Date: 20000630
Docket: IMM-5981-98
Ottawa, Ontario, this 30th day of June 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
JASVIR SINGH HEER
Applicant
- and -
THE MINISTER
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Jasvir Singh Heer ("the applicant") seeks judicial review of the decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board dismissing his application for refugee status. His claim was rejected when the CRDD found that he was not credible. Counsel seeks to overturn those findings of lack of credibility. He has set himself a difficult task.
[2] Mr. Heer recounts that his family was politically active in the Sikh community in India. His brother Kuldip was suspected by police of being a member of the Sikh Student's Federation. In the February 1997 elections, Kuldip worked hard for the Akai Dal (Mann) party. In June 1997, the family home was raided by the police; the applicant and Kuldip were arrested and accused of sheltering militants. In August 1997, the family home was raided again and two other brothers were arrested for the same reason. When his father went to the police Station to protest, he too was arrested and beaten. The applicant and his brother Kuldip went into hiding and fled to another city. After being warned by a policeman to expect further arrests if he did not leave India, the applicant was sent out of the country, arriving in Canada on August 30, 1997.
[3] In its reasons, the CRDD is critical of the applicant's evidence. It finds fault with several elements of his testimony. It comments on the fact that he is rather articulate in his Personal Information Form but rather inarticulate in person. It notes that the applicant cannot identity which "Federation" his brother is a member of. It draws an adverse inference from the fact when the applicant says that his brother was arrested on "9-6-97" but is unable to identify the month by name. When asked about the source of the information in his personal narrative, the applicant initially says that it was told to him by his mother. Then he says that it was written for him by a friend. Initially, he said he did not know the name of the friend; later he says the friend's name is Singh Baba. The CRDD eventually concludes that the information for the applicant's narrative was not provided by any of the persons he identified.
[4] The applicant also submitted a psychologist's report to show that he suffers from post-traumatic stress disorder as a result of his experiences back home. The report makes note of the fact that the applicant cannot remember any of the significant dates in his history, but the report identifies the dates. If the applicant cannot remember, where did the psychologist get the information to prepare her report?
[5] Overall, the CRDD's conclusion is that the applicant's story is a fabrication, put together by someone else, which the applicant has memorized. The various items which the CRDD comments upon such as the date of the brother's arrest, the full name of the Federation, and the source of the information in the Personal Information Form are the evidence upon which the CRDD relies in coming to its conclusion that the story which the applicant told was a fabrication. Despite counsel's best efforts to explain away each item, he has not managed to persuade the Court that the CRDD came to a conclusion which was unreasonable.
[6] The CRDD is entitled to make findings of credibility and those findings should not be disturbed unless there is no support for them:
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. See Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.), where Mr. Justice Hugessen observed, at page 35:
...unless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence.
Rajaratnam v. Canada [1991] F.C.J. No. 1271 (F.C.A.) per Stone J.A.
[7] Counsel argued that the applicant's difficulties had to be considered in the light of the psychological report submitted on his behalf. The CRDD found that the report was entitled to little weight as it was based upon the acceptance of a version of events which the CRDD had rejected. It was the CRDD's function to determine the weight to be given to the psychologist's report. MacKay J. put it thus in Pehtereva v. Canada [1995] F.C.J. No. 1491: Assessing the weight to be given to evidence, including that of an expert, is a matter for determination by the tribunal that hears it. Only in a most extraordinary case would a court on judicial review intervene because of the weight assigned by the tribunal to evidence. Only where it is clear on review that the tribunal acted unreasonably, and in relation to evidence upon which its findings were found to be perverse, would a reviewing court intervene.
[8] An expert's report cannot be used to establish the factual foundation upon which it is based. If the factual foundation is rejected, as it was here, there is no basis for the expert's opinion. That is what the CRDD found. It was entitled to do so.
[9] The CRDD's disposition of this case is not unreasonable and should not be disturbed.
[10] No question was suggested for certification.
ORDER
The application for judicial review is dismissed.
"J.D. Denis Pelletier"
Judge
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5981-98
STYLE OF CAUSE: JASVIR SINGH HEER v.
MCI
PLACE OF HEARING: MONTRÉAL, QUÉBEC
DATE OF HEARING: DECEMBER 8, 1999
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PELLETIER DATED: JUNE 30, 2000
APPEARANCES:
ME. JEAN-FRANÇOIS BERTRAND FOR THE APPLICANT
ME. FRANÇOIS JOYAL FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
ME. JEAN-FRANÇOIS BERTRAND FOR THE APPLICANT
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada