Date: 20031003
Docket: IMM-5245-02
Citation: 2003 FC 1146
OTTAWA, ONTARIO, FRIDAY, THIS 3RD DAY OF OCTOBER, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
IN THE MATTER OF the Immigration and Refugee Protection Act, 2001, as amended, S.C. 2001, c.27;
AND IN THE MATTER OF a decision of the Convention Refugee
Determination Division of the Immigration and Refugee Board regarding the claim to Convention Refugee Status of JOGA SINGH
BETWEEN:
JOGA SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Joga Singh (the "Applicant") is a Sikh male citizen of India. He arrived in Canada on April 12, 2001, after a three month stay in Russia. He claimed Convention refugee status on the basis of a well-founded fear of persecution at the hands of the Indian police due to his perceived political opinion. In its decision dated August 7, 2002, a two member panel of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), determined that the Applicant is not a Convention refugee.
[2] The Board denied the Applicant's claim to Convention refugee status because the Applicant was not credible and the evidence failed to establish that there was a serious possibility that he would be subject to serious harm amounting to persecution in India.
[3] In particular, the Board found that the alleged public murder of Khai, which was critical to the Applicant's claim, was not credible because of the inconsistencies and implausibilities in that story. In addition, the Applicant failed to mention this incident at the Port of Entry ("POE") when he was asked why he was claiming refugee status in Canada.
[4] The Board also found a number of implausibilities and inconsistencies in the Applicant's story, relating to his employment history, his testimony that militants visited his family's farm that was under police surveillance, his father's sale of the family farm without the police's knowledge, his delay in leaving India after the police began targeting him and his failure to make a refugee claim in Russia.
[5] The Applicant has applied to this Court for judicial review of the Board's decision.
Issues
[6] The issues for determination are:
1. Did the Board err in its adverse credibility finding?
2. Did the Board err in misconstruing or failing to acknowledge evidence before it in its findings surrounding the Applicant's delay in leaving India and his failure to seek refugee status in Russia?
Analysis
[1] For the reasons that follow, I am of the view that this application should not succeed.
Issue #1: Did the Board err in its adverse credibility finding?
[2] In the Applicant's submission, the Board made a number of credibility findings which were perverse, not supported by the evidence and simply not reasonably open to it. In particular, the Applicant points to the following errors:
· the Board failed to accept the Applicant's explanations for failing to mention the murder of Khai at the POE and why that incident was not published in the media; and
· the Board ignored the statement in the first paragraph of his Personal Information Form ("PIF") narrative regarding his work on the family farm.
[3] The Applicant submits that these errors are crucial as the Board's erroneous findings of fact go directly to the heart of the Applicant's claim and are sufficient to allow this application for judicial review (Maharajah v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 735 (C.A.) (QL)). Finally, the Applicant argues that, where the Board ignores the evidence before it and relies upon these findings when making an adverse determination as to credibility, the decision should be quashed (Frimpong v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 441 (C.A.) (QL); Toro v. Minister of Employment and Immigration, [1981] 1 F.C. 652 (C.A.); Rezaei v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 40 (C.A.) (QL)).
[4] The assessment of the credibility of the Applicant's testimony is particularly within the Board's jurisdiction (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.) (QL)). The appropriate standard of review of the Board's credibility findings is patent unreasonableness, which means that these findings should only be set aside if they were made in a perverse or capricious manner or without regard to the material before the Board (Medina v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 926 (C.A.) (QL); Dhillon v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 1040 (C.A.) (QL); Frimpong, supra). In this regard, I note the decision of Mr. Justice Lemieux in Rivan v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1815 (QL), where he adopted the comments of Mr. Justice Laskin, as he then was, in Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875:
...At the same time, the Board must be accorded the trust in careful and fair dealing with the cases that come before it. . . that its status as an independent court of record demands. Its reasons are not to be read microscopically; it is enough if they show a grasp of the issues that are raised be s. . . . and of the evidence addressed to them, without detailed reference. The record is available as a check on the Board's conclusions.
[5] Disagreement with the manner in which the Board weighed the evidence is not a ground for judicial review. Further, the Board is not obligated to accept every explanation offered to it by the Applicant and is entitled to reject explanations that it finds to be not credible based on inconsistencies, contradictions or implausibilities (Aguebor, supra; Rathore v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 42 (T.D.) (QL)).
[6] Relying on these principles, I turn now to consider the errors alleged by the Applicant.
Assassination of Khai
[7] The Board found the alleged assassination of Khai implausible for three reasons. The Applicant failed to mention this at the POE, the media did not report the event even though Khai was a former local political candidate who was assassinated at a vegetable market in front of about twenty people, and the Applicant described the assassins as militants at the hearing but not in his PIF.
[8] The Applicant submits that the Board erred by ignoring his explanations for why he did not mention the murder of Khai at the POE and why that murder was not published in the media.
[9] The Applicant explained that he did not mention this incident at the POE because it "did not occur in my mind at that time". He later explained the omission differently when he stated that he could not write very much in the POE form because there was limited space.
[10] In my view, the Board was entitled to draw an adverse inference from this inconsistency between the POE notes and the Applicant's PIF and oral testimony, particularly because all of the Applicant's problems with the police began when this alleged assassination occurred. According to his PIF, it was this event that caused the police to attribute a political opinion to the Applicant. This event, therefore, forms the foundation of his Convention refugee claim.
