Ottawa, Ontario, March 17, 2006
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision by the Refugee Protection Division (RPD) dated June 30, 2005. In this decision, the RPD denied the applicant’s refugee claim, determining that he is not a refugee or a person in need of protection within the meaning of sections 96 and 97 of the IRPA.
ISSUES
[2] The only issue is the following:
- Did the RPD make factual, procedural or evidentiary errors?
CONCLUSION
[3] For the following reasons, the application for judicial review is allowed and the matter is referred to the RPD for redetermination by a differently constituted panel. No question is certified.
FACTS
[4] The applicant is an Indian citizen, a member of the Shiromany Akali Dal Mann party. He claims to have been arrested, detained and tortured by the police at the beginning of 2004, as the police suspected that he had assisted terrorists. He says that he was released after paying a bribe and through the intervention of influential people from his village.
[5] In August 2004, terrorists allegedly raided the farm belonging to the applicant’s aunt, while he was visiting her. The terrorists then threatened the applicant and members of his family. The terrorists then fled by car, but were intercepted almost immediately by the police. The applicant and two of his cousins, Fauja Singh and Swaran Singh, had been arrested by the police, detained and tortured, until a bribe was paid for their release. Fauja Singh allegedly died from his wounds on August 9, 2004, after a stay at the hospital.
[6] On August 19, 2004, terrorists returned to the home of the applicant’s aunt to intimidate them and persuade them not to testify in Court. On August 20, 2004, torn between the threat of torture by the police and the terrorists’ threats, the applicant fled to New Delhi, to his uncle’s home. On September 8, 2004, the police, looking for the applicant, tortured the applicant’s father, who died from his injuries. On September 17, 2004, convinced that the police would do anything to find him, the applicant left his country for Canada and claimed protection on September 20, 2004.
RPD’S DECISION
[7] The RPD’s decision is based on the applicant’s lack of credibility. The RPD mentions the following factors to support this finding:
- The claimant stated at the hearing that his father was 90 years old at the time of his death, while the death certificate filed states that he was 80 years of age;
- The notes of the immigration officer do not mention that the applicant’s cousin died, or that the applicant’s father had been beaten by the police, and the claimant’s explanations in that regard were not plausible;
- It is not credible that the applicant’s father would have been beaten by the police, given the physical and mental condition of people his age;
- There is a contradiction between the immigration officer’s notes – stating that the terrorists asked the applicant’s cousin for the keys to his car – and his Personal Information Form (PIF) and his testimony at the hearing where, to the contrary, he stated that the terrorists took his car at gunpoint;
- The claimant did not file acceptable evidence of his cousin’s death, or evidence that he owned the car stolen by the terrorists.
ANALYSIS
[8] The appropriate standard of review for the RPD’s findings of fact is that of patent unreasonableness (Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at paragraph 10; Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.), at paragraph 4).
1. The age of the applicant’s father
[9] The RPD described as follows the facts relating to the age of the applicant’s father. It writes, at page 2 of its decision:
The claimant was asked the age of his father. He testified that his father was 90 years old. In Exhibit P-5 (his father Budh Singh’s death certificate) it is stated that he is 80 years of age and not 90.
[10] In my opinion, the RPD’s description of exhibit P-5 was incomplete. At page 93 of the record, we remark that the age of the applicant’s father appears in two places in the translation of the death certificate. In the column on the left, at line 5, 80 years old is indicated. In the column on the right, it appears that 80 years old is also indicated, but that information has been corrected by hand in such a way that the age reads 88. At line 5 of the original, we can see the number 88. The fact that the RPD only took into account a part of the document amounts to a patently unreasonable error. The RPD also made a patently unreasonable error in writing that the applicant’s credibility is affected by the fact that it is not plausible that the applicant’s father could have been beaten by the local police, on the pretext that he is old. The lack of justification to support such a finding of fact precludes me from agreeing with the respondent.
[11] Furthermore, the RPD’s description of the applicant’s testimony is also wrong. The applicant stated at the hearing that his father was “almost 90”, and not that he was 90.
[12] To counter this argument by the applicant, the respondent insisted on the fact that the date of death of the applicant’s father is not the same on all of the documents. In fact, we note that on page 11 of the record (applicant’s PIF), the applicant states that his father died on September 8, 2004. The death certificate (page 93, tribunal record) bears the same date. However, at page 74 of the record, the applicant indicated, rather, the date of March 16, 2003.
[13] This Court cannot rewrite the RPD’s decision and correct its shortcomings. The fact that the Court could identify additional reasons undermining the applicant’s credibility does not diminish the fact that the RPD’s reasons are wrong in the circumstances of this case.
2. The ownership of the vehicle
[14] The applicant claims that the RPD erred in writing that he had not adduced acceptable evidence of his ownership of the car stolen by the terrorists.
[15] Even if the RPD’s decision does not contain any explanation to help understand why the documents at pages 87, 88 and 89 (documents regarding the vehicle) of the RPD’s record were not considered acceptable, I do not think that this amounts to a patently unreasonable error. In fact, this document can only at best establish that the applicant once owned a vehicle, and not that it was the vehicle stolen by the terrorists. The RPD was not obliged to give more detailed explanations in that context.
