Date: 20021209
Docket: IMM-5603-01
Neutral citation: 2002 FCT 1272
OTTAWA, ONTARIO, THIS 9th DAY OF DECEMBER, 2002
PRESENT: THE HONOURABLE MR. JUSTICE MARTINEAU
BETWEEN:
BUTA SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated November 15, 2001, wherein the applicant was declared not to be a Convention refugee as defined in section 2 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[2] The Applicant is a 38 year old citizen of India, of the State of Punjab. He claimed refugee status on the grounds of imputed and real political opinion, due to his membership in the All India Sikh Student Federation ("AISSF"), and because of the suspicion held by the police that he helped militants.
[3] The applicant's claim was dismissed by the Board due to a finding of negative credibility.
[4] The determination of the applicant's credibility is the heartland of the Board's jurisdiction and this Court has found that the Board has a well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant (see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 (F.C.T.D.) at para. 38; Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), N.R. 300 at 306 (F.C.A.); Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at 40 (F.C.T.D.)).
[5] Moreover, it has been recognized and confirmed that, with respect to credibility and the assessment of evidence, this Court may not substitute its decision for the Board's when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (see Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14; Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9; and the grounds for review at subsection 18.1(4)(d) of the Federal Court Act).
[6] Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence so long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms" (see Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.); Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (F.C.A.); and Kanyai, supra, at para. 10).
[7] Furthermore, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality (see Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 at para. 2 (F.C.A.); and Aguebor, supra, at para. 4). The Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence (see Akinlolu, supra, at para. 13; and Kanyai, supra, at para. 11).
[8] The applicant's counsel has raised several issues relating to the Board's general finding that the applicant was not credible and that his behaviour did not show a subjective fear of being persecuted. Her arguments will be addressed later, along with my analysis of the reasons given by the Board for discarding his testimony, but first, I will begin with a recital of the main allegations made by the applicant with respect to his fear of being persecuted in his country.
[9] The applicant alleged that he joined the AISSF in January 1983, and that in October 1983, after coming under the influence of the AISSF, he was arrested by the police in Punjab and detained for one month, during which time he was tortured twice. Following his release, he required medical treatment. The applicant then left Punjab in November 1983 and went to live with relatives in Ambala. He alleged that while in Ambala, his family paid a bribe to have his name removed from the police list. He stayed there in peace until June 1995 when he returned to Punjab. He was arrested in September 1995, and was detained for five days, during which time he was tortured. He was questioned regarding his whereabouts over the previous ten years and regarding the assassination of Berut Singh. There were other arrests or detentions in 1997, 1998 and in 1999. His last arrest occurred on October 18, 1999. He was told that his cousin, suspected of being a "high category militant", had been involved in the snatching of a gun from police the previous day (his alleged arrest in 1998 was also related to the fact that the same cousin would have visited his home). He was detained until October 27, 1999, and again he was tortured. The conditions of his release, upon payment of a bribe, were to report to the police station. However, on November 25, 1999, his wife, his son and he went to Delhi to stay with his wife's uncle. In July 2000, he left India and reached Canada, whereupon he claimed refugee status. He travelled to Canada in part on his own passport, issued in June 2000, and in part on a false German passport. Both documents are allegedly in the possession of the agent. His wife and his son are allegedly still in Delhi.
[10] The Board determined that the claimant was not credible and that he had not demonstrated with credible evidence that he would be at risk of persecution were he to return to India on the basis of these main findings:
- The applicant's return to Punjab in 1995 from a neighbouring state was not consistent with one who has a well-founded fear of persecution;
- The applicant was not on a police list in India;
- The applicant had not been tortured; and
- The applicant would not have been able to leave India on his own passport.
Return to Punjab in 1995
[11] The Board found that whatever the reason, the return of the applicant to Punjab was not consistent with one who has a well-founded fear of persecution. Since his return occurred in 1995, the applicant's counsel submitted that an error of law was made by the Board, as the issue was whether the applicant had a subjective and objective fear when he left his country in 2000. This submission is not persuasive. The applicant's difficulties and resulting fear from the police started in Punjab in 1983 where he was allegedly arrested and tortured. This is the sole reason given by the applicant to explain his departure from Punjab and his stay in Ambala for more than ten years. Subjective fear has a continuous character. It was reasonable for the Board in the circumstances to conclude that the applicant's return to Punjab in 1995 was not consistent with a well-founded fear of persecution. That being said, subjective fear is indissociable from the weight given by the Board to the various incidents upon which the applicant relied (see Pan v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1116 (F.C.A.)). In this respect, the overall credibility findings made elsewhere in the Board's decision convince me that it did not limit its analysis in time.
Police List
[12] On this issue, the Board did not believe that the applicant's name was on a police list for two main reasons. The first reason given by the Board is that there was an inconsistency between the applicant's PIF and his testimony as to whether or not his family had paid a bribe to have his name taken off the list. Specifically, the Board wrote "[m]oreover, the claimant gave inconsistent answers as to the allegation that his family had paid a bribe to remove his name from the police list. In his oral testimony he stated that he did not know if a bribe was paid while in his written testimony he wrote that his family paid a bribe to have his name removed from the police list".
[13] Having read the transcript of the oral testimony, I can say that the Board clearly misconstrued the applicant's testimony. The following excerpt (from page 256 of the certified Tribunal's record) demonstrates the context in which the said inconsistency arose:
Q. Do you know how much bribe your parents paid to the police to have your name deleted from the list?
A. They did not tell me about that. At that time I was (inaudible).
Q. And who was it that helped your parents to have your name deleted?
A. There was a retired police officer.
Q. Do you know his name?
A. They did not tell me the name.
[14] It is obvious from this reading that what the applicant was unaware of, was in fact the amount of the bribe and the name of the officer who was bribed. This does not contradict the written narrative. The applicant did not say that he did not know whether a bribe had been paid or not. However, given the other findings which I determine to be reasonably open to the Board I find that this error is not fatal.
[15] The other reason given by the Board for its conclusion that the applicant was not on the police list was that, had his name actually been on such a list, he would have been apprehended in Ambala long before he returned to Punjab. In my view, this inference is reasonable in light of the documentary evidence on record and despite some differences of opinion on the subject. The Board also noted that "[S]ikh youths were allegedly being arrested in the Ambala area sometime between 1994 and the claimant's departure in June 1995. The panel therefore does not believe that the claimant was on a police list in India".
[16] There is documentary evidence mentioning that the police regularly monitors the homes of relatives of suspects and track them down in different parts of India and "there have been famous cases of Punjab police tracking down, arresting, and sometimes killing suspects outside the State of Punjab" (exhibit A-13, Response to Information request, 7 November 1997, number IND 28217. Ex, certified Tribunal's record at p. 225). I also note that in another document this affirmative statement had been qualified:
Sources disagree whether the Punjab police would pursue an individual they wanted to another part of India: some say it is unlikely, unless the individual had a very high profile or the Punjab police secured the involvement of the Central Bureau of Investigation or the Central Reserve Police Force. There have been instances where the Punjab police have acted on their own, for example where they pursued and killed, in May 1993 and June 1994, former residents of Punjab who had relocated to West Bengal and Nepal.
[India Assessment, British Home Office, April 2001, certified Tribunal's record at para. 5.6.74]
[17] As mentioned earlier, it is trite law that the Board can also base its implausibility findings on extrinsic criteria such as rationality, common sense, and judicial knowledge and that even if the Court might have drawn a different inference or found the evidence to be plausible, it will not substitute its opinion for the decision of the Board (see Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.)).
[18] That being said, even if the Board misconstrued the documentary evidence, given the fact that its credibility finding does not rely solely on the question of inclusion on the police list, but on other valid findings, I find that any such error would not be sufficient to overturn the Board's decision and remit the matter back for a new determination. Moreover, despite the contradictory documentation, it appears clear that in the case of high profile individuals, including approximately 300 militants (see Report on fact-finding mission to Punjab (India), The position of the Sikhs, 21 March to 5 April 2000 sections 6.1 and 8.4.2 at Tab 3 of the respondent's record), the police will track them down. However, there is no evidence, in the case at bar, that would indicate that the applicant is or was considered a high profile individual who would be tracked down no matter where he lives. Considering that the burden of proof is on the applicant, it was reasonably open to the Board to infer that the applicant did not have a reasonable fear of being persecuted if he returned to India.
Torture
[19] With regard to torture, the applicant alleged to being tortured in 1995, 1998 and 1999. He says that he was kicked, slapped and pushed, he was beaten with leather belts and wooden sticks, he was hung upside down and had rollers used on his thighs, his legs were spread open and he received electrical shocks to his genitals and temples. I think that it was highly reasonable for the Board to conclude that such actions of torture would leave physical marks. This is even more so in light of the document referred to by the Board, namely, Lives under threat: A Study of Sikhs coming to the UK from the Punjab, July 1999, page 21, which indicates that "[i]n all but one of the men there was physical evidence such as scars or damage to the joints and muscles to support their allegation". However, the medical report submitted by the applicant revealed that the "review of [the applicant's] systems were all normal with no obvious abnormality". Therefore, the Board's finding on the issue of torture is well founded and quite reasonable; the burden to prove this issue was on the applicant.
[20] Regarding the probative value of the "post traumatic stress syndrome" diagnosis, I believe the Board was right in its decision. The fact that the doctor who made this diagnosis is not a psychologist and did not specify the "tools" he used to justify the post traumatic stress syndrome, reasonably entitled the Board to not give any probative value to the report.
Passport
[21] Finally, concerning the issue relating to the Board's finding that the applicant would have been unable to leave India on his own passport if he had, in fact, been wanted by the police, the applicant submits that this finding is flawed. The Board rejected his testimony, stating that it would not be possible for him to leave the country with his own passport without paying a bribe. The Board stated at page 2 of its decision that:
The claimant testified that he fled India because he failed to comply with the conditions of his release from detention on October 27, 1999. However he also testified that no warrant of arrest has been issued against him and that he left India travelling on his own Indian passport issued in June 2000. Although documentation cites that : "wanted people may also leave India, with false or genuine passports, perhaps on payment of a bribe", the claimant made no reference to the latter. Also, Ravi Nair director of SAHDR, reported that wanted people would not be able to get a genuine passport issued to them. Although there is disagreement on this issue, the panel, in light of the claimant's lack of credibility, determines that the claimant is not wanted by the Indian authorities, as he cited at the port of entry and in his Personal Information Form (PIF).
[22] The applicant states that the Board should have asked him whether he paid a bribe before determining that he was not credible. The respondent, on the other hand, submits that the burden was on the applicant to prove all the elements of his case, which was not fulfilled in the present case. The applicant contends that this Court has held that an opportunity must be given during the hearing to clarify apparent contradictions, inconsistencies or omissions in a refugee claimant's testimony, or PIF, especially when it intends to rely on that issue in its reasons. The applicant raises Gracielome v. Canada (Minister of Employment and Immigration) (1989), 9 Imm. L.R. (2d) 237 where the Court of Appeal states that "[i]t is worth noting that in none of the three cases were the applicants confronted with the alleged contradictions or asked for explanations. On the contrary, it is apparent that each example was found by the majority after the fact from a painstaking analysis of the transcripts of the evidence. In these circumstances, the Board is in no better position to weigh the contradictions than is this Court".
[23] In Ayodele v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833 (F.C.T.D.) at paragraph 17, the Court analysed the impact of Gracielome, supra:
... to have a decision fail, by reason only of the failure on the part of the CRDD members to put the contradictions to a represented applicant goes well beyond what I take to be the position enunciated in Gracielome and places what, in my view, is an unwarranted burden on members of the CRDD. To reiterate, the Applicant was represented. Presumably, counsel was attentive to the testimony. It was open to counsel to examine or reexamine his or her client on any perceived inconstencies [sic] without coaching from the CRDD members.
[see also Kahandani v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1769 (F.C.T.D.) at paras. 11-13; and Matarage v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 460 (F.C.T.D.) at para. 8)]
[24] Moreover, it was decided in Zheng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2002 (F.C.T.D.) at paragraphs 26-28 that:
The applicant acknowledges that he was questioned, at least by his own counsel, on the factual issues upon which the tribunal made its negative finding of credibility. It is trite law that the burden is on persons who seek refugee status to establish that their claims are well-founded in accordance with the applicable legal principles. The applicant does not question that credibility was in issue before the tribunal.
There is no suggestion by the tribunal that its negative inferences or findings of implausibility were based on any contradictions between statements made by the applicant in his personal information form and during his refugee hearing testimony. Nor is there any suggestion of any serious contradiction between two different statements made during his testimony or between his oral evidence and a personal document. Put simply, the tribunal did not believe the applicant's testimony.
In these circumstances, the tribunal was not required to question further the applicant. It was open to the tribunal, on the basis of the applicant's personal information form and his oral testimony to make its negative finding of credibility and its findings of implausibility: Matarage v. Canada (Minister of Citizenship and Immigration); [See Note 7 below] Ayodele v. Canada (Minister of Citizenship and Immigration); [See Note 8 below] and Sarker, supra note 6. The applicant has not established that the tribunal's findings were patently unreasonable.
[25] Accordingly, I conclude that in the present case there was no obligation on the Board to ask specific questions on the payment of a bribe. The Board could assess the credibility of the applicant's testimony concerning his entry to Canada (he never mentioned that a bribe had to be paid) with the documentary evidence on file. Furthermore, I also find that the Board was entitled to determine that the applicant was not wanted by the authorities, as he cited at the port of entry and in his PIF, considering that he was able to obtain a genuine passport and to leave India with said passport. In light of this it was reasonably open to the Board to conclude that this evidence was inconsistent with a person who has a genuine subjective fear of persecution (see Choque v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1017 (F.C.T.D.) at para. 5; Murga v. Canada (Minister of Citizenship and Immigration) (1995), 110 F.T.R. 231).
Conclusion
[26] There is no doubt that the Board's analysis is somewhat sparse and its reasons could have been better articulated. However, the essential ingredients for following the Board's reasoning are present. Moreover, where the Board has reason to question the plausibility of central elements of a claim, it is entitled to give no credit to the rest of the applicant's testimony. This is what happened in this case. Accordingly, even though some of the points raised by the Board might seem weak from the applicant's point of view, it remains that cumulatively they reasonably justify the Board's conclusion (see Sylla v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 793 at para. 2 (F.C.A.)). As stated by Sharlow J. (as he then was) in Adeli et al. v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 349 at paragraph 18 (F.C.T.D.):
Counsel for the Applicants argued that if I find any of the panel's conclusions on implausibility to be unreasonable, I should set aside the panel's decision. It seems to me that I must consider the decision as a whole against all of the evidence that was before the panel. This approach is consistent with the burden the Applicants must meet.
[see also Perez v. Canada (Minister of Citizenship and Immigration) (1995), 92 F.T.R. 131 (F.C.T.D.)]
[27] Furthermore, although the Board may have committed some errors of fact or may have misconstrued certain elements of the documentary evidence, I am not convinced that they are consequential and material errors which are sufficient to overturn the Board's decision (see Schaaf v. Canada (Minister of Employment and Immigration), [1984] 2 F.C. 334 (F.C.A.); Khorasani v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1219 at para. 38-40 (F.C.T.D.); and Mbabazi v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1623 at para. 22 (F.C.T.D.)).
[28] Finally, having considered all the reasonable and documented inferences, I find that the general credibility conclusion reached by the Board is not patently unreasonable and must be sustained. Therefore, this application for judicial review will be dismissed.
[29] Neither counsel recommended the certification of a question.
ORDER
The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated November 15, 2001, is dismissed. There is no serious question of general importance to be certified.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5603-01
STYLE OF CAUSE: BUTA SINGH v. MCI
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: November 14, 2002
REASONS FOR
ORDER AND ORDER: December 9, 2002
Ms Diane Doray FOR PLAINTIFF/APPLICANT
Ms Michèle Joubert FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Ms Diane Doray FOR PLAINTIFF/APPLICANT
Montreal, Quebec
Morris Rosenberg FOR DEFENDANT/RESPONDENT
Deputy Attorney General of Canada