Date: 19980604
Docket: IMM-3653-97
BETWEEN:
DILBAGH SINGH RANDHAWA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
JOYAL, J.
[1] This is an application for judicial review of a decision rendered by the Immigration and Refugee Board on April 21, 1997, which concluded that the applicant was not a Convention refugee as defined in s. 2(1) of the Immigration Act.
The Facts:
[2] The applicant, of the Sikh religion, is a 34 year-old citizen of India. He was a farmer and had worked with his father since leaving school. His family was a strong supporter of Akali Dal and an opponent of the Congress Party.
[3] On April 10, 1995, the applicant, his father and his brother were arrested. They were accused by police of giving food and shelter to Sikh militants. The applicant explained to the police that on the previous night, his maternal uncle, cousin and grandfather had come to spend the night. The police did not believe him and he, together with his father and his brother, were taken into custody.
[4] They were beaten and tortured for four days until bribes were paid by their family to police officers. When released, they were told by police to stay away from the village since the Congress Party would pressure for their rearrest and detention.
[5] They left the village and went to a relative's home. There, for some 15 days, they were treated for their injuries by a private doctor. For their own safety, the applicant and his brother decided shortly thereafter to leave India.
[6] They journeyed to New Delhi, where they met an agent who contracted to bring them to Canada. They left India on May 19, 1995. They first transitted through the Netherlands before landing in Ecuador the next day. Several weeks later, on June 22, 1995, they arrived in Nicaragua on foot. The brother stayed behind because he was sick, while the applicant continued on to Salvador and Guatemala. He remained in Guatemala for a month and then took a bus for Mexico. From there, he travelled on foot to Canada, arriving here on September 14, 1995.
[7] The applicant maintains that the police are still looking for him and that following his departure, his father was arrested and tortured. allegedly succumbing to his injuries on July 22, 1995.
The Board's Decision:
[8] The Board found that the claimant was not credible, that his claim lacked plausibility and was inconsistent with a legitimate fear of persecution in India. The Board based its conclusions on two inconsistencies between the claimant's PIF and the narrative in a medical report submitted by him. The Board also questioned why the claimant did not seek refugee status in the countries he travelled through during the four months he took to get to Canada.
The Issue:
[9] Did the Board err in fact and in law when it concluded that the applicant lacked credibility because of inconsistencies and improbabilities in written documentation submitted during the hearing?
Arguments of the Parties:
| (a) Contradictions between the PIF and the medical report |
[10] The applicant submits that the discrepancies between the PIF and the medical report are due to communication problems. He alleges that the documents were submitted through a translator and that the doctor's narration in his report was expeditious since it was not directly related to the patient's physical condition.
[11] According to the respondent, the contradictions in the PIF and the medical report are admitted by the applicant. The respondent submits that the medical report was submitted by the applicant himself and that the discrepancies were never mentioned until the Board pointed them out at the hearing. Lastly, the respondent argues that the translation problems alleged by the applicant were never corroborated by affidavit and that the applicant never complained of any communication difficulties with the physician.
(b) The Board ignored important evidence:
[12] The applicant alleges that the Board ignored evidence important to the case and favourable to his application. The medical report, heavily relied upon by the Board in its assessment of credibility, is not acknowledged in the summary of facts. The applicant submits that whatever the Board may find problematic on the credibility issue is counter-weighed by the more favourable aspects of the medical report, i.e. conclusions about torture.
[13] The respondent submits that it is within the Board discretion to evaluate the medical evidence. Since the Board did not find the applicant credible, it is not unreasonable that it did not give much weight to the medical report. The respondent concludes that since the applicant was found not to be credible, there is no evidence to link his physical condition with the alleged torture he sustained while in police custody.
(c) Interpretation of the documentary evidence on the Punjab:
[14] The Board's second ground for rejection of the applicant's claim for Convention refugee status comes from its interpretation of the information it received on the Punjab. The applicant submits that the information is not to the effect that Sikh militancy has faded out because a solution has been found to the problem, but rather because Sikh militancy has been eliminated. The applicant concludes that if he returns to India, he too could be eliminated. The applicants submits also that the documentation, read as a whole, does not justify the Board's conclusion that he was not beaten by the police or not at risk if he returns to India.