[11] The Certified Tribunal Record indicates that the Applicant was asked whether the assassination of this high-profile person was reported in the media. In its reasons, the Board concluded that the Applicant testified that the media did not report Khai's assassination. The Applicant submits that this finding is incorrect because he merely stated that he, personally, did not read any reports of it and that the police endeavoured to prevent the reporting of this event. In my view, the adverse inference that the Board drew from the Applicant's testimony is based on common sense and rationality. If someone as invested in the incident as the Applicant, having witnessed the event, did not read any reports of this former local politician's assassination, it is logical to infer that the media did not report this alleged incident. It is also illogical that the police would prevent the media from reporting this incident, since militants allegedly assassinated Khai and according to the Applicant's own testimony, the police opposed these militants. Thus, it was not patently unreasonable for the Board to find it implausible that there was no mention of this very public and dramatic assassination in the local media.
Inconsistencies Regarding Employment
[12] The Board drew an adverse credibility inference from the inconsistency regarding the Applicant's work history.
[13] On his PIF, the Applicant indicated that he drove a taxi from June 1995 until January 2001. At the hearing, the Applicant testified that he began driving a taxi in December 1998). He explained that the information on his PIF was incorrect. At the start of the hearing, however, after making a few minor amendments to his PIF, the Applicant affirmed that the information contained in his PIF was true and accurate. When asked what he did between his graduation in 1994 and December 1998, the Applicant stated that he helped his father on the agricultural farm. The Applicant did not put this information on his PIF because he was in "shock" and forgot.
[14] The Applicant submits that the Board erred by ignoring the first paragraph of his PIF narrative, where he stated that he "worked on the family farm as well as driving a taxi".
[15] I agree with the Applicant that, although he did not mention his farm work on the work history portion of his PIF, it was mentioned in his PIF narrative. However, that sentence, excerpted above, does not explain the inconsistency regarding the date the Applicant began driving a taxi. In my view, the Board was entitled to rely on this inconsistency for its adverse credibility finding (Rathore, supra). This is not a situation where the Board conducted a "microscopic" examination of irrelevant or peripheral issues to the Applicant's claim. The Applicant's employment history was relevant to his claim, as he alleged that the police deprived him of his livelihood by forcing him to drive them around in his taxi.
Other Credibility Findings
[16] I note that the Applicant does not challenge every adverse credibility finding made by the Board.
[17] In particular, the Applicant does not challenge the Board's findings regarding:
a) the number of policemen he was forced to drive around in his taxi;
b) the implausibility that militants would regularly visit his house when that house was under police surveillance; and
c) the implausibility that his father would be able to sell his farm without alerting the police.
[24] A review of the Certified Tribunal Record indicates that these findings were all open to the Board and were supported by the evidence.
Conclusion
[25] In conclusion on this issue, I am not persuaded that the Board's decision should be overturned; the Board's conclusions were reasonably open to it.
Issue #2: Did the Board err in misconstruing or failing to acknowledge evidence before it in its findings surrounding the Applicant's delay in leaving India and his failure to seek refugee status in Russia?
[26] The Board referred to the Applicant's failure to claim refugee status in Russia in support of its conclusion that the Applicant's fear of persecution was not well-founded.
[27] At the hearing, the Applicant testified that he was required to remain in an apartment during his entire stay in Russia. He was aware that Russia was not his final destination and he did not know whether he would be safe in Russia.
[28] The Applicant submits that the Board erred by ignoring his explanations. I disagree.
[29] Delay in applying for Convention refugee status is not an automatic bar to a claim for protection. However, it is a relevant and potentially important consideration. Ultimately, the Board must decide, based on the evidence before it, the significance of a delay to a particular case (Canada (Minister of Citizenship and Immigration) v. Sivalingam-Yogarajah, 2001 FCT 1018, [2001] F.C.J. No. 1414 (T.D.) (QL)). Moreover, the Board was entitled to rely on the Applicant's failure to make a refugee claim in Russia to doubt his fear (Ilie v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1758 (T.D.) (QL); Sellathamby v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 839 (T.D.) (QL)).
[30] In any event, it is apparent from the Board's reasons that this failure was not a significant basis for its decision that the Applicant does not have a well-founded fear of persecution. The Board based its decision on a number of implausibilities and inconsistencies in the Applicant's story, as well as his non-involvement in any political group. As a result, even if the Board did err by referring to the Applicant's failure to seek protection in Russia, this would not be a reviewable error.
Question for Certification
[31] Neither party proposed a question for certification. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed; and,
2. There is no question for certification.
"Judith A Snider"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5245-02
STYLE OF CAUSE: JOGA SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, OCTOBER 1, 2003
REASONS FOR ORDER
AND ORDER BY: SNIDER, J.
DATED: FRIDAY, OCTOBER 3, 2003
APPEARANCES BY: Mr. Ian R. Wong
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Mr. Ian R. Wong
Barrister & Solicitor
6 Adelaide Street East, Suite 710
Toronto, Ontario
M5C 1H6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20031003
Docket: IMM-5245-02
BETWEEN:
JOGA SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER