Date: 20020927
Docket: IMM-5527-01
Neutral Citation: 2002 FCT 1013
Ottawa, Ontario, September 27, 2002
Present: The Honourable Mr. Justice Blais
BETWEEN:
KEWAL SINGH and GURDEV KAUR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review under the authority of subsection 82.1(1) of the Immigration Act against the decision of the Convention Refugee Determination Division [the "Refugee Division"] rendered on November 7, 2001 wherein the Refugee Division determined that the applicant and his wife, are not Convention refugees.
FACTS
[2] The principal applicant was born on September 12, 1942 and his wife on January 1, 1943. Both are citizens of India and are of the Sikh religion.
[3] The applicants lived with their two (2) sons, Gurcharanjit and Daljit, and their respective families in the village of Ballowal.
[4] The principal applicant alleges that the police raided his house searching for his son Gurcharanjit as he was a member of the Akali Dal Mann Party and was deemed a separatist militant by the Punjabi police. During this event, his other son, Daljit was badly beaten. It was after this incident that Daljit disappeared.
[5] On September 10, 1998, the police arrested and tortured the principal applicant in order to ascertain the whereabouts of his sons. He was released upon the payment of a bribe.
[6] The applicants then moved to Ludhiana in November 1998, to Patiala in April 1999 and to Pilibhit in Uttar Pradesh in August 1999, and were able to elude the police.
[7] The applicants were staying with a friend, who informed them that they would have to leave his home for security reasons and suggested that they flee the country.
[8] An agent was contacted, who obtained false documentation for the applicants, and travelled with them to Canada.
[9] The applicants allege a well-founded fear of persecution because of imputed political opinions and their membership in two (2) particular social groups, being Sikhs and membership in the family.
ISSUE
[10] Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
ANALYSIS
[11] No, the Board did not err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it.
The credibility of the applicant
[12] The Board was dubious of the principal applicant's credibility based on certain omissions, discrepancies and inconsistencies. To illustrate, at page 2 of its decision, the Board came to the following conclusion:
In view of the improbabilities noted in the claimant's story and in view of the documentary evidence, the panel finds that the claimant's testimony is not credible.
and at page 4:
Other discrepancies have marred the credibility of the claimant: how he obtained his documents, why he did not have his ration card, how they could have travelled without knowing the names, date of birth, and address appearing in their passport, etc.
[13] The Board is entitled to consider contradictions or discrepancies in the evidence of a refugee claimant. This was illustrated in Rajaratnam v.Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1271 (F.C.A.):
If it is apparent that a decision of the Board was based on the claimant's credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court (Brar v. Minister of Employment and Immigration, Court File No. A-937-84, Judgment rendered May 29, 1986). Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility.
(emphasis added)
[14] The Refugee Division is entitled to decide adversely with respect to a claimant's credibility as the determination of the claimant's credibility is the heartland of the Refugee Division's jurisdiction since it is the trier of fact.
Preference toward documentary evidence
[15] The Board did in fact compare the applicant's testimonial evidence to the documentary evidence and determined that it preferred the latter over the former. The Board did not find the principal applicant's testimony to be convincing. It was therefore open to the Board members to prefer the documentary evidence to that of the testimony of the principal applicant. At page 3 of its decision, the Board wrote:
The panel also examined the documentary evidence in this case, in particular the medical certificates P-5 and P-6, which are based on the story told by the claimants and not ascertained in any way by either doctor. In view of the lack of credibility of the claimants in this case, the panel does not give probative value to these documents.
(emphasis added)
[16] In Zvonov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1089 (F.C.T.D.), Rouleau J. affirmed:
[para 15] Finally, I am not persuaded that the Board erred by preferring the documentary evidence to that of the Applicant. The Board members are "masters in their own house" and it is open to them to decide what weight to give the evidence; in the present case they accepted the Applicant's testimony but chose to place more weight on the documentary evidence.
(emphasis added)
[17] Specifically in regards to the issue of the medical certificates, in Danailov v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1019 (F.C.T.D.), Reed J. stated:
With respect to the arguments concerning the panel's findings on credibility, I read both the transcript and the Tribunal's decision before hearing counsels' submissions. I have now had the benefit of those submissions and could not conclude that the Tribunal's finding was other than entirely proper on the basis of the evidence before it. With respect to the assessment of the doctor's evidence, to find that that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.
