Docket: IMM-9087-04
Ottawa, Ontario, this 22nd day of September, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
REENA KAUR, SHIVAM SINGH SAINI, MUSKAN SAINI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Main Applicant, Mrs. Kaur is a citizen of Punjab, India. She acted as the designated representative of her two minor children, Shivam Singh Saini and Muskan Saini, who were born in the United States. She claims a fear of persecution for two reasons: 1) her father was suspected of being a Sikh militant; and 2) she is now married to a man who is a refugee in the United States because he was also perceived as a Sikh militant.
[2] In July 1995, the Applicant and her father were arrested, detained and beaten for several days by the Punjab official police. They were released after the payment of a bribe. In September 1995, the police arrested the Applicant's father once again and he has not been seen since.
[3] The Applicant was in Bangladesh when her father was arrested for the second time and she lived there until September 1996, when she moved to Calcutta, India. In December 1996, she left Calcutta for the United States.
[4] The Applicant married her husband, Anil Singh, in 1997 in the United States. Anil Singh was granted refugee status in the United States before they were married and is now a permanent resident in the United States. The Applicant's refugee claim in the United States was ultimately rejected on November 12, 2003 by the United States Court of Appeals for the Ninth Circuit.
[5] The Applicant claims that she feared being deported to India and therefore fled to Canada with her children on January 10, 2004. Upon arrival in Canada, she made a refugee claim.
[6] First of all, the Immigration and Refugee Board (the "Board") determined that the Applicant's children were not refugees because they were citizens of the United States and no claim against the United States had been made out.
[7] Secondly, the Board ruled that the Applicant's claim was not credible and she had a reasonable internal flight alternative ("IFA") in Calcutta. The Board also found that since it had been nine years since her alleged problems in Punjab, and since the documentary evidence provides that the Sikh movement is no longer active, that the Applicant could return to Punjab without being persecuted.
[8] The Applicant raised ten issues in her application for leave for judicial review and two further issues in her supplementary memorandum of argument. The questions raised in argument can be reduced to the following issues:
1) Did the Board err in misstating the evidence?
2) Did the Board make findings of credibility that are patently unreasonable?
3) Did the Board err in finding that the Applicant had an IFA in Calcutta?
4) Did the Board err in considering the likelihood of persecution based on her relationship with her husband?
[9] It is undisputed that the applicable standard of review for issues of credibility is patent unreasonableness (Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17).
Issue #1: Did the Board err in misstating the evidence?
[10] The Applicant submits that the Board erred when it stated that the Applicant provided inconsistent evidence regarding her departure from India by first stating that she left India for Bangladesh at the end of August 1995, and later stating that she left on September 10, 1995. In fact, according to her affidavit, the Applicant stated that she left India at the end of August or the beginning of September 1995.
[11] The Applicant asserts that the Board also erred when it relied on the erroneous statement of fact that her mother remained in Punjab until 1997 without any problems. In reality, the Applicant's testimony illustrated that she had not spoken to her mother since 1996 and that she clearly stated that her villagers lead her to believe that her mother had been taken away by the police in 1996 and had not been heard from since.
[12] I do not accept that the Board misstated the evidence because the Applicant in fact stated that she left at the end of August and later stated upon cross-examination that she left on September 10th. The Board did not have a duty to bring this inconsistency to her attention, as this was not the sole basis for concluding that the Applicant lacked credibility (see Hilo v. Canada (Minister of Employment & Immigration), [1991] F.C.J. No. 228).
[13] While it is true that the Board erred regarding the Applicant's mother, this is not a material error. The mere fact that the Applicant had not spoken to her mother since 1996 does not mean that she did not remain in Punjab until 1997. This isolated error is not material and is thus insufficient to result in a patently unreasonable finding.
Issue #2: Did the Board make findings of credibility that are patently unreasonable?
[14] The Applicant's arguments are divided into many different issues but the essence can be summarized as follows:
- the Board should not have relied on the Applicant's failure to mention in her PIF that she had posted flyers and attended meetings for the Akali Dal Maan Party because her claim related to her association with suspected militants and not because she herself was suspected of being a Sikh militant;
- the Board ignored her explanation of why her father did not flee to Bangladesh and in so doing committed a reviewable error;
- the Board erred in finding it implausible that the Applicant would leave Bangladesh where she was supported by the Sikh community to return to India; and finally
- the Board failed to put the inconsistencies to her and therefore did not give her an opportunity to address the perceived inconsistent testimony before relying on it to conclude negatively as to her credibility.
[15] I find it difficult to accept these submissions. The Board was well within its right to question the Applicant's omission with regard to her involvement with the Akali Dal Maan Party given that it related to the Applicant's claim that she would be targeted for her role in the party.
[16] The Board found her explanation regarding her father's staying behind unconvincing. The Board also questioned why she would flee Bangladesh upon hearing rumours of alleged Police inquiries, only to return to India where she was allegedly persecuted. This certainly does have a ring of implausibility to it.
[17] Lastly, the whole transcript reveals a detailed questioning of the Applicant's testimony. Every inconsistency was put to her but the Board was simply not convinced by her explanations. As stated in Sinan v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 188 at para 11:
The Applicants have put forward alternative explanations for many of the Board's findings. When the standard of review is, as here, one of patent unreasonableness, it is not sufficient to present an alternative line of reasoning - even where that may present a reasonable explanation. What the Applicants must do is to point to a conclusion of the Board that is not supportable in any way on the evidence.
Here the Applicant did not point to any conclusion of the Board that was unsupported by the evidence.
Issue #3: Did the Board err in finding that the Applicant had an IFA in Calcutta?
[18] The Applicant relies on Luzi v. Canada (Minister of Citizenship and Immigration), [2003] FC 1179 to argue that the numerous errors with regard to credibility tainted the Board's ability to properly assess the availability of an IFA. As I have found that the findings of credibility where not patently unreasonable, I do not see how the IFA finding was tainted. The Applicant, by her own testimony, lived in Calcutta and had the support of a temple there. Thus, the finding of Calcutta as a possible IFA is not unreasonable.
Issue #4: Did the Board err in failing to consider the likelihood of persecution based on her relationship with her husband?
[19] The Applicant argues that because her husband is a refugee based on his perceived Sikh militancy, the Applicant's status as a member of the social group of family members of Sikh militants should have been sufficient to grant her status as a refugee. She cites Kaprolova v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1242 at para 13 where the Court found that where the Board is satisfied that the father has the grounds to be a Convention refugee, it is difficult to see how the wife and child, who have the same fear, would not have grounds to be a Convention refugee.
[20] In this case, the Applicant met her husband after leaving India. She left India because of her father's association, and not because of her husband's. Her husband fled for reasons of his own and received asylum in the United States. As their fears have totally different origins, the reasoning of Kaprolova, supra does not apply.
[21] Accordingly, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
A Konrad W. von Finckenstein @
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9087-04
STYLE OF CAUSE: REENA KAUR, SHIVAM SINGH SAINI,
MUSKAN SAINI
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 29, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Justice von Finckenstein
APPEARANCES:
| David Orman |
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FOR THE APPLICANTS |
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| Matina Karvellas |
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FOR THE RESPONDENT |
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SOLICITORS OF RECORD:
| David Orman Toronto, Ontario |
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FOR THE APPLICANTS
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| John H. Sims, Q.C. Per: Matina Karvellas Toronto, Ontario |
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FOR THE RESPONDENT |
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