Ottawa, Ontario, August 24, 2006
Present: The Honourable Mr. Justice Shore
BETWEEN:
HARPREET KAUR SANDHU
LUCIANA KAUR SANDHU
NICOLAS NAVKERA SINGH
Applicants
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] It is generally accepted that a Board is in a better position to gauge the credibility of an application and to draw the necessary inferences. In the context of judicial review, credibility findings are reviewed on the patently unreasonable standard: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, online: QL. Paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F‑7, as am. 2002, c. 8., provides that this Court will only review such determinations if they are capricious, made in a perverse manner or without regard to the evidence.
(As stated in Grewal v. Canada (Minister of Citizenship and Immigration), 2005 FC 875, [2005] F.C.J. No. 1093 (QL), at paragraph 17.)
NATURE OF THE PROCEEDINGS
[2] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated December 29, 2005, according to which the applicants are not Convention refugees or persons in need of protection within the meaning of sections 96 and 97 of the Act.
FACTS
[3] The applicants, Navjot Singh Sandhu and his spouse, Harpreet Kaur Sandhu, are citizens of India. Their children, Luciana Kaur Sandhu and Nicolas Navkera Singh, are citizens of Argentina. They made a claim for refugee protection alleging a well-founded fear of persecution by reason of imputed political opinion. Ms. Sandhu and her children are basing their application on that of Mr. Sandhu.
[4] Mr. Sandhu alleged that he was a Spanish professor in Ludhiana, India, from January 2000. On February 11, 2004, the police allegedly arrested a student in his class, whose first name was Salim, who was suspected of illegal activity. Mr. Sandhu tried to intervene, but the police allegedly told him to shut up and then arrested him as well.
[5] At the police station, Mr. Sandhu alleged having been tortured, beaten and accused of helping militants. On February 14, 2004, he was allegedly released thanks to the intervention of his municipal councillor, on condition that he pay a bribe and report to the police station on March 15, 2004.
[6] On March 15, 2004, Mr. Sandhu reported to the police station, where he was allegedly questioned, detained, beaten and tortured once again. On March 17, 2004, he was allegedly released, thanks again to the intervention of the municipal councillor and the payment of a bribe. The police allegedly had him sign a blank sheet, took his fingerprints and picture and ordered him to report to the police station on April 15, 2004, with information concerning Salim and his accomplices.
[7] After each period of detention and torture, Mr. Sandhu was allegedly treated by a doctor for the injuries caused.
[8] On March 28, 2004, Mr. Sandhu and his family allegedly hid at the home of a cousin, Yadvinder Singh, in Chandigarh. Mr. Singh allegedly took steps to help the Sandhu family leave India. Mr. Sandhu left India for Canada on May 21, 2004, with the help of a human smuggler. Ms. Sandhu and their children joined him here on June 9, 2004.
IMPUGNED DECISION
[9] The Board was of the view that Mr. Sandhu was not credible on certain points at the heart of his claim for refugee protection. On several occasions in his testimony, Mr. Sandhu hesitated and was ill at ease. He changed his version of the facts and did not answer some questions.
[10] First of all, since Mr. Sandhu had testified that he and his wife held a visa for Argentina, valid until April 4, 2004, and that his children were citizens of Argentina, they all could have taken refuge there instead of remaining in India until after the expiry of their visa and then coming to Canada. The Board rejected Mr. Sandhu’s explanations on this point, ruling that this behaviour was inconsistent with that of a person who fears for his life.
[11] Secondly, the Board found it strange that Mr. Sandhu, who was wanted by the police, was able to leave India without any problem, using his own passport. In addition, when he was in hiding in Chandigarh, he paid his tax bill at Ludhiana. Ms. Sandhu’s explanations, which were hesitant and contradictory, did not satisfy the Board, which was of the opinion that the explanations had been made up.
[12] The Board also questioned why Mr. Sandhu did not claim refugee protection in England, where he had a stopover on his trip to Canada, or in Canada immediately after his arrival. The Board was not satisfied by Mr. Sandhu’s explanations, concluding that his behaviour was inconsistent with that of a person who fears for his life.
[13] The Board noted that Mr. Sandhu’s testimony was contradicted by the documentary evidence, which reported the end of terrorism in Punjab. The Board rejected an affidavit, a medical certificate and a photograph of a clinic submitted by Mr. Sandhu in support of his testimony concerning the medical treatments he allegedly received following two periods of detention. The Board determined that forged documents can be easily obtained in India.
[14] Finally, the Board concluded that Ms. Sandhu and her children had not had any problems in India. In addition, the children would not be in danger if they returned to Argentina, their country of citizenship.
ISSUE
[15] There is only one issue in this case:
1. Did the Board make an error subject to judicial review in rejecting the claim for refugee protection made by Mr. Sandhu and his family?
ANALYSIS
Legislation
[16] Under section 96 of the Act, a person is considered to be refugee if he or she fears persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion:
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96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. |
96. A qualité de réfugié au sens de la Convention – le réfugié – la personne 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 :
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. |
[17] Subsection 97(1) of the Act defines a “person in need of protection”:
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97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes – sauf celles infligées au mépris des normes internationales – et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
Standard of review
[18] In Grewal v. Canada (Minister of Citizenship and Immigration), 2005 FC 875, [2005] F.C.J. No. 1093 (QL), at paragraph 17, the Court ruled that the standard of review for credibility findings is that of patent unreasonableness:
It is generally accepted that a Board is in a better position to gauge the credibility of an application and to draw the necessary inferences. In the context of judicial review, credibility findings are reviewed on the patently unreasonable standard: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, online: QL. Paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, as am. 2002, c. 8., provides that this Court will only review such determinations if they are capricious, made in a perverse manner or without regard to the evidence.
(See also: Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (QL), at paragraph 4; Monteiro v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1258, [2002] F.C.J. No. 1720 (QL), at paragraphs 13-15; Singh v. Canada (Minister of Citizenship and Immigration), 2003 FC 1146, [2003] F.C.J. No. 1451 (QL), at paragraphs 10-11.)
Did the Board make an error subject to judicial review in rejecting the claim for refugee protection made by Mr. Sandhu and his family?
[19] The Board was of the opinion and stated in its reasons for decision that Mr. Sandhu was not credible on certain points at the heart of his claim for refugee protection. In addition, the Board noted on several occasions in its reasons for decision that Mr. Sandhu was hesitant and ill at ease, did not answer the questions asked and changed his version of the facts.
[20] In his written submissions, Mr. Sandhu and his family did not contest the conclusion reached by the Board to the effect that his testimony was not credible because he was hesitant, avoided questions and was inconsistent in his answers.
[21] The Federal Court of Appeal has already decided that this Court must not intervene in the case of such a conclusion by an administrative tribunal (Wen v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 907 (F.C.A.) (QL)).
[22] Mr. Sandhu and his family claim that the Board made a fundamental error in its reasoning in concluding that Mr. Sandhu and his family had valid visas to go to Argentina. They claimed that Ms. Sandhu did not have a visa for Argentina.
[23] A few pages of Mr. Sandhu’s passport are reproduced at pages 35 to 38 of the applicants’ record. At page 38, there is what appears to be a copy of a visa for Argentina, valid from April 4, 2003 to April 4, 2004. No translation of this document was provided. Mr. Sandhu and his family did not contest the fact that he held a valid visa for Argentina during the period in question.
[24] In support of their allegation to the effect that Ms. Sandhu did not hold a visa for Argentina, Mr. Sandhu and his family referred to pages 129 to 139 of the applicants’ record, which contain a copy of Ms. Sandhu’s passport. Page 132 of the applicants’ record appears to show that Ms. Sandhu had a visa for Argentina, issued in February 1998. However, because there is no translation of this document on record, it is impossible to be sure of its content. Likewise, page 131 of the applicants’ record contains notations, including the following: “P.C.C. issued to Argentina”, a line, a stamp and other notes. These notes indicate that Ms. Sandhu might have received another visa allowing her to travel to Argentina.
[25] Mr. Sandhu and his family have the burden of proving that the Board erred in concluding that Ms. Sandhu had a valid visa for Argentina. The evidence submitted in their application on this point is far from conclusive.
[26] In addition, when Mr. Sandhu left India for Canada, he was alone. His family joined him approximately one month later. He was therefore prepared to travel without his wife and children. Therefore, the question arises as to why Mr. Sandhu did not decide to leave India alone and take refuge in Argentina, where he had a valid visa. His wife and children, who were not in danger in India, could have joined him later, as they did when they came to Canada. Ms. Sandhu could then have undertaken steps to obtain a visa for Argentina.
[27] Accordingly, even if the Board had erred in stating that Mr. Sandhu and his spouse each held a valid visa for Argentina, the fact remains that Mr. Sandhu, who was the only person alleging persecution in India, had decided to remain there after he had been detained and tortured by the police on two occasions when he had the possibility of seeking refuge in Argentina.
[28] Considering the preceding, the Board had good reasons to conclude that the behaviour of Mr. Sandhu and his family was inconsistent with that of persons who fear for their lives or safety in their country.
[29] It seems that mistakes were made in the Board’s decision concerning the date on which Mr. Sandhu arrived in Canada and the time it took for him to claim refugee protection. In fact, as the Board mentioned in its decision and according to Mr. Sandhu’s Personal Information Form, he arrived in Canada on May 21, 2004 (and not in January 2004, as stated further on). He claimed refugee protection on July 5, 2004, approximately one and a half months after his arrival.
[30] In a recent decision, Grewal, supra, at paragraph 19, Mr. Justice Blanchard dismissed an application for judicial review in a case in which the administrative tribunal erred in concluding that the applicant had waited one and a half years, instead of six months, to claim refugee protection in Canada. On the subject of the tribunal’s error, Blanchard J. wrote the following:
The Board inquired as to the date when the Applicant filed his claim and was informed that it was March 12, 2004. It would appear that the Board's error is a miscalculation, as it had the information in the Applicant's documentary evidence which it sought to confirm during the hearing. On this point, I agree with the Respondent that the Board's error is not determinative of the issue since the essential element retained by the Board was the fact that the Applicant waited before claiming asylum. The Board also rejected the Applicant's explanation of the significant time gap between the Applicant's arrival in Canada and his claim notably, that he was unfamiliar with Canada's immigration system and that he feared he would also be in danger in Canada. In my view, it was open to the Board to reject the Applicant's explanation.
[31] In similar cases, Mr. Justice Michel Beaudry and Mr. Justice William McKeown respectively arrived at the same conclusion to the effect that a mistake concerning the time elapsed before claiming refugee protection is not necessarily decisive (Erulandy v. Canada (Minister of Citizenship and Immigration), 2002 FCT 790, [2002] F.C.J. No. 1056 (QL), at paragraphs 26-30; De La Torre v. Canada (Minister of Citizenship and Immigration), 2001 FCT 452, [2001] F.C.J. No. 735 (QL), at paragraphs 7-9).
[32] In this case, considering Mr. Sandhu’s lack of credibility and his behaviour, which was not consistent with a genuine fear, the Board’s error was not decisive.
[33] This Court agrees with the respondent that the case law clearly shows that the Board may take into consideration an applicant’s behaviour to assess his testimony and actions. In some circumstances, an applicant’s behaviour may be sufficient in itself to reject a claim for refugee protection. (Huerta v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 271 (F.C.A.) (QL); Ilie v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1758 (F.C.A.) (QL), at paragraph 15; Riadinskaia c. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 30 (QL), at paragraph 7; Cheema v. Canada (Minister of Citizenship and Immigration), 2002 FCT 2006, [2002] F.C.J. No. 1672 (QL), at paragraph 21; Monteiro, supra, at paragraph 18; Fernando v. Canada (Minister of Citizenship and Immigration), 2002 FCT 993, [2002] F.C.J. No. 1325 (QL), at paragraphs 4-7; Singh, supra, at paragraph 29; Nazir v. Canada (Minister of Citizenship and Immigration), 2005 FC 168, [2005] F.C.J. No. 182 (QL))
Although the members did not expressly refer to it in their decision, it is clear from the transcript of the discussion at the hearing that they found it hard to see the appellant's conduct as consistent and to reconcile it with the conduct of a person who says she fears for her life and fled her country to seek protection from the Canadian government. The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.(Huerta, supra)
[34] It is important to underline the facts in this case. Mr. Sandhu alleged having been detained and tortured by the police for the second time on March 15, 2004, and released on March 17, 2004. However, he waited approximately two months, until May 21, 2004, to leave his country.
[35] Mr. Sandhu had a valid visa for Argentina until April 4, 2004. However, instead of taking advantage of the opportunity to take refuge there, he preferred to wait several weeks to come to Canada. When Mr. Sandhu came to Canada, he waited one and a half months before claiming refugee protection. Even after his spouse and children arrived on June 9, 2004, they waited one month before claiming refugee protection in Canada.
[36] The Board could most certainly decide that the time elapsed before claiming refugee protection in Canada and the failure to go to Argentina were obviously inconsistent with the conduct of a person who fears for his life or safety in his own country. In this case, the behaviour of Mr. Sandhu and his family was sufficient in itself to have their claim for refugee protection rejected.
[37] Considering Mr. Sandhu’s hesitant and evasive testimony and the lack of a subjective fear on the part of Mr. Sandhu and his family, the Court agrees with the Minister of Citizenship and Immigration that the Board did not err in concluding that Mr. Sandhu was not credible “with regard to vital elements of his refugee protection claim”.
CONCLUSION
[38] In conclusion, Mr. Sandhu and his family did not show that the conclusions reached by the Board concerning their credibility and lack of subjective fear were patently unreasonable. It is therefore not necessary to answer Mr. Sandhu’s other arguments concerning the documentary evidence about their subjective fear.
[39] It is also clear that the Board did not err in concluding that Ms. Sandhu and her children are not in danger if they return to India. On this point, the Board underlined the fact that they never had any problems in India or in Argentina.
[40] Because the Board’s decision is not patently unreasonable, the intervention of this Court is not warranted. Accordingly, the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be certified. The parties did not suggest any question to be certified, and the Court is of the opinion this case rests on its own facts.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-405-06
STYLE OF CAUSE: NAVJOT SINGH SANDHU
HARPREET KAUR SANDHU
LUCIANA KAUR SANDHU
NICOLAS NAVKERA SINGH
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 16, 2006
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
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Michel Le Brun
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FOR THE APPLICANTS |
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Gretchen Timmins
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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MICHEL LE BRUN, LAWYER LaSalle, Montréal, Quebec
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FOR THE APPLICANTS |
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |