PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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 May 13, 2004, in which the Board determined that Mr. Jaskaran Singh (the applicant) was not a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Act.
[2] The applicant is a citizen of India, who claims to be a person in need of protection.
[3] He alleges the following facts in support of his claim:
[4] The trouble for the applicant started during his vacation to Jammu Kashmir in 2002, where he met a man by the name of Jahid. The applicant and Jahid decided to start a business of selling articles made of wool. During the month of December 2002, the police came to the house of the applicant and found a bag belonging to Jahid, which contained wool garments as well as explosives. The applicant claims that the police then arrested him, brought him to the police station and tortured him, releasing him 3 days later thanks to a bribe from his village council.
[5] February 20, 2003, the police again raided the house of the applicant, arrested him and tortured him, under the pretext that he was withholding information on the whereabouts of Jahid. The police then threatened to kill the applicant if he did not provide information about Jahid and his group by April 1st, 2003.
[6] On March 15, 2003, the applicant's father met with an agent to arrange for his safe transportation out of India. With the help of the agent, the applicant was enrolled at the UniversityCollege of the Cariboo in Kamloops, British Columbia, and was able to enter Canada on May 1st 2004, with a student visa.
[7] Shortly after school began, the applicant subsequently withdrew from his studies in order to send the enrollment fees back to India to help his family. His student visa was therefore invalidated, but he now wishes to remain in Canada as a Convention refugee.
[8] The Board found that the applicant lacked credibility. The Board found that the applicant's story itself was not plausible, as it was incoherent and contained omissions contradictions. The applicant also failed to clarify these problems when he was given the opportunity to do so by the Board.
[9] The standard of review with respect to credibility determinations, based primarily on questions of fact, is patent unreasonableness: Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.)(QL); N'Sungani v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 2142 (F.C.)(QL).
[10] The applicant claims that it is not proper for the Tribunal to base credibility on an extensive "microscopic" examination of issues unrelated or peripheral to the applicant's case. Yet there are numerous reasons mentioned to support the conclusion that the applicant lacked credibility, none of which appear to be unrelated or peripheral to the present case.
[11] Firstly, during his interview on August 26, 2003, the applicant neglected to mention any mistreatment whatsoever at the hands of the police in India, even though one of the questions asked to provide details on arrests or detentions by the police or military in his home country. However, in his PIF and oral testimony, the applicant alleged that he had been arrested and detained on two separate occasions, but had simply omitted these facts on his application. These inconsistencies in the applicant's account of events are in no way unrelated to or peripheral to his claim.
[12] Secondly, with respect to the discrepancy regarding the reason why the applicant's troubles began, I do not find that it was unreasonable for the Board to draw a negative inference based on the answer given to question 17 of the interview notes. The applicant was interviewed to determine whether he would be accepted as a refugee based on the torture he was being subjected to in India. When asked to elaborate about his detention by Indian authorities, however, the applicant simply stated that he was arrested twice by the police. Furthermore, as pointed out by the Board, the applicant was given the opportunity to review the notes taken during the interview and raise any problems before the hearing.
[13] Thirdly, the motive for his trip to Canada seems very unclear. Although the applicant alleged to have fled India for fear of torture from the police, he did not make a claim for refugee status when he first entered Canada. Although it is understandable that the applicant may have used a student visa as a pretext in order to enter Canadaeasily, once he had entered Canada, he waited several months before finally making a claim for refugee status. Though the applicant explained that he did not seek to claim refugee status due to financial constraints, he did have sufficient funds to enroll at a university.
[14] Nevertheless, the Board did not base its conclusions on the delay in claiming refugee status alone. Rather, it simply took the delay into account as one among many factors negatively impacting the applicant's credibility.
[15] As for the applicant's claim that it was an error not to take into account the medical certificate, it must not be forgotten that it is the Board who is in the best position to evaluate the evidence and accord it the appropriate weight. The decision of the Board states that the medical reports were not accorded much weight because they did not prove that the applicant was arrested and tortured.
[16] The medical certificates both state that the patient was "suffering from multiple injuries with bruises and abrasions", and one specifies that these injuries were located on his extremities. It was therefore reasonable for the Board to determine that while these certificates did prove that the applicant suffered injuries, they did not in any way prove how these injuries occurred.
[17] Thus, the Board's review and assessment of the evidence was not patently unreasonable.
[18] The applicant also claims that there was a violation of the audi alteram partem principle, the right to a fair hearing. He claims to have requested the hearing in English, but was given a hearing in French. He states that he was cut off numerous times while trying to answer questions, and that the Board member had a derogatory and aggressive attitude towards him. I have examined the transcript and did not arrive at that conclusion. While I recognized that the Board member did often repeat the question asked, it appears to be more to clarify to Mr. Singh what was being asked of him. As I cannot assess the tone of voice and the manner in which the questions were asked and that no objection was done at the time of the hearing I am unable to decide from the transcript if the attitude of the Board member was derogatory.
[19] Furthermore, the applicant stated that he spoke some English, yet did not object to the hearing being conducted in French. It was up to him or his counsel to object to the language of the hearing at the first opportunity possible. The fact that no objections were presented, implies acceptance on behalf of the applicant. It is too late to object at this point in time (see Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 85 at para. 19 (C.A.)).
[20] For all of the above mentioned reasons, I would dismiss this application for judicial review. The decision of the Board was not patently unreasonable, and did not infringe the principles of procedural fairness.
ORDER
THIS COURT ORDERS that
The application for judicial review is dismissed.
J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5405-04
STYLE OF CAUSE: Jaskaran Singh
and
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montreal, Quebec
REASONS FOR ORDER: TREMBLAY-LAMER J.
APPEARANCES:
Mr. Stewart Istvanffy FOR APPLICANT
SOLICITORS OF RECORD:
Mr. Stewart Istvanffy
1061 Saint-Alexandre Street
Montreal, Quebec
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Montreal, Quebec FOR RESPONDENT