(emphasis added)
[18] Also in Madahar v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1614 (F.C.T.D.), an issue arose in regards to the medical evidence presented to the Board. The Court made reference to Kalia v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1682 (F.C.T.D.) where Pinard J. concluded:
While the above is sufficient to dismiss this application, I also wish to address the Board's dismissal of the applicant's medical evidence. In my view, it was open to the Board to reject this medical evidence, given that the facts underlying the reports were found not to be credible.
(emphasis added)
[19] The Board found the documentary evidence to be reliable and preferred this evidence to that of the principal applicant's testimony. As stated clearly by the jurisprudence of this Court, the preference for certain evidence over other evidence is entirely within the purview of the Board.
State protection
[20] The Board was of the opinion that the applicants could avail themselves of state protection. At page 2 of its decision, the Board held:
Furthermore, the panel cannot concur with the claimant's allegations that they could not obtain protection in their country, if need be, as per the decision in Ward.
[21] In the case of Mendivil v. Canada (Secretary of State), [1994] F.C.J. No. 2021 (F.C.A.), Marceau, Stone and Desjardins JJ.A held:
[para 13] It has now been established in the case of Canada (Attorney General) v. Ward that state's inability to protect is an integral component of the notion of a Convention refugee, particularly in the light of the words well-founded."[See Note 15 below] The onus is on the claimant to establish this inability. La Forest J. makes it clear in Ward that "[a]bsent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant". Unless there is an admission by the state that it cannot afford protection, a claimant must provide "clear and convincing confirmation of a state's inability" to protect him.
(emphasis added)
Changed circumstances in the Punjab
[22] The Board made reference to changed circumstances in Punjab. At page 2, it can be read:
Nowhere throughout these documents and others consulted is it mentioned that incidents such as those described by the claimants are still happening today.
[23] This issue was discussed in the case of Singh v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 25 (F.C.T.D.), where Lutfy J. (as he then was) held:
The Tribunal, in my opinion, received sufficient evidence to support its decision concerning the changed circumstances in India. The record also establishes some contrary evidence on the same issue, including family correspondence warning the applicant not to return to India. However, it is not the function of this Court to determine whether a different view could have been reached from an analysis of the same evidence. In my view, there is no reviewable error in the manner in which the Tribunal reached its decision.
(emphasis added)
[24] In light of this conclusion, I find therefore that the Board did not err in referring to the changed circumstances in the Punjab in order to reach its decision.
The refugee status of the principal applicant's son, Gurcharanjit Singh
[25] The principal applicant claims that since his son Gurcharanjit was granted Convention refugee status in Canada in 1998, it should therefore be granted to him as he too claims to be the victim of persecution.
[26] The granting of Convention refugee status for one family member is not determinative for another, since the determination of Convention refugee status is performed on a case by case basis. In this regard, Nadon J.(as he then was) in the case of Rahmatizadeh v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 578 (F.C.T.D.) held:
[para 8] The mere fact of proving that his sister had been found to be a refugee does not carry a lot of weight, since the members of the Division who made that decision made it on the basis of the facts in the record.
(emphasis added)
[27] I find that no error upon which to interfere with the Board's findings has occurred in this case, and for these reasons, the application for judicial review should be dismissed.
ORDER
Therefore, this application for judicial review is dismissed.
No question for certification.
Pierre Blais
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5527-01
STYLE OF CAUSE:
KEWAL SINGH and GURDEV KAUR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: MONTRÉAL, QUÉBEC
DATE OF HEARING: September 25, 2002
REASONS FOR ORDER
AND ORDER BY: BLAIS J.
DATED: September 27, 2002
APPEARANCES BY: Me Styliani Markaki
For the Applicant
Me Daniel Latulippe
For the Respondent
SOLICITORS OF RECORD: Me Styliani Markaki
4 Notre Dame East, suite 902
Montreal, Quebec
For the Applicant
Me Daniel Latulippe
Department of Justice
For the Respondent