Citation: 2003 FC 1473
Ottawa, Ontario, the 16th day of December, 2003
PRESENT: The Honourable Mr. Justice Michel Beaudry
BETWEEN:
SUKHWINDER SING TOOR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant seeks judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated October 28, 2002. In that decision, the Board found the Applicant not to be a Convention refugee or a person in need of protection.
ISSUE
[2] Did the Board base its decision on an erroneous finding of fact that was made in a perverse or capricious manner, or without regard to the material before it?
[3] After carefully analysis of the parties' arguments and evidence on record, I answer that question in the negative.
BACKGROUND
[4] The Applicant is a citizen of India and of the Sikh religion. He alleges a well-founded fear of persecution from the Indian police by reason of his imputed political opinion and his membership in a particular social group, that is, Sikhs suspected by police of collaborating with militants. The Applicant also claims to be a person in need of protection within the grounds set out in subsection 97(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[5] The Applicant claims that he and his family were harassed by the police, beginning with an incident in November 1990 when he was beaten by the police after they had discovered militants hiding near his house. The police fractured his arm in this incident, an injury which the Applicant claims resulted in skin graft surgery, as his arm was so badly beaten that it became infected and the skin would not heal itself.
[6] The Applicant claims that his older brother and cousin were members of the All India Sikh Students Federation (the "AISSF"). The Applicant's cousin was killed in a protest in 1986 and the Applicant alleges his brother was arrested and tortured by the police on multiple occasions in the 1990s. The police accused the Applicant's brother of joining with militants who had staged a bomb blast at a railway station.
[7] The Applicant claims that he was arrested and tortured by police in February 1998, and questioned about his brother's and uncle's suspected involvement with militants. His family secured his release through payment of a bribe. After this point, the Applicant claims that the police raided his family's house every month or two months.
[8] In 1999, the Applicant and his brother opened a restaurant business. On August 22, 1999, the Applicant claims that police raided his restaurant, beat workers and questioned customers. He and his brother were then arrested and questioned about their relationship with militants who had apparently eaten at their restaurant. The Applicant claims to have once again undergone torture.
[9] According to the Applicant, the police continued to harass his family at home and at his restaurant. In March 2000, the police discovered a stolen car near the Applicant's restaurant that allegedly belonged to militants. His brother was arrested at this time. The Applicant claims that the police harassment continued through 2000, negatively affecting his restaurant business. The Applicant attempted to launch a complaint of the police harassment with the "Khalra Action Committee" on January 28, 2001, however, the office was at that time closed.
[10] The next day the police raided his home. The Applicant was not home at the time, however, they arrested his brother. At this point, the police threatened his mother that they would kill him if the Applicant attempted to take action against them. The Applicant did not return home and stayed at an acquaintance's house. The Applicant claims that the police returned to his family house in February 2001 and beat his mother. The Applicant called his family, learned that his brother had not been released and decided that he needed to leave India.
[11] The Applicant left India on May 22, 2001 and arrived in Canada that same day. On May 23, 2001, he made his claim for Convention refugee status. The Applicant's hearing before the Board took place on September 23, 2002.
THE BOARD'S DECISION
[12] With respect to the ground of imputed political opinion, after analysing the documentary evidence, the Board concluded that it was implausible that the Applicant would be targeted by the Indian police for anything related to the AISSF. The Board found that the documentary evidence showed that the AISSF were no longer perceived by the Indian police as being active in violent, militant activities. The Board found that neither the Applicant's cousin, who had been killed in a 1986 protest, nor his brother, were high profile members of political organizations. The Board concluded that these members of the Applicant's family did not have the kind of political profile that could potentially put him at risk of persecution.
[13] With respect to the claim that he would be persecuted due to his perceived collaboration with militants who ate at his restaurant, the Board found that in light of the current documentary evidence, it was implausible that the Indian authorities would target him. The Board concluded as follows at pages 1-2 of its reasons:
With respect to the second issue, namely the claimant being targeted because militants ate at his restaurant and an incident involving a stolen car which was found in the parking lot of the restaurant, the panel reviewed the documentary evidence and finds it implausible that authorities would target him. According to the documentary evidence, the militant movement had effectively been broken by police by late 1992, early 1993. After that time, the police and army were principally concerned with isolated operations and tracking down the few remaining high profile militants. Exhibit A-11³ is explicit in its findings, families are not being asked to provide food, shelter or transportation to militants. The claimant's allegation that police targeted him because militants ate at his restaurant are not reflective of the current situation.
