village council could act as eye witnesses to the brutality, as was suggested by the applicant. I find that the Board was merely making reference to the various ways in which the village council members could communicate their knowledge regarding the circumstances and events surrounding the applicant's arrest and torture. The Board properly appreciated and understood the evidence presented before it and its decision regarding the testimony of the village council members was not patently unreasonable.
[13] The Board concludes that the affidavit signed by the Sarpanch is either a document of convenience or a false document. The applicant claims that such a finding is arbitrary and unfair, particularly considering that no independent verification or expertise was done on the affidavit in question. In Al-Shaibie v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1131, the Federal Court of Appeal adopted the statement of Justice Nadon inHamid v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 1293 at paragraph 21, regarding the use of documents after a negative finding of credibility:
Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. In the present case, the Board was not satisfied with the applicant's proof and refused to give the documents at issue any probative value. Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility.
[14] In the present matter, the Sarpanch's affidavit was not given any probative value because the Board found the applicant not to be credible. Therefore, I find the Board's decision to dismiss the Sarpanch's affidavit not to be arbitrary or unfair.
[15] The applicant claims that the Board erred in not addressing all the relevant documents presented as evidence. These documents include a lawyer's letter, a medical certificate and a death certificate. It is well established law that the Board does not have to refer to every piece of evidence in its reasons. As stated by the Federal Court of Appeal in Florea v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 598 at paragraph 1:
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown.
[16] The Board is presumed to have considered all the evidence unless the contrary can be shown. I find that the applicant has not demonstrated that the Board failed to have regard to the totality of the evidence in coming to its negative credibility finding.
[17] The applicant claims that the Board did not properly address the evidence regarding the number of police abuse cases brought before the State Human Rights Commission, which had increased from 90 to 2,100 cases over the course of three years. I find, however, that the increase in the number of cases does not necessarily correlate to an increase in violence and abuse; it simply implies that people have greater access to justice and a way of resolving complaints. The Board's statistics are based on documentary evidence, which is referred to in order to illustrate that the State Human Rights Commission has become an efficient mechanism for those seeking recourse and justice. I find that the Board properly appreciated and understood the evidence presented before it and subsequently did not err in concluding that the applicant was not credible.
[18] The applicant claims that the Board erred in not fully appreciating the extent of the human rights violations in the Punjab. I disagree with the applicant and find that the Board assessed the evidence as a whole having regard to the totality of the evidence before it. In its analysis, the Board assessed documentary evidence that clearly showed that the conditions prevailing between 1984 and 1993 in the Punjab had greatly improved and that Sikhs were no longer persecuted. Further, the Board also found that the police could no longer act with impunity.
(See page 3 of the Board's decision, dated April 7, 2005)
[19] In order to justify an intervention of the Court, the burden rests upon the applicant to establish the Board's decision relating to credibility is patently unreasonable. It was held by
Justice von Finckenstein in Mutinda v. Canada(Minister of Citizenship and Immigration), [2004] FC 365, [2004] F.C.J. No. 429, at paragraph 11 that:
[c]redibility determinations are quintessential findings of fact and the applicant has the burden of showing that the Board's decision was patently unreasonable, or made without regard for the evidence before it.
[20] I find that the applicant has failed to demonstrate that the Board's credibility conclusions were patently unreasonable.
2. Did the Board err in its conclusions regarding state protection?
[21] The applicant argues that it would have been reasonable for the Board to conclude that he could not count on the authorities for protection. He argues that state protection could only truly be given on a sustained basis by the police, but given his attempt to take action against the police, and what the police had done to him and his brother, it is reasonable to conclude that protection from the authorities would not be forthcoming.
[22] A claimant must do more than show that he or she went to see some members of the police force and that his or her efforts were unsuccessful (see Kadenko v. Canada (Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532).
[23] This Court has determined on numerous occasions that for the purpose of determining the existence of state protection, one can rely on the availability of state run or funded agencies and not only from the police (Nagy v. Canada (Minister of Citizenship and Immigration), 2002 FCT 281, [2002] F.C.J. No. 370; Zsuzsanna v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1206, [2002] F.C.J. No. 1642; Szucs v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1614).
[24] The Board made an in-depth analysis of many documents surrounding the adequacy of state protection in India. It reasonably concluded that there are many ways for individuals, who allege police brutality, to obtain justice. Further, many lawyers and human rights groups are actively pursuing the claims of those alleging abuse. As pointed out by the respondent, the only step taken by the applicant to ensure his own protection in his country was to visit a lawyer, on one occasion. The Board reasonably concluded that the applicant had not exhausted all the avenues available to him to seek out protection of the state.
ORDER
THIS COURT ORDERS that
- The application for judicial review be dismissed;
- No question for certification.
"Pierre Blais"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3071-05
STYLE OF CAUSE: SUKHDEV SINGH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 26, 2005
APPEARANCES:
| Jeffrey Platt
|
|
| Gretchen Timmins
|
SOLICITORS OF RECORD:
| Jeffrey Platt Montréal, Quebec
|
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| John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec |