Date: 20011016
Docket: IMM-368-01
Neutral Citation: 2001 FCT 1121
BETWEEN:
BALDEV SINGH CHAHAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review under the authority of subsection 82.1(1) of the Immigration Act, against the decision of the Immigration and Refugee Board (the"Board") rendered on January 9, 2001 wherein the Board determined that the applicant is not a Convention refugee.
FACTS
[2] The applicant is a Sikh born on February 9, 1966 in Nathu Chahal in the Kapurthala District, Punjab, India.
[3] The applicant is a traditional Sikh farmer. His neighbour and friend Ranjit Singh was a member of A.I.S.S.F. (All Indian Sikh Student Federation).
[4] On January 20, 1997 Ranjit and Sajjan Singh visited the applicant. At eleven o'clock, the police raided the area and arrested the applicant. He was accused of supporting militants, tortured and arrested. He was released on January 30, 1997 with the payment of a bribe. Ranjit Singh was released after three
weeks and Sajjan Singh was never released and later, disappeared.
[5] On November 5, 1998, the applicant was arrested by the police while returning home. He was accused of transporting militants.
[6] On November 29, 1999, Ranjit and Sajjan Singh's fathers visited the applicant and informed him of a petition they had filed in Court, regarding the disappearance of Sajjan Singh.
[7] On January 9, 2000, the principal incident took place. The applicant heard gun shots being fired in his fields.
[8] The applicant ran away to the village of Dhandlan. The next day, the applicant was informed by his uncle that his friend Ranjit Singh had been murdered.
[9] The applicant, after having heard this news, went to stay with a friend, Parmjit Singh, in Bhalar Khanpur.
[10] On January 20, 2000, the applicant fled to Delhi and met an agent called Kumar.
[11] On January 22, 2000, the applicant was informed by his father that Parmjit Singh was arrested and encouraged the applicant to leave.
[12] Arrangements were thus made for the applicant to come to Canada, where he made a claim for refugee status.
[13] The Board found that the applicant's story on the principal elements of his claim was not credible.
[14] Specifically, the Board found that the applicant's refugee claim was riddled with contradictions and inconsistencies between the narrative in the Personal Information Form (the "PIF") and the Point of Entry notes (the "POE").
ISSUE
Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
ANALYSIS
Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
[15] No, the Board did not err by making adverse findings of credibility.
General considerations
[16] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.), the Court stated:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[17] As was stated in Rajaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1271 (F.C.A.), by Stone J.:
If it is apparent that a decision of the Board was based on the claimant's credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court (Brar v. Minister of Employment and Immigration, Court File No. A-937-84, Judgment rendered May 29, 1986). Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility.
[18] In Razm v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 373 (F.C.T.D.), Lutfy J. affirmed:
It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances.
[19] In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.), Evans J. stated:
It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence".
[20] In Boye v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1329 (F.C.T.D.), Jerome A.C.J. wrote:
The jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanour, frankness, readiness to answer, coherence and consistency in oral testimony before it.
CREDIBILITY OF THE APPLICANT
[21] The Board noted that the applicant struggled in his oral hearing when confronted with differing facts in his PIF and in the POE notes.
[22] The case of Madahar v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1614 (F.C.T.D.), is very insightful. In Madahar, I was faced with an application for judicial review of a decision by the Refugee Division wherein the Board found that the plaintiff was not a Convention refugee. The applicant was a Sikh, originally from the province of the Punjab in India. He argued that a militant was killed on his farm in April 1994 and that he was subsequently arrested and charged with offering food and lodging to militants. He said he was then tortured and finally released, following the payment of a bribe. The Board concluded that the applicant was not credible in his recount of events.
[23] I found that on the evidence submitted to the Refugee Division, it was not unreasonable for the Division to conclude as it did.
Incident on January 9, 2000
[24] The applicant was unable to provide a satisfactory answer in regards to the facts surrounding the murder of his friend Mr. Ranjit Singh. The Board in its decision wrote on page 2:
Core to the claim is the January 9, 2000 incident. In the PIF the claimant writes that he heard gun shots and ran away, in the point of entry notes (POE) at pages 30 and 34, the claimant talks about seeing his friend Ranjit murdered. The claimant was confronted with this discrepancy and was unable to give a satisfactory answer.
[25] According to the applicant's PIF, he claims he heard gun shots in his fields on January 9, 2000. Frightened, he ran away to the village of Dhanlan. The next day, the applicant was informed by his uncle that his neighbour and friend, Mr. Ranjit Singh, had been murdered.
[26] However, the applicant's POE notes tell a different story. In the POE notes, the applicant indicates that he first-handedly saw his friend murdered. This statement is found at page 22 of the Applicant's Memorandum:
Subject claims to be in fear of the Indian police. He witnessed his neighbour/friend being murdered by the police on his property. [...]
[27] In this regard, the Board wrote in its decision at page 2:
The claimant was confronted with this discrepancy and was unable to give a satisfactory answer.
[28] In Parnian v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 777 (F.C.T.D.), the issue before the Court was whether the Board's negative finding of credibility, which was based primarily on several implausibilities and discrepancies between the POE notes and the applicant's PIF, was in fact a valid conclusion. Weston J. found:
The question as to whether port of entry notes are admissible before the Refugee Division has been dealt with by this Court in the decision of Saidur Rahman v. M.E.I., IMM-2078-93, June 10, 1994, F.C.T.D. In that case, much like in this instance, the Board admitted the port of entry notes and relied upon them to make an adverse finding of credibility based on a discrepancy between those notes and the applicant's PIF and oral testimony.
The applicant's passport
[29] At the hearing, the Board seemed preoccupied by the fact that the applicant had never seen his passport, but was able to recite the document's number. Reproduced here is a portion of the hearing in regards to this issue. This portion highlights the applicant's struggle with credibility:
Q. Do you have a copy of your passport?
A. No.
Q. How could you remember the document number of a passport?
A. I remembered the number, the papers I had seen, I got that sent, I think this was the number.
Q. You remember, could you give me the number now?
A. Yes.
Q. What is it?
A. E941518.
- You have a good memory.
Q. Could you give me the number of your driving license?
A. ...
Q. Could you give it to me?
A. No, I don't remember.
Q. How could you remember you passport, a document that you said you never use it. [...] You have a document that you never use in your life. [...] You could remember the serial number of the passport. And one document that I presume you use every day, your driver license, this you can't give a number. Could you explain that?
A. I thought about this and I remembered what I told you. The other one I'm trying to think but I can't recall.
Q. Could you give me the date of birth of your father?
A. In 1942, but I'm not sure exactly.
- You remember the serial number of a passport that you have never used and you don't remember the birth date of your father.
Q. Why is it important to remember that passport number?
A. It's not that I memorize it everyday so that I could remember it. Suddenly when you asked me I remembered and I told you. I told you.
- But you have a selective memory. Very very very selective.
Interest of the Indian authorities in the applicant
[30] The applicant indicated in his PIF that he is wanted by the Indian authorities, however in the POE notes, the applicant indicated the contrary:
Are you wanted by the authorities in your country or any other country for any reason?
No.
[31] When asked to explain this contradiction, the applicant blamed in part the interpreter, who was his friend and was present during the POE interview. The panel did not find this explanation satisfactory as the same interpreter had helped the applicant on many other questions seemingly with no difficulty.
The previous arrests of the applicant
[32] In the POE notes, the applicant indicated that he had never been arrested. In his PIF, however, there are a number of arrests that are mentioned. The Board wrote in its decision at page 3:
The claimant was again unable to give any satisfactory explanation.
The disappearance of Sajjan Singh
[33] On January 20, 1997, the applicant, Ranjit Singh and Sajjan Singh were arrested by the police. The applicant claims that Sajjan Singh was never released and then disappeared. The applicant also alleges that the fathers of Ranjit and Sajjan Signh filed a petition with the Court in regards to Sajjan Singh's disappearance. The Board noted that the applicant never made any mention of the petition in the POE notes. This omission influenced the Board in an adverse manner. In its decision, the Board wrote at page 3:
The panel also compared the POE notes and the PIF and noted that the claimant had totally omitted to make mention of a petition or complaint regarding the disappearance of Sajjan. This omission leads the panel to believe that the claimant fabricated this part of his story in order to enhance his claim.
The applicant's medical report
[34] The Board consulted the medical report written by Dr. Vincenzo Colavincenzo dated December 24, 2000. This report corroborated the applicant's claim. However, it became apparent to the Board that the report was primarily based upon the applicant's PIF. The PIF however, as well as the majority of the evidence in the present case, is characterized by numerous discrepancies and inconsistencies. The fact that the PIF became coloured by discrepancies and inconsistencies and that the medical report was based upon the PIF, this affected the weight attributed to the medical report by the Board.
[35] In Danailov v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1019 (F.C.T.D.), Reed J. stated:
With respect to the arguments concerning the panel's findings on credibility, I read both the transcript and the Tribunal's decision before hearing counsels' submissions. I have now had the benefit of those submissions and could not conclude that the Tribunal's finding was other than entirely proper on the basis of the evidence before it. With respect to the assessment of the doctor's evidence, to find that that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.
[36] Also in Madahar, supra, an issue arose in regards to the medical evidence presented to the Board. I made reference to Kalia v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1682 (F.C.T.D.), where Pinard J. concluded:
While the above is sufficient to dismiss this application, I also wish to address the Board's dismissal of the applicant's medical evidence. In my view, it was open to the Board to reject this medical evidence, given that the facts underlying the reports were found not to be credible.
[37] In the view of the Board, the medical report was tainted by the lack of credibility of the evidence put forth by the applicant. In its decision, the Board wrote at page 3:
Due to the numerous discrepancies, contradictions and major omissions, the panel finds the claimant not credible and as such cannot give any probative value to the medical report produced as exhibit C-5.
The number of members of the applicant's family
[38] In his PIF, the applicant indicated he has three sisters. In the POE notes, the applicant mentioned only having one sister. This is not a major discrepancy nor is it determinative of the case, it does however serve as another example to illustrate the applicant's lack of consistency which had the effect of further undermining his credibility.
[39] At the hearing, the applicant was confronted with this and the Board wrote at page 2:
In the PIF the claimant mentions three sisters but in the POE he speaks of one sister. When asked for an explanation, the claimant said that he only mentioned the sister who lives at home, but in the same breath, he said that she lives near by and goes home every week. The panel does not find this explanation satisfactory. Question 15 of the PIF is clear and asks for a listing of all siblings. The POE notes at p. 34, at question 8, is also clear in asking for the family structure.
[40] Once again, in Boye, supra, Jerome A.C.J. stated:
Furthermore, the Refugee Division is entitled to make an adverse finding of credibility based on the implausibility of an applicant's story, provided the inferences drawn can be reasonably said to exist. Negative findings with respect to an individual's credibility are properly made, provided the tribunal gives reasons for its decision in clear and unequivocal terms.
After having carefully examined the reasons of the Refugee Division in the present case, I am satisfied it considered and weighed all of the evidence adduced by the applicant, [...] I am unable to conclude the panel ignored the evidence before it or that its findings were perverse or capricious. In the absence of such an overriding error, there is simply no basis for judicial interference with the decision.
[41] In conclusion, the evidence in the present case reveals a significant quantity of discrepancies, inconsistencies and omissions, specifically between the POE notes and the applicant's PIF. In addition to this, the applicant has been unsuccessful in his attempts to satisfy the Board with his explanations.
[42] In my view, the Board did not make any reviewable errors of fact or law which would justify the intervention of this Court. Therefore, the application for judicial review is dismissed.
[43] Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 16, 2001