3. The contradictions between the immigration officer’s notes, the PIF and the testimony
[16] With respect to the notes of the immigration officer (see in particular pages 63 and 64 of the RPD’s record), they are very cursory. The officer’s questions are short and suggest concise answers.
[17] The death of the applicant’s father and that of his cousin are significant elements of the applicant’s story. There is no doubt that omissions regarding essential elements of the claim may be considered by the RPD, especially when a question had been asked regarding the element that was omitted (see, inter alia, Eustace v. Canada (Minister of Citizenship and Immigration), 2005 FC 553, [2005] F.C.J. No. 1929; Chen v. Canada (Minister of Citizenship and Immigration), 2005 FC 767, [2005] F.C.J. No. 959, at paragraph 23). This is even more the case when there is a contradiction between the officer’s notes, the story in the PIF and the testimony at the hearing. In this case, it was an omission bearing on an important element of the claim, even if it was not central.
[18] Considering the circumstances, the reason relied on by the RPD – namely the applicant’s failure to mention the death of his father and his cousin – is not very convincing. The questions asked by the immigration officer were brief and direct, and the applicant did not have the opportunity to elaborate on all of the events that he claims to have experienced in his country. None of the immigration officer’s questions, as asked, allowed the applicant to relate that incident. Only the death of his cousin Fauja Singh could perhaps have been mentioned, but the questions seem to suggest to the applicant that his answers be very brief.
[19] The RPD alluded in its decision to a contradiction between the applicant’s PIF and the immigration officer’s notes. At page 3 of the decision, the RPD writes:
In his narrative and in his testimony, the claimant declared that in the August 4th, 2004, incident, the militants took his car at gunpoint. On page 2 of his Immigration Notes, exhibit A-2, page 3, “the militants asked my cousin for the keys of his car”.
Confronted, the claimant testified that he did not say that because his cousin did not have a car.
[20] Here again, I do not think that it is a very persuasive element, even though the contradiction in the evidence is real. In the transcript (pages 238 to 241 of the RPD’s record), the applicant is asked several questions, in such a way that we can infer that on August 19, 2004, when the terrorists showed up at the farm, they asked the applicant’s cousin for the keys to the car. The cousin then gestured to the applicant to give the keys to the terrorists. The applicant’s cousin allegedly acted as a physical intermediary between the applicant and the terrorists: the applicant gave the keys to his cousin, who gave them to the terrorists. In the immigration officer’s notes, we read that “the militants asked my cousin for the keys of his car”.
[21] In my opinion, it is a very minor contradiction that may be understood on reading the applicant’s testimony. Such a contradiction does not undermine the applicant’s credibility. The RPD should not be overly zealous in its pursuit to find inconsistencies where there are none (See, inter alia, R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162, 2003 FCT 116).
[22] For these reasons, it is my opinion that the RPD’s decision regarding the applicant’s credibility is based on certain errors of fact and on contradictions that are so minor that the decision cannot be upheld. The decision regarding the applicant’s credibility is patently unreasonable. Perhaps the RPD had valid reasons to find that the applicant was not credible, but these reasons are not included in its decision. The matter must therefore be referred back to the RPD to be reviewed by a differently constituted panel.
[23] The parties were invited to propose questions for certification. The applicant asked the following question:
[TRANSLATION]
Is the panel entitled to base one or several of its negative credibility findings on the absence of events or facts that had not been recorded by the immigration officer in her interview notes when those events or facts are recorded in the applicant’s Personal Information Form (PIF) if the applicant was not questioned specifically on those events and on those facts and when he was not given the right to counsel or sent any information to the effect that he could later be impeached in the context of his claim before the Refugee Protection Division (RPD) for not having revealed all of the facts or events that were known to his at the time of his examination before the immigration officer?
[24] To determine whether a question must be certified, we must refer to the tests established in Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, at paragraph 4. The question must transcend the interests of the parties to the dispute, be of broad significance and be determinative of the appeal.
[25] I do not think that the question must be certified since it is a question of fact and not of law. The assessment of the facts is a matter for the RPD, and it is the RPD’s responsibility to decide, in each case, whether or not it must determine that the claimant’s failure to mention a central element of the claim to the immigration officer is an element affecting his credibility. In certain cases, a fact can be so central that the fact of failing to mention it is a factor undermining the applicant’s credibility. In other cases, the omission would not support a finding that the applicant is not credible. Each factual situation is unique and the RPD’s assessment of it is subject to judicial review. The question as formulated therefore does not have broad significance justifying its certification since the RPD must decide credibility issues on a case-by-case basis. Further, this question would not be determinative of the outcome of the appeal considering the fact that other reasons justify referring the matter back to the RPD and that the application for judicial review is allowed.
JUDGMENT
THE COURT ORDERS THAT:
- The application for judicial review be allowed and the matter referred before a differently constituted panel.
Certified true translation
Kelley A. Harvey, BCL, LLB
SOLICITORS OF RECORD
DOCKET: IMM-4446-05
STYLE OF CAUSE: JASWANT SINGH
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 23, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
DATE OF REASONS: March 17, 2006
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
IAN DEMERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANT
Montréal, Quebec
JOHN M. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec