Date: 20040916
Docket: IMM-6792-03
Citation: 2004 FC 1256
Montréal, Quebec, September 16, 2004
Present: The Honourable Mr. Justice Simon Noël
BETWEEN:
SUKHMAN SINGH SAHOTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] 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 by the Refugee Protection Division of the Immigration and Refugee Board (panel) dated August 21, 2003. In that decision, the panel determined that the applicant was not a "Convention refugee" under section 96 of the Act or a "person in need of protection" under subsection 97(1) of the Act.
ISSUE
[2] Did the panel err in unfairly undermining the applicant's credibility without regard to the evidence and his testimony?
[3] For the following reasons, I answer this question in the negative and the application for judicial review will therefore be dismissed.
THE FACTS
[4] The applicant, a citizen of India, states that he left his country because he had been accused of collusion with the militants of the Babar Khalsa Jathebandi group, which is why the police had severely tortured him. He alleges that he has a well-founded fear of persecution based on his political opinion and actions. Moreover, he alleges that he is a "person in need of protection" because he is in danger of being tortured if he were to return to his country.
[5] The applicant also comes from a Sikh and Hindu family of farmers and he worked as a transport truck driver. He alleges that the events on which his claim is based took place in large part mainly in Punjab between June 17, 1999 and July 30, 2002, the date he left his country. He stated that he had been arrested three times: June 17, 1999, August 15, 2001 and January 31, 2002, and that these arrests were followed by periods of detention during which he had been seriously tortured. After each arrest and torture, the most cruel of which was the third, on January 31, 2002, the applicant's physical condition was such that he received medical treatment. Furthermore, the local authorities fingerprinted him, took his photo, made him sign a blank paper and required him to pay bribes to obtain his release.
IMPUGNED DECISION
[6] The panel, though satisfied with the applicant's identity, determined on the basis of the differences noted between the statements that he made in his Personal Information Form (PIF) and those found in the immigration documents filled out at the Port of Entry, that his testimony was not credible. The panel said that it was stunned that in the Port of Entry documents the applicant never referred at all to the cruel abuse alleged during each of his arrests (pages 2 to 4 of the reasons for the decision). The panel found it implausible that the applicant, if he had really been tortured as he described in his PIF, would have omitted it in the document entitled "Schedule 1 - Background Information", filled in the day after his arrival in Canada (page 4, paragraphs 3 and 4 of the reasons). The panel also determined that it was not plausible that an individual who had been subjected to torture like the torture inflicted by the Punjab police (known for its brutality and savagery), would have stayed on to be arrested on two more occasions (pages 4 and 5 of the reasons).
[7] Moreover, the panel did not assign any probative value to the documents filed into evidence by the applicant (page 5, paragraphs 5 and 6; page 6, paragraphs 1 and 2) and did not believe that he had left his country on July 30, 2002, because he did not file any evidence establishing the date of his departure from India. As for the application of section 97 of the Act on the ground that the applicant is a "person in need of protection" because he would be interrogated and consequently tortured if he were to return to India after making his refugee claim in Canada, the panel determined after analyzing the documentary evidence in the record:
Actually, those who may have problems are those who leave the country then return in contravention of Indian laws. Such people could face legal proceedings, but that is a law of general application, and constitutes neither persecution nor torture.
SUBMISSIONS OF THE PARTIES
[8] The applicant disputes the filing and use of information contained in the Port of Entry documents for the purpose of determining that he lacks credibility. He alleges that it was unreasonable for the panel to determine that his story was made up simply because in the Port of Entry documents he did not mention being tortured following his arrests by the Punjab police, and that the panel could not find that it was implausible that he had not mentioned torture in these documents because the form did not have enough space to provide all of the details.
[9] The applicant also points out that the questions that he was asked were to ascertain whether he had been arrested, detained or put in prison and that he relied on his interpreter's explanations to fill out the form. At paragraphs 28 and 29 of his memorandum, the applicant alleges that the panel should not have held it against him that he could have subpoenaed the interpreters to the hearing since "[TRANSLATION] the IRB does not appear to share this point of view". The applicant also claims that he gave explanations and details regarding his detention to the officer at the Port of Entry and that he had specified that he had been illegally detained in the form that he filled out the day after he arrived in Canada.
