Citation: 2006 FC 756
Montréal, Quebec, June 14, 2006
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division ("the Board") dated September 28, 2005, in which it determined that the applicant is not a Convention refugee nor a person in need of protection pursuant to ss. 96 and 97 of the Immigration and Refugee Protection Act ("IRPA").
FACTS
[2] The applicant is a 16-year-old citizen of India. According to his Personal Information Form (PIF) narrative, the applicant's father had been arrested by the police several times on the basis of his affiliation with the Dal Khalsa party. In July 2004, the applicant states that there was a raid on his family home, which his father escaped; but his mother and brother were arrested, then released with a bribe, and pressured to bring the father to the police within six weeks otherwise they would be arrested again. He states that the police threatened his mother and brother that they would bring him and his sister to the station as well.
[3] Since arriving in Canada, the applicant states that he was informed by his mother that she and his brother were beaten and sexually assaulted during police detention. His father was apparently arrested and released several times, and went into hiding; as a result, his mother and his siblings have been moving around, staying with relatives, to avoid the police.
[4] The applicant left India on July 23, 2004, and after a month long stay with a family in Kenya arranged by the agent, he travelled briefly through Zimbabwe and France to reach Canada on September 9, 2004. He claimed refugee status upon arrival, and his refugee claim was heard on August 16, 2005.
DECISION UNDER REVIEW
[5] In its decision dated September 28, 2005, the Board rejected the applicant's claim primarily on the basis of credibility issues. The Board found that the applicant's narrative statement that his father was in hiding was contradicted by his statement to the immigration officer that his father and his uncle had driven him to the airport when he left India. Confronted with this contradiction, the claimant declared that the agent told him to say so. The Board concluded that this was implausible, and that the agent could not have told the claimant to declare to the Canadian immigration authorities that he was running away from poverty and that his father and uncle drove him to the airport.
[6] The Board also considered a letter purporting to be from Dal Khalsa party, and found it to be self-serving; in the context of its findings on the contradictions in the applicant's evidence, it gave no probative value to it. In the result, the Board concluded that the applicant "did not offer any trustworthy evidence that he could be exposed to a risk to life and a serious risk of cruel and unusual treatment or punishment and a risk of torture if he were to return to India" and as such, rejected his claim for refugee status.
ISSUE
[7] The only issue to be disposed of in the context of this application is whether the Board erred in arriving at a negative credibility finding with regard to the applicant.
APPLICANT'S SUBMISSIONS
[8] The applicant submits that the Board erred by failing to acknowledge the applicant's age in its decision; the applicant argues that this was particularly relevant given that the applicant was travelling with an agent rather than with family or friends.
[9] The applicant also contends that the Board erred in its finding that the agent would not have given advice in the manner claimed by the applicant, as this Court has found that agents may advise not to mention police problems (R.K.L. v. Canada (Minister of Citizenship and Immigration.), 2003 FCT 116). The applicant argues that the Tribunal had an obligation to acknowledge the reality of how smugglers operate, particularly because the contradiction in evidence was the sole basis for the rejection of the applicant's claim. The applicant submits that it was an error for the Board to limit its analysis to this issue.
[10] Relying on the case of Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration.), 2004 FC 282, the applicant further submits that the Board erred by failing to raise the authenticity or accuracy of the letter purporting to be from the Dal Khalsa party before concluding that his document had no probative value.
RESPONDENT'S SUBMISSIONS
[11] The respondent submits that the Board was entitled to rely on criteria such as rationality and common sense in drawing its conclusions and did not err in finding the applicant's explanation for the contradictory evidence to be implausible and unreasonable. Relying on the case of Neame v. Canada (Minister of Citizenship and Immigration.), [2000] F.C.J. No. 378, the respondent argues that it is not an error for the Board to reach a conclusion on the basis of a single contradiction in the evidence when the contradiction concerns an important element of the claim.
[12] With regard to the letter purporting to be from Dal Khalsa, the respondent submits that the Board did not reject this evidence simply because it was self-serving, but rather gave it no weight after finding that the applicant's story was not credible, and as such, the letter contained false information. The respondent refers to the case of Sheikh v. Canada (Minister of Employment and Immigration.), [1990] 3 F.C. 238 (F.C.A.) for the proposition that where the evidence of a claim comes only from the applicant himself, a negative credibility determination of the applicant as a witness effectively amounts to a finding that there is no credible evidence at all.
ANALYSIS
[13] This case essentially turns on issues of credibility and on an assessment of facts. These matters are clearly within the purview of the Board; as the trier of facts, the Board is to be accorded a high degree of deference, and its decisions cannot be overturned unless they are perverse, capricious or based on erroneous findings of facts. This standard of review is mandated both by paragraph 18.1(4)d) of the Federal Courts Act, R.S. 1985, c. F-7, and by the functional and pragmatic analysis according to which questions of fact should only be reviewed upon a finding that the Board came to a patently unreasonable conclusion: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.); R.K.L. v. Canada (Minister of Citizenship and Immigration.), [2003] F.C.J. No. 162 (F.C.).
[14] First of all, it seems clear to me that the Board did acknowledge that the applicant was a minor. Although it did not go into the details regarding the applicant's age in its analysis, it did note that the claimant was a minor at the very start of its reasons, and accepted his passport as evidence of identity. Accordingly, the Board was aware of the claimant's age and sensitive to his situation in reaching its decision.
[15] Secondly, the Board was entitled to draw a negative inference as to the credibility of the applicant based on the inconsistencies between the Port of Entry notes and his narrative with respect to his father having seen him off at the airport. Not only did the applicant contradict himself, but when confronted with this inconsistency, his explanation was far from convincing. It is hard to understand why the agent would have told him to lie about this aspect of his story; the fact that the applicant's father was in hiding or detained could only have bolstered his refugee claim. Equally unexplainable is how the agent could have foreseen that question from the immigration officer. This is as difficult to believe as the direction apparently given to him by the agent that if asked why he came to Canada, he should give poverty in India as an answer. All of this looks like makeshift arguments.
[16] It is true that lies about travel documents or itineraries have often been found to be of peripheral and limited value when assessing the credibility of a claimant, in recognition of the fact that smugglers often provide false documents and advise their clients to destroy whatever identity documents they may have to cover their tracks. But this is not what we are talking about here. What is at stake is a central element of the applicant's story. This Court has recognized in a number of cases that the Board is entitled to assess the credibility of a claimant on the basis of a single contradiction, where the impugned evidence is a key aspect of the claim: see Nsombo v. Canada (Minister of Citizenship and Immigration.), 2004 FC 505; Chen v. Canada (Minister of Citizenship and Immigration), 2005 FC 767; Jumriany v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 683.
[17] Finally, the Board was entitled to reject a letter purporting to establish the membership of the applicant's father in a political party. It is true that authentic documents are subject to a presumption of authenticity. It follows that the Board has an obligation to notify the claimant of its concerns about the authenticity of such a document, as indicated by my colleague Justice Mosley in Sadeghi-Pari v. Canada(Minister of Citizenship and Immigration), 2004 FC 282. But the letter produced by the applicant the day of the hearing was not a state document. Moreover, the Board did not question its authenticity, but decided to give it no probative value because of the claimant's contradictory testimony. Such a finding was open to the Board; as the Federal Court of Appeal stated in Al-Shaibie v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1131, adopting the statement of Justice Nadon in Hamid v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 1293:
Once a Board, as the present Board did, comes to the conclusion that an applicant is not credible, in most cases, it will necessarily follow that the Board will not give that applicant's documents much probative value, unless the applicant has been able to prove satisfactorily that the documents in question are truly genuine. In the present case, the Board was not satisfied with the applicant's proof and refused to give the documents at issue any probative value. Put another way, where the Board is of the view, like here, that the applicant is not credible, it will not be sufficient for the applicant to file a document and affirm that it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to "offset" the Board's negative conclusion on credibility.
[18] For all of the foregoing reasons, I am of the view that the applicant has failed to demonstrate that the Board's credibility findings were patently unreasonable. This application for judicial review will therefore be dismissed.
ORDER
THIS COURT ORDERS that:
This application for judicial review be dismissed. No question of general importance has been raised by counsel, and no such question will be certified by the Court.
"Yves de Montigny"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6904-05
STYLE OF CAUSE: SUKHJINDER SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: June 12, 2006
REASONS FOR ORDER: de MONTIGNY J.
APPEARANCES:
| Styliani Markaki
|
|
| Alexandre Tavadia
|
SOLICITORS OF RECORD:
| Styliani Markaki Montréal, Quebec
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada Montréal, Quebec
|