Date: 20021125
Docket: IMM-4959-01
Neutral citation: 2002 FCT 2010
BETWEEN:
VARINDER PAL SINGH BHATIA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD), now the Refugee Protection Division (RPD), in a decision dated September 25, 2001, vacated the applicant's Convention refugee status and determined that he (Mr. Bhatia) is not a Convention refugee. He seeks judicial review of that decision.
[2] Mr. Bhatia is a citizen of India and is a Punjabi Sikh. He initially claimed refugee status in Canada on the basis of fear of persecution in India by reason of race, religion, nationality, political opinion and membership in a particular social group. He alleged involvement with the Sikh community and more specifically, the gurdwara (a Sikh place of worship). He was found to be a Convention refugee on November 8, 1994. The Minister of Citizenship and Immigration (the Minister), on October 19, 1999, applied under paragraph 69.2(3) of the Immigration Act, R.S.C. 1985, c. I-2, to vacate the earlier determination. In support of that application, the Minister filed a statutory declaration delineating first, that Mr. Bhatia had, on February 2, 1990, applied for a visitor's visa for entry to Canada. His personal information form (PIF) stated that he had not applied for a visa. Second, it declared that the applicant's wife, during an interview with a visa officer at the Canadian High Commission in New Delhi on February 24, 1997, told the visa officer that Mr. Bhatia had gone to Canada because he wanted to live abroad and earn a lot. She stated that he had been arrested once (not twice) in relation to a money dispute. He did not otherwise encounter problems with police or military, had never been imprisoned and the police, military or militants had not come to the family residence looking for him. The Minister's statutory declaration contrasted the statements made by Mrs. Bhatia to those of Mr. Bhatia in his PIF. The latter contained statements that the applicant left India for fear police would detain and torture him because he was seen to be an enemy. It also provided details of two detentions involving torture as well as a statement that his escape from detention would result in an even worse situation if he were returned to India.
[3] The vacation hearing was held on November 21, 2000 and May 7, 2001. The applicant's wife and brother gave telephonic evidence. Mrs. Bhatia testified that she lied when she was interviewed by the visa officer in 1997 because she was afraid that the information she gave the officer would make its way to the Punjab police.
[4] The CRDD found that the applicant obtained his Convention refugee status by fraudulent means or by misrepresentation, suppression and concealment of material facts. The panel found that the evidence of the applicant's wife and brother at the hearing was not credible or trustworthy. It found the 1997 evidence of Mrs. Bhatia credible. Having done so, the panel concluded that it could not accept the applicant's 1994 evidence as credible. In the absence of evidence from the applicant, the panel found no evidence upon which a positive determination could be based.
[5] The applicant advances several allegations of error on the part of the CRDD, specifically:
(a) failing to address the burden of proof;
(b) erring in law with respect to its assessment of the brother's evidence;
(c) erring because it failed to consider the fact that the evidence of the applicant had been found credible by a previous tribunal and weigh and assess this against the totality of the evidence before it;
(d) erring in law in putting any weight on the visitor's visa application when this had been before the previous panel;
(e) erring in law in the manner in which it dealt with the wife's explanation for her statements to the embassy official.
[6] Because I have determined that the application for judicial review should be allowed on the basis of ground (e), it is not necessary for me to review the other grounds, save and except the first. I will address the first ground, in part, because applicant's counsel proposed a contingent question for certification in relation to that ground. The question is suggested only if I should determine that it was incumbent on the CRDD, in its decision, to explicitly and unequivocally, state the appropriate onus and standard of proof applicable to the vacation hearing.
[7] The parties agree that the onus, on a vacation hearing, lies with the Minister. They further agree that the standard of proof is a balance of probabilities. Mr. Bhatia argues that when an applicant makes extensive submissions before the panel, with respect to the onus and the standard of proof to be applied, the issue is then enjoined, the panel must make a ruling and the ruling must be expressly stated. The applicant submits that, here, it is not clear that the CRDD understood that the onus was on the Minister.
[8] The respondent argues that there is no requirement for the panel to expressly state the applicable onus or the applicable standard. The respondent submits that it must simply be clear that the panel understood, appreciated and applied the appropriate onus and standard. In short, the onus and standard must be implicit in the panel's decision, but need not be explicitly stated.
[9] The authority offered by the applicant to support his position consists of two cases related to the residency requirements under paragraph 5(1)(c) of the Citizenship Act, R.S.C. 1985, c.29 and one case dealing with the test for reasonable apprehension of bias. I do not find the citizenship cases helpful or relevant. I recognize that there are situations where, when interpreting provisions of the Immigration Act, reference to the Citizenship Act may provide assistance. However, the proffered cases relate to the calculation of days of residency in Canada. Since the jurisprudence diverges with respect to whether physical presence is required or whether residency may be deemed (after initial establishment is met), a citizenship judge is required to explicitly or implicitly articulate which line of authority is being applied and must then follow the line chosen. That is not the situation that exists here. There is no divergence of opinion of which I am aware, nor has counsel directed me to any, regarding the onus and standard of proof with respect to vacation hearings.
[10] The authority dealing with reasonable apprehension of bias, Grigorenko v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 285 involved enunciation of the applicable test. Denault, J., in that decision, stated, "...there is nothing which requires the panel to state the applicable test in its oral and written decision. As long as it is clear from the decision that the panel had regard to the tests, there are no grounds for this Court to intervene".
[11] In the context of vacation hearings, it is settled law that the onus is on the Minister: Canada (Minister of Citizenship and Immigration) v. Ekuban, [2001] 3 F.C. 85 (T.D.); Olutu v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1704 (T.D.); Kahin v. Canada (Minister of Citizenship and Immigration) (1995), 91 F.T.R. 46. While the CRDD, here, did not expressly state that this was the case, the tribunal record reveals that it regarded it as such. The discussion at the conclusion of the hearing regarding post-hearing submissions is recorded at page 923 of the tribunal record. The following comment is made by the presiding member:
Mr. D'Amata [counsel for the Minister], it's your case to make in terms of the application to reconsider and vacate so would you be able to provide us with your written submissions by the 21st.
[12] I have not been persuaded that the CRDD is required to address the onus and standard of proof as argued by the applicant's counsel. I find myself in agreement with the reasoning of Denault, J. in Grigorenko and I conclude that the CRDD need not expressly state the applicable onus and standard of proof in its decision provided that it is clear, from the decision, that the panel had regard to that onus and standard of proof i.e., provided that it is implicit in the panel's decision. This conclusion is sufficient to address the concern of applicant's counsel regarding the obligation of the panel. Since I have determined that the application for judicial review is to be allowed on other grounds, I do not propose to embark upon an analysis of whether the panel implicitly addressed the onus and standard of proof in this instance.
[13] The area of the panel's decision that I find most troubling is that in relation to Mrs. Bhatia's evidence at the vacation hearing. It is particularly troubling because it involves findings of credibility based on inconsistencies and implausibilities, matters that fall squarely within the expertise of the CRDD: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) Credibility findings, however, are not immune from the Court's supervision and this principle has been established in a long series of cases: Sheikh v. Canada (Minister of Citizenship and Immigration) (2000), 190 F.T.R. 225. The alleged discrepancy or inconsistency must be rationally related to the applicant's credibility and explanations which are not obviously implausible must be taken into account: Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.). The CRDD is under a very clear duty to justify its credibility findings with specific and clear reference to the evidence and this duty becomes particularly important where the non-credibility finding is based on perceived implausibilities. Implausibilities are inherently subjective assessments largely dependant on the panel member's perception of what constitutes rational behaviour: Leung v. Canada (Minister of Employment and Immigration) (1994), 81 F.T.R. 303.
[14] At the vacation hearing, Mrs. Bhatia testified that she lied at the 1997 interview with the visa officer. She explained that she lied to protect herself and her children from the Punjab police because she feared that the information she gave at the interview would somehow end up in the hands of the police. The panel found that it was not reasonable to accept Mrs. Bhatia's explanation. Having rejected her explanation, it then concluded that she must have been telling the truth at the 1997 interview.
[15] Specifically, the CRDD determined that if it was true that her husband was afraid of the Punjab police because he had been detained and tortured, it was reasonable to expect that she would have mentioned this in the 1997 interview particularly in view of the fact that she knew he had been accepted as a Convention refugee in Canada. It was not reasonable to accept that Mrs. Bhatia would state that her husband left for Canada because he wanted to live abroad if he was really forced to leave the country because of his fear of the police. If truly afraid of reprisals from the Punjab police, Mrs. Bhatia would not have disclosed that her husband travelled to Canada on a false passport. The CRDD found this statement, because it was consistent with the applicant's PIF, to have clearly undermined her explanation for why she allegedly lied to the visa officer. The panel found no persuasive reason why Mrs. Bhatia would not have given credible evidence at the 1997 interview. Finally, the CRDD did not accept that "someone who allegedly feared the Punjab police, and whose spouse was allegedly being sought by the Punjab police, would not have mentioned anything whatsoever about this to officials at the Canadian High Commission in New Delhi". It concluded that if she feared the police, it was reasonable to expect that she would have said something at the 1997 interview.
[16] The failure of Mrs. Bhatia to inform the visa officer of her fear of the Punjab police was an important factor in the negative credibility determination of the CRDD. There are two areas of concern in this respect. First, a panel should not infer that an individual with a real fear of persecution will necessarily indicate such fear to a visa officer when seeking a visa: Fajardo v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 392 (F.C.A.). Secondly, there is no indication or suggestion that the CRDD considered Mrs. Bhatia's 1997 evidence within its proper cultural and socio-political context before drawing conclusions as to the plausibility of that evidence. Such failure has been held to constitute grounds for quashing a decision: Ye v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 584 (C.A.). Having carefully reviewed the decision, I am unable to conclude that the CRDD did not impose western concepts on a non-western culture. Canadian paradigms do not apply in India: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312.
[17] Also noteworthy is the fact that although the CRDD summarizes the submissions of counsel, it then states, "...having carefully considered the submissions of all parties ... [the panel] finds the RCO's and the Minister's counsel's submissions to be more persuasive". The panel finds Mrs. Bhatia to be not credible for the reasons noted earlier. It makes no further reference nor does it provide any explanation or analysis as to why it rejects the following submissions by the applicant:
(a) paragraph 198 of the United Nations High Commission for Refugees Handbook notes that persons who fear the authorities in their own country may be afraid of speaking freely and giving a full and accurate account of their case;
(b) the documentary evidence indicates that the police in India engage in extortion and torture;
(c) the evidence indicates that Mrs. Bhatia had already been arrested and mistreated in India;
(d) there was no evidence regarding the nature of the interview with the visa officer particularly whether Mrs. Bhatia had received any assurances that the information would not be shared with the Punjab police.
[18] There is no requirement that the CRDD refer to and analyse all of the evidence before it, but the more important the evidence that is not specifically mentioned and analysed in the reasons, the more willing the Court may be to infer an erroneous finding of fact: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
[19] The factors referred to above were significant to the applicant's case. The cumulative effect of the CRDD's failure to analyse any of these factors in combination with the difficulties referred to earlier with respect to the panel's reliance on Mrs. Bhatia's failure to inform the visa officer of her fears results, in my view, in reviewable error.
[20] The ultimate conclusion of the CRDD may have been open to it, but its analysis, for the reasons given, was flawed and insufficient to support the conclusion that Mrs. Bhatia's evidence at the vacation hearing was not credible. The finding that the applicant is not a Convention refugee was largely a result of the determination regarding Mrs. Bhatia's vacation hearing evidence. Therefore, the application for judicial review is allowed and the matter is remitted back to the RPD for redetermination by a differently constituted panel.
[21] Counsel's proposed question for certification was contingent upon my having determined that the CRDD is required to expressly state the onus and standard of proof it applied. I have not concluded that such requirement exists. This case raises no serious question of general importance. No question is certified.
___________________________________
Judge
Ottawa, Ontario
November 25, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4959-01
STYLE OF CAUSE:VARINDER PAL SINGH BHATIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 25, 2002
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
DATED: NOVEMBER 25, 2002
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Ms. Robert Bafaro
For the Respondent
SOLICITORS OF RECORD: Lorne Waldman
Barrister & Solicitor
Jackman, Waldman & Associates
Toronto, Ontario
For the Applicant
Robert Bafaro
Department of Justice
Toronto, Ontario
For the Respondent