[10] The respondent relies on Ilunga v. Canada (Minister of Citizenship and Immigration), 2003 FC 1289, [2003] F.C.J. No. 1653 (QL), at paragraph 4 to submit that the standard of review which applies to questions of fact addressed by the panel is whether the panel's findings were perverse or capricious or made without regard for the evidence before it. According to the respondent, the applicant has clearly not met his burden of establishing that the decision was based on an erroneous finding of fact, made in a perverse or capricious manner, or without regard to the material before it.
[11] Relying on the decisions in Ilunga, supra, Kandot v. Canada (Minister of Citizenship and Immigration), 2003 FC 1275, [2003] F.C.J. No. 1600 (QL) and Ndlovu v. Canada (Minister of Citizenship and Immigration), 2003 FC 851, [2003] F.C.J. No. 1091 (QL), the respondent contends that it is well established in the case law that the applicant's failure to refer to the alleged torture in the documents he filled out at the Port of Entry may be considered by the panel in assessing the credibility of a refugee claimant. The respondent argues that the specialized tribunal must assess the plausibility of the evidence filed by the applicant, make the necessary findings and, as in this case, duly state in its reasons that the questions asked in the documents at the Port of Entry were open questions on a form with sufficient space for the applicant to state at the very least that he had been severely tortured repeatedly by Punjab police. Furthermore, the panel considered the explanation given by the applicant to justify these omissions in the Port of Entry documents including those related to the translation, but did not find that it was satisfactory.
[12] The respondent also contends that the panel cannot be challenged because the finding of a lack of credibility is also based on the panel's assessment of the applicant's behaviour, which it found inconsistent with that of a person claiming to have been arrested and tortured in his country, since it was not plausible that a person who had been tortured by the Punjab police would have stayed only to be arrested on two other occasions. According to the respondent, the evidence as a whole could reasonably lead the panel to find that the applicant lacked credibility because the omissions in the Port of Entry documents were important and the identified implausibilities were not unreasonable.
ANALYSIS
[13] It is well established that in matters of credibility, like in this case, the panel is in a better position to "gauge the credibility of an account and draw the necessary inferences". As held in Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.), as long as the inferences drawn by the tribunal are not so unreasonable as to warrant the Court's intervention, the findings of the specialized tribunal are not open to judicial review.
[14] In my opinion, all of the arguments regarding the applicant's credibility are related to the assessment of the evidence and the facts. The panel's determination that the applicant's evidence was not trustworthy was based on the applicant's behaviour, the inconsistency between the PIF and the other documents as well as on a number of implausibilities in his testimony. The panel based its decision on the evidence in the record and interpreted it as it saw fit. Contrary to the applicant's submissions, the panel did not fail to consider the explanations given by the applicant, but simply was not convinced or persuaded by them.
[15] In this case, the applicant has the burden of establishing that the inferences could not reasonably have been drawn by the panel. Based on my assessment of the evidence filed, the applicant has not met this burden. The panel substantiated its decision very well by stating in clear and unequivocal terms the reasons for which it doubted the truthfulness of the applicant's allegations and the applicant's credibility. The panel could take into account the many disparities between the applicant's testimony, the statement at the Port of Entry, and his PIF. I consider it perfectly reasonable that the applicant was criticized for not talking about or describing the torture that he underwent during the arrests at his interview with the immigration officer (on September 18, 2002) and that this led to a negative finding on credibility. It is unthinkable that the applicant, having suffered such abuse, would not have mentioned it when he was asked to do so, especially considering that he thought it appropriate to do so in his PIF dated October 10, 2002.
[16] I also paid particular attention to the other findings in the panel's decision (the issue of interpreters, the lack of subjective fear, etc.) and I consider them to be adequate and justified by the facts of the case. As a whole, this decision does not warrant the intervention of the undersigned and I consider that the applicant did not meet the burden he was supposed to have met.
[17] The parties were asked to submit to me questions for certification but no question was submitted.
ORDER
For all of these reasons, the application for judicial review is dismissed and no question will be certified.
"Simon Noël" Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6792-03
STYLE OF CAUSE: SUKHMAN SINGH SAHOTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 14, 2004
REASONS FOR ORDER
AND ORDER: SIMON NOËL J.
APPEARANCES:
Jean-François Bertrand FOR THE APPLICANT
Lucie St-Pierre FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec