Federal Court Decisions

 

 

Date: 20060929

Docket: IMM-6808-05

Citation: 2006 FC 1142

BETWEEN:

HARMINDER SINGH UPPAL

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

 

 

REASONS FOR JUDGMENT

 

 

Pinard J.

 

 

[1]               This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) dated October 19, 2005, wherein the Board found that the applicant is not a “Convention refugee” or a “person in need of protection” as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).

 

[2]               Harminder Singh Uppal (the “applicant”) alleges that in 1996, he fled India afraid he would be killed if he remained, due to a land dispute between his father and distant relatives of his father.

 

[3]               The applicant alleges that in the early 1990’s, his cousins would have used their influence to have the police accept false reports of his and his father’s support of terrorists. As a result of these false allegations, the applicant’s father was beaten, he and his father received death threats and in 1998 his father died as a result of police beatings.

 

[4]               In 1996, the applicant left India and traveled to the United Kingdom (“UK”) via Spain and France. On two separate occasions, he returned to India.

 

[5]               In 2004, the applicant came to Canada using a false UK passport and made a claim for protection on the basis that he fears his cousins will cause his murder through their influence on the police as would have been the case with his father.

 

[6]               The Board’s principal reason for denying the applicant’s claim was that the applicant is not credible. That determination was founded upon the following findings of fact, none of which have been contested by the applicant:

• The applicant left India in 1996 for the United Kingdom; he lived in that country for eight years without making a refugee claim;

 

• The applicant resided in the United Kingdom on the basis of forged identification; he used forged documents to enter Canada and made a refugee claim in Canada only after he was confronted with these facts;

 

• The applicant risked deportation from the United Kingdom throughout the entire period he was there as his status in that country was fraudulently obtained;
• The applicant returned to India on two occasions during this eight-year period, each time for approximately three weeks, to visit his mother;

 

• The applicant provided no documentary evidence to substantiate his story that he fears reprisal from distant relatives, with whom his family became embroiled in a land dispute, and who prompted the police to arrest his father and beat him to death on the basis of false accusations; and

 

• The applicant’s explanation for his failure to produce these documents was that he didn’t believe that they were necessary.

 

 

 

[7]               Having determined that the applicant’s claim should be rejected on the grounds that he was not credible, the Board continued: “In the alternative I am satisfied New Delhi is a viable IFA.” The Board found that the applicant had an IFA (Internal Flight Alternative) to New Delhi because:

• Notwithstanding his fears, he had never been arrested by the police and was not currently wanted by the police;

 

• The applicant applied for and obtained a genuine Indian passport while residing in the United Kingdom; and

 

• The documentary evidence indicated that only high profile Sikh militants are searched out by the Punjab police.

 

 

 

* * * * * * * *

 

 

1. Rule 7

 

[8]               Rule 7 of the Refugee Protection Division Rules (the “RPDR”), SOR/2002-228, states:

7. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them.

7. Le demandeur d'asile transmet à la Section des documents acceptables pour établir son identité et les autres éléments de sa demande. S'il ne peut le faire, il en donne la raison et indique quelles mesures il a prises pour s'en procurer.

[9]               The applicant submits that paragraph 3(2)(e) of the Act mandates that the procedures established to deal with refugees be fair and efficient:

3. (2) The objectives of this Act with respect to refugees are […] (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings;

3. (2) S’agissant des réfugiés, la présente loi a pour objet : […] e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d’une part, de l’intégrité du processus canadien d’asile et, d’autre part, des droits et des libertés fondamentales reconnus à tout être humain;

 

 

[10]           According to the applicant, Rule 7 of the RPDR violates paragraph 3(2)(e) of the Act as the procedures established under Rule 7 are not fair to those refugees who run from persecution, death or torture and who are unable to produce corroborating documents or provide an explanation as to why they cannot produce the corroborating documents.

 

[11]           The applicant submits that he did give evidence under oath, but the Board reproached him for failing to provide documents in support of the “core of his claim that his father left him the land in the will or that his father died as result of beatings while in custody.” The Board therefore concluded the following:

. . . Lacking any documents that would support any aspect of the claim other than the claimant’s I.D. as a citizen of India formerly from the Punjab, I am satisfied on a balance of probabilities the claimant is in default of Rule 7 and I make a negative credibility inference as a result.

 

 

 

[12]           The applicant submits that such a conclusion was a serious legal error.

 

[13]           However, subsection 161(1) of the Act confers on the Chairperson the ability to make regulations such as Rule 7, and the applicant has not explained how non-compliance with paragraph 3(2)(e) of the Act (an articulation of the objectives of the Act) results in the invalidity of Rule 7. It is my opinion that non-compliance with paragraph 3(2)(e) of the Act would not render Rule 7 ultra vires of its enabling provision, subsection 161(1), which reads:

161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, the Chairperson may make rules respecting (a) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, the priority to be given to proceedings, the notice that is required and the period in which notice must be given; (b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules; (c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and (d) any other matter considered by the Chairperson to require rules.

161. (1) Sous réserve de l’agrément du gouverneur en conseil et en consultation avec les vice-présidents et le directeur général de la Section de l’immigration, le président peut prendre des règles visant : a) les travaux, la procédure et la pratique des sections, et notamment les délais pour interjeter appel de leurs décisions, l’ordre de priorité pour l’étude des affaires et les préavis à donner, ainsi que les délais afférents; b) la conduite des personnes dans les affaires devant la Commission, ainsi que les conséquences et sanctions applicables aux manquements aux règles de conduite; c) la teneur, la forme, le délai de présentation et les modalités d’examen des renseignements à fournir dans le cadre d’une affaire dont la Commission est saisie; d) toute autre mesure nécessitant, selon lui, la prise de règles.

 

[14]           In any event, it is my opinion that Rule 7 does not prescribe an unfair procedure. Rule 7 emphasizes the importance of establishing the claimant’s identity and claim. It does not impose any absolute requirement upon a claimant to furnish such documents but it requires a claimant who does not furnish documents establishing identity and other elements of the claim to explain why they were not able to obtain them. Contrary to the applicant’s suggestion, this is a burden that any claimant can meet.

 

[15]           In the case at bar, the applicant has never said that he cannot produce such documents. Rather, he told the Board that he didn’t think that they were necessary.

 

[16]           In my opinion, the words “acceptable documents” in Rule 7 must be read in conjunction with section 170 of the Act which gives the Board a broad discretion to alleviate the burden of proof upon a refugee claimant in appropriate circumstances. Section 170 reads:

 

[17]           Rule 7 is a codification of the common law that existed under the Immigration Act. Before Rule 7 existed, the law required that claimants provide sufficient proof of their identity or explain the failure to do so (see, for example, Husein v. Canada (M.C.I.), [1998] F.C.J. No. 726 (T.D.) (QL); Salim v. Canada (M.C.I.), [1998] F.C.J. No. 1547 (T.D.) (QL); Yogeswaran v. Minister of Citizenship and Immigration, 2001 FCT 48; Keita v. Minister of Citizenship and Immigration, 2001 FCT 187).

 

[18]           Jurisprudence of this Court indicates that Rule 7 is also a matter of common sense as stated in Ortiz Juarez v. Minister of Citizenship and Immigration, 2006 FC 288:

[7]     The Applicants complain that there was no basis for requiring corroborative evidence since there is a presumption of veracity in favour of the Applicants. This submission is simply startling. The requirement for corroboration is only a matter of common sense. In The Law of Evidence in Canada, Sopinka, Lederman and Bryant, Toronto: Butterworths, 1999, 2nd ed., the matter is succinctly put at page 973:

 

The general rule is that the testimony of a single witness, if believed to the requisite degree of certainty, is sufficient to found a conviction or civil judgment. Because there may be concerns about the reliability of a witness' testimony -- perhaps the witness has a financial interest in the outcome of the proceedings or he or she is an accomplice -- the trier of fact may search for supporting evidence to confirm that witness' testimony. This search for confirmatory evidence is a matter of common sense.

 

 

 

[19]           In addition, it is interesting to note the similarity of section 106 of the Act, even though the provision is strictly concerned with the question of identity, which reads:

106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.

106. La Section de la protection des réfugiés prend en compte, s’agissant de crédibilité, le fait que, n’étant pas muni de papiers d’identité acceptables, le demandeur ne peut raisonnablement en justifier la raison et n’a pas pris les mesures voulues pour s’en procurer.

 

[20]           In my opinion, Rule 7 of the RPDR does not prescribe unfair procedures and so does not run afoul of paragraph 3(2)(e) of Act.

 

2. Internal Flight Alternative

 

 

[21]           The applicant has failed to show that the Board’s primary determination that his claim fails because he is not credible is erroneous. Accordingly, even if the Court were to accept all of the applicant’s criticisms of the Board’s IFA determination, the proposed application for judicial review would still necessarily fail. Therefore, the applicant’s attack on the Board’s IFA determination is not determinative.

 

* * * * * * * *

 

[22]           For all the above reasons, the application for judicial review is dismissed.

 

[23]           Counsel for the applicant submits the following questions for certification:

1.                Is Rule 7 of the Refugee Protection Division Rules ultra vires the Immigration and Refugee Protection Act, in that, it violates section 3(2)(e) of the IRPA?

 

2.                Will a Regulation or Rule, which conflicts with any of the “Objectives” listed in section 3 of the Immigration and Refugee Protection Act, enacted by the Governor in Council, pursuant to section 5(1) of the IRPA, be ultra vires of the Immigration and Refugee Protection?

 

 

 

[24]           Upon considering the written submissions made on behalf of the parties with respect to certification in this matter, I agree with counsel for the respondent that the proposed questions, given the particular circumstances of this particular case, do not transcend the interest of the parties to the litigation and do not contemplate issues of broad significance or general application (see Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4 (F.C.A.)). Accordingly, there will be no certification.

 

 

“Yvon Pinard”

 

Ottawa, Ontario

September 29, 2006

 

 

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-6808-05

 

STYLE OF CAUSE:                          HARMINDER SINGH UPPAL v. THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      September 8, 2006

 

REASONS FOR JUDGMENT:       Pinard J.

 

DATED:                                             September 29, 2006

 

 

APPEARANCES:

 

Mr. Jaswant Singh Mangat                                FOR THE APPLICANT

 

Mr. Kevin Lunney                                            FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

Mangat & Semotiuk                                         FOR THE APPLICANT

Barristers and Solicitors

Mississauga, Ontario

 

John H. Sims, Q.C.                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

 

 

 

Date: 20060929

Docket: IMM-6808-05

Ottawa, Ontario, the 29^th day of September 2006

Present:          The Honourable Mr. Justice Pinard

 

BETWEEN:

HARMINDER SINGH UPPAL

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

 

JUDGMENT

 

 

            The application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board dated October 19, 2005, wherein the Board found that the applicant is not a “Convention refugee” or a “person in need of protection” as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, is dismissed.

 

 

“Yvon Pinard”