[Footnote omitted]
APPLICANT'S SUBMISSIONS
[14] The Applicant submits that the Board failed to understand the basis of the Applicant's claim, as being targeted by the Indian police because he was suspected to have aided militants. The Applicant suggests that the Board erroneously understood that his claim was based on his brother's membership in the AISSF, rather than on a series of other events beginning in November 1990, in which the police suspected the Applicant of collaborating with militants.
[15] The Applicant also argues that the Board failed to consider another reason for his alleged persecution, that is, that the Applicant had attempted to launch a complaint against the police in January 2001. The Applicant refers to documentary evidence before the Board that speaks of situations where families who attempted to lodge formal complaints were subjected to police harassment.
[16] Next, the Applicant submits that the basis of the Board's decision was implausibility findings, rather than credibility findings. The Applicant argues that this calls for a less deferential stance from this Court on judicial review: Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238(F.C.A.).
[17] The Applicant argues that the Board failed to consider all the evidence before it and based its conclusions on a selective reading of the evidence. The Applicant submits that evidence of an applicant's particular situation cannot be considered implausible only because it is contrary to the general documentary evidence about a country. In support of this argument, the Applicant relies on Irripugge v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 47 (F.C.T.D.) and Karamjit Singh v. Canada (Minister of Citizenship and Immigration), 2001 FCT 344, [2001] F.C.J. No. 604 (T.D.) (QL).
[18] The Applicant submits that the Board acknowledged that the expert documentary evidence was divided as to whether Sikhs are at risk today in Punjab and that although the documentary evidence stated the overall human rights situation in Punjab was "improving", the Board did not consider that the situation could still be dangerous. The Applicant also argues that the Board's conclusion that "militancy has been virtually eliminated" in Punjab, does not consider whether the police continue to harshly treat those they suspect as being involved in militancy.
[19] The Applicant submits that the Board concluded that the evidence demonstrated that certain groups of people were still at risk, being those linked by police to "high profile militants". The evidence relied on by the Board, in particular a Danish report, confirmed that the police regularly tortured suspects for information. The Applicant also argues that the Board stated that the evidence showed that "relatives of a suspected militant might have problems with the police". The Board concluded that since the Applicant was never, himself, politically involved or had any official charges brought against him, he would not have problems with the police. The Applicant submits this is an error, as the Applicant's claim centered around his suspected involvement with militants.
[20] Finally, the Applicant argues that the Board ignored certain evidence before it, namely the photographs filed by the Applicant which show scars to his body. While the Board does not have the obligation to comment on every piece of evidence, the Applicant contends that it must do so in certain circumstances. The evidence was objective and "highly corroborative" of the Applicant's allegations, therefore, in the Applicant's submission, the Board should have acknowledged and commented upon it in its reasons. In this regard, the Applicant relies on Numbi v. Canada (Minister of Citizenship and Immigration) (1999), 163 F.T.R. 319 (F.C.T.D.), Atwal v. Canada (Secretary of State) (1994), 82 F.T.R. 73 (F.C.T.D.) and Ijagbemi v. Canada (Minister of Citizenship and Immigration),2001 FCT 883, [2001] F.C.J. No. 1266 (T.D.) (QL).
RESPONDENT'S SUBMISSIONS
[21] The Respondent argues that in order for this Court to intervene, the Applicant must do more than simply disagree with the credibility findings of the Board. The Applicant must demonstrate that the Board's credibility findings are patently unreasonable: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. This Court should not intervene on plausibility and credibility findings of the Board unless such findings are "so unreasonable" that they warrant such intervention: Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (C.A.) (QL). The Respondent further relies on Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108 (C.A.) (QL), where the Federal Court of Appeal recently held that factual findings of the Board attract a deferential standard of review, that is, patent unreasonableness.
[22] The Respondent submits that the Board is entitled to prefer the documentary evidence over the Applicant's testimony. In support, the Respondent relies on Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (C.A.) (QL). Further, this Court must take into account that the Board has expertise in weighing all the evidence before it: Singh v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 989 (T.D.) (QL) and Ganiyu-Giwa v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 506 (T.D.) (QL).
[23] The Respondent states that the Board did not base its decision solely on the allegation that the Applicant would be targeted due to his family's political involvement, but also considered the Applicant's claim that the police perceived that he was collaborating with militants. The Respondent also argues that since the Board did not find the incidents of the Applicant's alleged persecution credible, then there was no need for the Board to consider the Applicant's attempt to launch a complaint against the police as a further ground of persecution.
[24] The Respondent submits that the Board need not mention every piece of evidence in its decision, as the Board is presumed to have weighed and considered all the evidence put before it, unless the contrary is shown: Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL). In this case, the Board was not required to refer to the photographs of the Applicant's scarred body. The Respondent argues that there was no confirmation that such photographs were even of the Applicant, or any corroboration that the scars were the result of police torture.
[25] The Respondent argues that the Applicant has failed to demonstrate that the Board's findings were made in a perverse or capricious manner or without regard to the material before it. Therefore, the Respondent submits that this case does not warrant the intervention of this Court.
ANALYSIS
[26] The standard of review applicable to findings of fact of the Board, is that of patent unreasonableness: see Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.) (QL). The Applicant suggests, relying on Giron, supra, that a less deferential standard of review should apply to implausibility findings, in contrast to credibility findings of the Board. I decline to accept this argument, in light of the Federal Court of Appeal's comment on Giron in Aguebor, supra. In Aguebor, supra, the Federal Court of Appeal stated as follows at paragraphs 3-4:
It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[27] The Applicant's submission that the Board failed to consider the ground that he was at risk of persecution due to the police's suspicion that he was aiding militants is without merit. The Board's reasons specifically refer to this allegation and state that the Board prefers the documentary evidence over the Applicant's.
[28] The Applicant's submission that the Board failed to consider the fact that he had attempted to launch a complaint against the police in January 2001, as another ground of alleged persecution, is also without merit. The Board found it implausible that the incidents described by the Applicant had occurred, given the documentary evidence concerning Punjab in the late 1990s. The fact that the Board did not mention that it found it implausible that the Applicant had attempted to launch a complaint against the police conduct, that the Board had already found implausible to have occurred in the first place, is not a reviewable error.
[29] In my opinion, the Board is entitled to a great deal of deference with implausibility findings, however, its reasons must indicate why it found the Applicant's testimony to be implausible. The Board is entitled to prefer the documentary evidence over an applicant's testimony, Zhou, supra, but it must give clear reasons for so doing: Karajmit Singh, supra and see also Okyere-Akosah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 411 (C.A.) (QL).
[30] In this case, the Board's reasons do explain why it found the Applicant's allegations implausible in light of current country conditions. The Board referred to documentary evidence that stated that the police, after early 1993 were principally concerned with tracking down the few remaining high profile militants and that the militant movement had been effectively broken by the police by early 1993. The allegation that the police would target the Applicant because militants ate at his restaurant was therefore found to be implausible. This Court cannot intervene when such finding is sufficiently explained in the Board's reasons, and the finding is not patently unreasonable.
[31] Concerning the submission dealing with the Board's failure to mention the photographs tendered by the Applicant, I find that the Applicant has not shown that this evidence was so important and "directly relevant to the central issue" of his claim (Atwal, supra, para. 10, Ijagbemi, supra, para. 7), that the Board's failure to mention these photographs in its reasons raises an apprehension that it failed to consider them in reaching its decision. While these photographs do show that the Applicant had serious skin graft surgery at some point in the past, and in this sense, they are apparently corroborative of past persecution, such photographs could not have changed the Board's assessment of the current country conditions in Punjab today. The Board stressed that the Applicant's allegations were not reflective of current country conditions and therefore corroboration of past persecution was not directly relevant to the central issue of his claim, that is, whether he would face persecution in Punjab today.
[32] In conclusion, the Applicant has not demonstrated that the Board committed a reviewable error in this case.
[33] The parties have had the opportunity to raise a serious question of general importance and have not done so. No serious question of general importance will be certified.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No serious question of general importance is certified.
___________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET : IMM-5544-02
STYLE OF CAUSE : SUKHWINDER SING TOOR v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING : Montreal, Quebec
DATE OF HEARING : December 11, 2003
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Michel Beaudry
DATED : December 16, 2003
APPEARANCES :
Jean-François Bertrand FOR APPLICANT
Claudia Gagnon FOR RESPONDENT
SOLICITORS OF RECORD :
Jean-François Bertrand
Bertrand, Deslauriers
Montreal, Quebec FOR APPLICANT
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec