Date: 20010514
Docket: IMM-3882-00
Neutral citation: 2001 FCT 472
Ottawa, Ontario, May 14, 2001
PRESENT: THE HONOURABLE EDMOND P. BLANCHARD J.
BETWEEN:
NARINDER SINGH
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7, as amended, of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (the Refugee Division) of July 4, 2000, in which board members Giovanna Allegra and Tony Manglaviti determined Narinder Singh (the applicant) not to be a Convention refugee, as defined by subsection 2(1) of the Immigration Act.[1]
FACTS
[2] The applicant, a citizen of India, is a 28- year-old Sikh from the Punjab. He claimed to have a well-founded fear of persecution if he returned to India for reasons of actual or imputed political opinion.
[3] The applicant was working on the family farm.
[4] He claimed that on May 29, 1995, Harinder and Jaswinder (his brothers) were arrested for having supported the Sikh independence movement. They were released after political authorities in their village intervened and a bribe was paid.
[5] On December 16, 1995, the applicant claimed that militant Sikhs turned up on the family farm and stole his all-terrain vehicle while he was out of town. After this incident, his two brothers were arrested. The applicant decided not to return home when he learned of his brothers' arrest.
[6] His brother Jaswinder was released and immediately fled the Punjab. He first settled in New Delhi and was later accepted in Canada as a refugee. Jaswinder was in fact accepted as a Convention refugee by the Refugee Division on February 25, 1997. As for his brother Harinder, he died after being mistreated by the police during his incarceration.
[7] In his Personal Information Form, the applicant stated that over three weeks had elapsed before he returned to the family home, which he only visited at night. Nevertheless, on February 19, 1996, the police stormed into the house in the middle of the night and arrested the applicant and his father for collaboration with Sikh militants.
[8] The applicant submitted that he was incarcerated for almost three months, until May 1996, and was beaten, tortured and threatened. He further claimed that he was released on condition that he report monthly to police authorities; that on his third monthly visit, he was beaten and told to disclose to authorities all the information his brother had on the Sikh movement and its militants.
[9] In short, the applicant claimed that he was arrested, incarcerated and beaten owing to his
family's political activities, and more specifically, because authorities believed his brothers were Sikh militants.
[10] Concerned about his personal safety, the applicant fled his home village to live with his uncle in Bombay, from September 1996 to October 1998.
[11] As a result of all these incidents, the applicant fled India on April 3, 1999. He arrived in Canada on April 4, 1999, and claimed refugee status, as defined by subsection 2(1) of the Immigration Act, that same day.
DECISION OF THE REFUGEE DIVISION
[12] Following an assessment of the record and the applicant's testimony, the Refugee Division found that the applicant is not a "Convention refugee", as defined by subsection 2(1) of the Immigration Act.
[13] The Refugee Division effectively determined that the applicant's testimony was neither plausible nor credible, and that his behaviour did not exhibit a fear of persecution. The Refugee Division therefore found that the applicant is not a Convention refugee.
STANDARD OF REVIEW
[14] This is a judicial review of a decision by the Refugee Division. The Supreme Court of
Canada clearly established that the correctness standard is applicable to determinations of law in that context. In Pushpanathan, Bastarache J. stated as follows:
I conclude that a correctness standard applies to determinations
of law by the Board.[2]
[15] It should also be noted that the standard of review for the assessment of facts remains patent unreasonableness. A number of cases have in fact reiterated that board members are in the best position to gauge the testimony of claimants. The Federal Court of Appeal stated, per Décary J.A.:
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.[3]
[16] The logical conclusion from that case is that as long as the board members' factual interpretations concerning subsection 2(1) of the Immigration Act are not patently unreasonable, they are not open to judicial review by this Court.
ISSUES
[17] Two issues were raised by applicant's counsel:
1. Judging from the behaviour of the agent of persecution, as put forth by the applicant, did the Refugee Division err by determining the applicant's testimony to be implausible and consequently undermining the applicant's credibility?
2. Did the Refugee Division consider all the evidence in the record?
ANALYSIS
[18] An analysis of the Refugee Division's decision shows that it found the applicant's testimony implausible. Only a patently unreasonable factual interpretation of the applicant's testimony would allow this Court to interfere with that finding of implausibility.
[19] Since credibility is at the root of testimony before the Refugee Division, this Court has repeatedly taken the position of MacGuigan J.A. in Sheikh,[4] that a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.
[20] As to the applicant's first issue, his counsel argued that the Refugee Division erred by focussing too heavily on the "behaviour of the agent of persecution" to make a finding that the applicant's testimony was implausible.
[21] Judging from its decision, the Refugee Division analysed the behaviour of the agent of persecution but recognized that the applicant could not be held accountable for its behaviour:
In assessing the credibility of the claimant's story, the panel must analyze the behavior of the agents of persecution. Although the claimant is not accountable for their behavior, the behavior must be such to be found plausible.[5]
[22] After making a contextual analysis of the Refugee Division's assertions, I have determined that the agent of persecution's behaviour is not at the root of the panel's decision; it is the credibility of the applicant's testimony and the facts put forward to support his narrative.
[23] The Refugee Division analysed the applicant's testimony in context and determined that he was not credible. It is not for this Court to substitute its assessment of the facts for that of the Refugee Division. In reviewing the record and the parties'arguments, I am satisfied that the Refugee Division's interpretation is not patently unreasonable.
[24] The other issue raised by applicant's counsel concerns the fact that the Refugee Division failed to consider all of the evidence in its reasons.
[25] It is well established that the Refugee Division is entitled to rely on documentary evidence in preference to that of the claimant.[6] Furthermore, in the absence of clear and convincing evidence to the contrary, the panel is deemed to have considered all of the evidence in the record.[7]
[26] It should also be noted that the Refugee Division can consider criteria such as plausibility, common sense and rationality in its reasons. As Pratte J.A. stated in Shahamati:
. . . we have not been persuaded that the Board's finding on credibility was either unreasonable or perverse. Contrary to what has sometimes been said, the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense.[8]
[27] As for this Court's intervention regarding the weight conferred on the documentary evidence by the Refugee Division and its assessment of that evidence, I find that its findings are not unreasonable, as MacKay J. stated in Ariff:
In regard to the applicant's perceived fear of persecution by the Sri Lankan army the panel concluded that the applicant's story about his difficulties with the army was implausible, for if the army had been concerned about his support for the JVP, or . . . , it would not likely have released him from custody, even on payment of a bribe.
. . .
. . . The tribunal, assessing that evidence with reference to its sense of reasonable conclusions, was not persuaded that the army would persecute the applicant if he were to return to Colombo. . . . The panel's conclusion does not seem so unreasonable as to warrant intervention by the court, even if on the same evidence the court might have come to a different assessment.[9]
[28] The Refugee Division's assessment of the evidence regarding the incidents related to the applicant's testimony is reasonable. Its decision in fact appears to be well founded in law and squarely based on the relevant documentary evidence to which it referred.
[29] By applying these principles to the facts of the matter, I am satisfied that the Refugee Division's factual interpretation is not patently unreasonable, and that its analysis and use of the documentary evidence was reasonable.
[30] For all these reasons, the application for judicial review is dismissed.
[31] No serious question was submitted for certification.
ORDER
THE COURT ORDERS that:
1. The application for judicial review of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board of July 4, 2000, in which board members Giovanna Allegra and Tony Manglaviti determined Narinder Singh, a citizen of India, not to be a Convention refugee, as defined in subsection 2(1) of the Immigration Act, is dismissed.
"Edmond P. Blanchard"
Judge
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3882-00
STYLE OF CAUSE: NARINDER SINGH v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 23, 2001
REASONS FOR ORDER AND ORDER BY BLANCHARD J.
DATED: May 14, 2001
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Lisa Maziade FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada FOR THE RESPONDENT
|
Immigration Act, R.S.C. 1985, c. I-2 2. (1) In this Act, "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, . . . . |
Loi sur l'immigration, L.R.C. 1985, c. I-2. 2. (1) Les définitions qui suivent s'appliquent à la présente loi. « réfugié au sens de la Convention » Toute personne : a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (...). |
[2] Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 50.
[3] Aguebor v. Canada (Minister of Citizenship and Immigration),[1993] F.C.J. No. 732, at para. 4 (C.A.); QL (F.C.J.).
[4] Sheikh v. Canada (Minister of Citizenship and Immigration), [1990] 3 F.C. 238 (C.A.).
[5] Applicant's record, Refugee Division's decision, at page 9.
[6] Zhou v. Minister of Citizenship and Immigration, [1994] F.C.J.. No. 1087.
[7] Hassan v. Canada (M.E.I.) (1992), 147 N.R. 317, at page 318.
[8] Shahamati v. Minister of Employment and Immigration, [1994] F.C.J. No. 415, at page 1.
[9] Ariff v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 256, at paras. 11and 12.