[15] According to the respondent the documentary evidence submitted with respect to the more current situation in the Punjab, indicates that Sikh militancy has been almost eliminated. The Board's conclusion, in regards to the documentary evidence, is not unreasonable, arbitrary or absurd, and does not attract the intervention of this Court.
(d) Asylum-seeking in other countries:
[16] The applicant objects to the negative inference drawn by the Board with respect to his peregrinations during the four months between his departure from India and his arrival in Canada.
[17] The respondent submits that when a claimant goes through a country which is a signatory to the Convention, it is his responsibility to seek asylum within that country as soon as possible. The speed of action on the part of the claimant may be reflective of the seriousness of his alleged fear of persecution. Even though the tardiness of a claim for refugee status is not in itself central to its validity, it is an pertinent factor to be weighted when evaluating a well-founded fear of persecution. And finally, the respondent submits that the Board's negative inference of the delays experienced by the applicant in reaching Canada must be interpreted in the context of the Board's conclusion on the issue of credibility and of fear of persecution.
Analysis:
[18] The determination of credibility is a question of fact1 which is within the Board's jurisdiction. Although in the area of plausibility, the unreasonableness of a decision may be more obvious, the Board is still in the best position to gauge the credibility of a claimant2. Contradictions or discrepancies in the evidence of a refugee claim are an accepted basis for a finding of lack of credibility3. The Court should not interfere in the Board's conclusion unless it is unreasonable4.
[19] While rendering its decision, a Board must respect certain conditions in order to "shield" itself from judicial review. A negative finding of credibility must be addressed in "clear and unmistakable terms"5, in regards to the totality of the evidence. The Board must give the claimant full opportunity to explain any contradictions in the evidence6, and in assessing that evidence, it should not apply western standards of rationality to the applicant's particular situation7.
[20] The applicant alleges that the discrepancies between his PIF and the medical report is due to translation problems. Unfortunately, the applicant never mentioned this to the Board when it inquired about those discrepancies, and since he never complained, one must assume that he was satisfied. This Court has often repeated that in order to argue a violation of natural justice due to faulty interpretation, an objection must be made at the first possible moment. Otherwise, the claimant is deemed to have renounced his right to a new hearing or to a new interpreter.
[21] Also, it is upon the applicant that rests the burden of demonstrating that the inferences drawn by the Board were unreasonable in regards to the material before it8. The fact that a Tribunal fails to recite all of the evidence when rendering a decision does not necessarily invalidate that decision. The question to be asked is whether the evidence not mentioned is so important and vital that failure to acknowledge it may constitute a reviewable error.
[22] In the present case, the Board did acknowledge the medical report but did not give it the weight that the applicant had wished. The Board did not ignore the evidence. As for the documentary evidence, the Board's conclusions thereon are not unreasonable, arbitrary or absurd, and do not require the intervention of this Court. And finally, the Board dutifully referred to the doctrine of Internal Flight Alternative. Some questions were asked of the applicant in this respect, but it is obvious that the Board was far from satisfied with his answers.
Conclusion:
[23] Counsel for the applicant was very deft and articulate in sowing seeds of controversy over the Board's decision. Taken individually, the points raised by counsel are not without merit. Yet the totality of these points, measured against the totality of the evidence and of the conclusions drawn thereon by the Board, are not, in my respectful view, sufficient to justify the Court's intervention by way of judicial review.
[24] The application for judicial review must therefore be denied.
L-Marcel Joyal
JUDGE
O T T A W A, Ontario
June 04, 1998.
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1 White v. R., [1947] R.C.S. 268.
2 Aguebor v. M.E.I. (1993), 160 N.R. 33 (F.C.A.).
3 Rajarathan v. Canada (1991), 135 N.R. 300 (F.C.A.).
5 Hilo v. Canada (1992), 15 Imm.L.R. (2d) 201 (F.C.A.).
6 Rajarathan v. Canada, supra.