Date: 20060206
Ottawa, Ontario, February 6, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
NOËL J.
[1] This is an application for judicial review brought under section 72 of the Immigration and Refugee Protection Act, S.C., 2001, c. 27 (“IRPA”) of a decision by Louise Robic of the Refugee Protection Division (“RPD”), dated July 11, 2005. The RPD dismissed the claim for refugee protection made by Baldev Singh (the “applicant”) on the grounds that he was not a Convention refugee or a person in need of protection. I must underline the fact that the parties’ memorandums were more than complete and were meticulously detailed. They were of great use, and I thank the lawyers.
ISSUES
[2] The issues are as follows:
- Did the RPD err in law or in fact in concluding that the applicant’s narrative was not credible?
- Did the RPD err in law or in fact in concluding that the applicant could claim state protection in India?
CONCLUSION
[3] For the reasons that follow, I answer both questions in the negative, and the application for judicial review is dismissed.
FACTS ALLEGED BY THE APPLICANT
[4] The applicant’s narrative, as alleged in his Personal Information Form (“PIF”) is as follows:
[5] The applicant is a citizen of India and is of the Sikh religious denomination. In February 2001 the applicant began to work in the trucking field. On March 20, 2003, the applicant, his father and truck driver Jaswant Singh, were coming back from a delivery in the province of Jammu. Three terrorists from Kashmir allegedly intercepted them and forcibly climbed onto the truck. Farther on down the road, at a police roadblock, the terrorists fled on foot but were located by the police. One of them was arrested, as were the applicant and his companions. They were jailed, interrogated and accused of having co-operated with terrorists and were then beaten to obtain confessions. Three days later, the applicant was released because of pressure brought by the town council, the president of the trucker’s union and other influential persons from his village.
[6] In May 2004, in spite of the attempts at intimidation by some members of the Congress Party (“CP”), the applicant allegedly supported a candidate of the Shiromani Akali Dal (SAD) party in the lead-up to elections to be held on May 10, 2004. On the day before the elections, members of the CP allegedly mistreated the applicant, as well as Jaswant Singh and Ajit Singh, another party member, and the police were called. At the police station, the applicant was tortured and then released after the elections. As a result of a new intervention by the town council, the SAD Party and influential persons from the village, the applicant and Ajit Singh were released on conditions. His associate, Jaswant Singh, was kept in jail.
[7] Because he was worried about the disappearance of Jaswant Singh, the applicant contacted the Kharla Mission Committee (KMC), a human rights organization. On June 5, 2004, the police showed up at the applicant’s farm to intimidate him and encourage him not to file complaints against the police. On the same day, the applicant fled to New Delhi, where he was harboured by his uncle. He left India on September 3, 2004 with the help of an agent and claimed refugee status in Canada on September 9, 2004. On August 2, 2005, the RFP rendered the decision which is the subject of the present application for judicial review.
IMPUGNED DECISION
[8] The decision rendered by the RPD is based on two findings of fact. The first one is to the effect that the applicant could have claimed state protection from India. The second was to the effect that the applicant’s narrative was not credible.
[9] The RPD relied on the following facts, extracted from literature concerning the human rights situation in India, to conclude that the applicant was in a situation such that the Indian state could have protected him:
- India is a parliamentary democracy in which the institutions are able to respond to citizens’ complaints in cases of abuse of power by the police. One such institution is the National Human Rights Commission (“NHRC”), which has played a greater role over the last few years;
- The situation in India has improved in this regard between 1984 and 1993, and the police can no longer act with total impunity;
- The evidence shows that it is possible to obtain relief from the judicial system, including in the province of Punjab;
- Although the police may intimidate persons who bring charges against them, the evidence does not show that these persons are arrested, killed, or that they disappear;
- The letter from KMC, submitted by the applicant, confirms it is possible to bring complaints against the police;
- The applicant’s evidence to the effect that the police commit abuses was dismissed because it is in connection with the enforcement of the Prevention of Terrorism Ordinance, which has nothing to do with the applicant’s situation.
[10] The RPD concluded that the applicant was not credible for the following reasons:
- His narrative seems to contradict the documentary evidence about the human rights situation in India;
- It is not plausible that the applicant was arrested twice, tortured and released without influential persons in his community (such as the Sarpanch, the members of the Panchayat and the president of the trucker’s union) intervening;
- It is not plausible that the police made arrests at the general headquarters of the SAD one day before the elections without this being reported in the newspapers and without complaints being filed by the party, while freedom of the press exists in India.
[11] The RPD dismissed exhibits P-7, P-10, P-12, P-16 and P-16A, considering that they were false documents.
ANALYSIS
1. The Standard of Review
[12] Two distinct standards of review apply in this case.
[13] The standard of review applicable to a decision rendered by the RPD as to whether an applicant may invoke state protection is that of reasonableness simpliciter (Chaves v. Canada, 2005 FC 193, [2005] F.C.J. No. 232, at paragraph 11).
[14] On the issue of the applicant’s credibility, however, the standard that applies is that of patent unreasonableness (Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at paragaph 10; Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.), at paragraph 4).
2. The Applicant’s Credibility
[15] The applicant felt that the RPD did not give sufficient reasons for its decision not to believe him. According to him, it was not enough to say that the documentary evidence did not corroborate the applicant’s narrative. In addition, the applicant alleged that the RPD should have said why some evidence was rejected and not simply said that some documents were false because of his lack of credibility.
[16] Meanwhile, the respondent was of the opinion that the RPD based its decision first and foremost on the likelihood of the applicant being able to claim state protection in India and on his failure to use all available recourses, and not only on the matter of credibility. In any event, according to the respondent, this secondary ground for the dismissal of the application would be sufficient. The respondent added that the applicant’s fear of persecution was not sufficiently personalized to warrant granting the claim for refugee protection.
[17] I examined the reasons for which the RPD concluded that the applicant was not credible. They seem to me to be sufficient and are not patently unreasonable.
[18] I add that, given its decision on the matter of credibility, it was open to the RPD to reject the evidence submitted by the applicant as being false or self-serving documents. I note that, to arrive at such a conclusion, the RPD relied on several references (see note 26). These seem to me to be a minimum which, under the circumstances, are acceptable. However, the provision of more in-depth reasons would be beneficial in this type of decision. In Hamid v. Canada, [1995] F.C.J. No. 1293 at paragraph 20, Mr. Justice Nadon wrote:
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.
This decision has been followed by the Federal Court (see Al-Shaibie v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1131, 2005 FC 887, at paragraph 21; Saha v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1117, at paragraphs 32-33).
[19] Although the decision could have been more detailed, the fact remains that, overall, the determination regarding the applicant’s credibility seems to me to be well founded and cannot lead to the conclusion that the decision is patently unreasonable. Therefore, there is no need to reconsider the findings of the RPD concerning the applicant’s credibility or its rejection of the evidence he submitted.
3. State Protection
[20] The applicant claimed it was not reasonable to require that he retain the services of a lawyer to seek relief, because the police could have continued to persecute him. The respondent, meanwhile, was of the opinion that the decision rendered by the RPD was based on ample evidence according to which it was possible for the applicant to claim protection from the Indian state.
[21] The applicant did not submit any case law in support of his point of view. In Carrillo v. Canada, 2004 FC 944, [2004] F.C.J. No. 1152, at paragraphs 2 to 4, Madam Justice Snider of this Court wrote the following concerning cases in which it is alleged that the police were the agents of persecution:
In the case at bar, the Applicant submits that there is no obligation at law for her to demonstrate to the Board that she sought state protection, given that the agents of persecution were state agents. I disagree.
In Ward, supra at 724, the Supreme Court of Canada held that, when state protection might reasonably have been forthcoming, the Board is entitled to draw an adverse inference based on a claimant's failure to approach state authorities for assistance:
Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection “might reasonably have been forthcoming”, will the claimant's failure to approach the state protection defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
In my view, whether it is objectively unreasonable for the claimant not to have sought the protection of home authorities invites the Board to weigh the evidence before it and make a finding of fact. For example, although the agent of persecution might be a stage agent, the facts of the case might suggest that purely local or rogue elements are at work and that the state in question is democratic and offers protection to victims similarly situated to the claimant. It might, therefore, be objectively reasonable to expect a claimant to seek protection. In other instances, the identity of the state agent and documentary evidence of country conditions might mean that state protection would not be reasonably forthcoming and, therefore, the claimant is not expected to have sought protection. Given that the Board's analysis of Costa Rica's political and judicial institutions was not patently unreasonable, meaning it was supported by the evidence before the Board, the imposition of an obligation to seek protection based on this evidence does not constitute a reviewable error, in my opinion.
[22] In my opinion, Snider J. was right to rely on the approach described by the Supreme Court of Canada in Ward v. Canada (Attorney General), [1993] 2 S.C.R. 689. The real question to be asked is whether it is reasonable to require that the applicant seek protection from his state, in any way, even in cases in which the police is the persecuting agent. This approach allows the assessment of the real likelihood of a person being protected by his country of origin. In Karoly v. Canada (Minister of Citizenship and Immigration), 2005 FC 412, [2005] F.C.J. No. 517, at paragraph 16, Mr. Justice Blais noted that an applicant may claim state protection without necessarily turning to the police:
In addition, this Court has determined on numerous occasions that for the purpose of determining the existence of state protection, one can rely on the availability of state run or funded agencies and not only from the police (Nagy v. Canada (Minister of Citizenship and Immigration), 2002 FCT 281, [2002] F.C.J. No. 370; Zsuzsanna v. Canada (Minister of Citizenship and Immigration), 2002 FCT
1206, [2002] F.C.J. No. 1642; Szucs v.Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1614).
[23] This does not mean that the person seeking refugee protection is required to exercise every possible recourse, but it would be an overstatement to say that, as soon as a person alleges that the agent of persecution is the police, he is not required to seek protection from his country of origin. In Chaves v. Canada (Minister of Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232, at paragraph 15, Madam Justice Tremblay-Lamer wrote:
In my view, however, Ward, supra and Kadenko, supra, cannot be interpreted to suggest that an individual will be required to exhaust all avenues before the presumption of state protection can be rebutted (see Sanchez v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 536 (T.D.)(QL) and Peralta v. Canada (Minister of Citizenship and Immigration) (1996), 123 F.T.R. 153 (F.C.T.D.)). Rather, where agents of the state are themselves the source of the persecution in question, and where the applicant's credibility is not undermined, the applicant can successfully rebut the presumption of state protection without exhausting every conceivable recourse in the country. The very fact that the agents of the state are the alleged perpetrators of persecution undercuts the apparent democratic nature of the state's institutions, and correspondingly, the burden of proof. [Emphasis added.]
[24] In this case, the applicant’s credibility is undermined, and the RPD did not specify that he had to seek help from the police. Instead, it stressed the evidence showing that India has an efficient system of protection against police abuse, which allows citizens to exercise effective recourses against such abuses. The RPD noted two possible alternatives in particular, that is, recourse to the NHRC and judicial remedies. In my opinion, it was not unreasonable to require that the applicant avail himself of one of these recourses before seeking refuge in Canada, considering his dubious credibility and the presumption that the Indian state is able to protect its nationals. It was not unreasonable to also come to the conclusion that the Indian state was capable of protecting its nationals against police abuse, as Mr. Justice Pinard had concluded in Singh v. Canada (Minister of Citizenship and Immigration), 2003 FTR 185, [2003] F.C.A. No. 291. The RPD also made the distinctions required and did not commit any error of fact. Therefore, no intervention is warranted on this point.
[25] The applicant also alleged that the RPD committed the following two errors of fact:
- The RPD wrote that the applicant was arrested, tortured and released “in front of prominent people”, when in reality he had made a complaint to his village authorities;
- The applicant stated that he had been formally charged with an offence, contrary to what the panel wrote.
[26] On the first point, the excerpt for which the applicant criticized the RPD was the following (page 2 of the decision):
The documentary evidence does not allow the panel to believe that the police could have arrested the claimant twice, tortured him and released him in front of prominent people such as the Sarpanch, the members of the Panchayat, the President of the truckers union and other prominent people and two high-ranking members of the SAD party the second time, without charging him with a crime and that he could not take action to stop such abuse.
On reading the entire decision, including the summary of facts, it is clear that the expression “in front of” must not be taken literally. The summary of facts is at page 1 of the decision:
The claimant and his driver were arrested, accused of transporting terrorists, arms and ammunitions. They were tortured. They were released with the help of members of the village council, the President of the truckers union and respectable people from the village.
The claimant was arrested a second time (May 9th 2004) while working for SAD during the elections of May 10th 2004. He was tortured. He was released with the help of the same group of people and two high-ranking SAD leaders.
It is clear from this excerpt that the RPD did not say it had understood that the members of the influential group were all personally eye witnesses to the arrests and the subsequent torture and that everything happened in front of them without them intervening. I think that the RPD was expressing its surprise at the applicant’s narrative, according to which the arbitrary arrests, the unfounded charges and the police brutality did not seem to outrage persons holding positions of authority in the village or prompt them to intervene immediately.
[27] On the second point, I note that the RPD did not write anywhere in its decision that the applicant was not charged with an offence; this fact was not so significant as to be specifically mentioned.
[28] The parties were invited to submit questions for certification. The applicant wanted the following question to be certified:
[translation]
In cases in which an applicant alleges torture or death threats by the police, is the applicant always obliged to adduce clear and convincing evidence to the effect that the state will not protect him or her, and is he or she obliged to seek protection in his or her own country, including recourse to non-police organizations?
[29] Having considered the respondent’s submissions against the requested certification, I note that, for a question to be certified, the criteria outlined in Canada (Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, at paragraph 4, must be followed. The question must transcend the interests of the immediate parties to the litigation, have broad significance or general application and be determinative of the appeal. In my opinion, the question should not be certified, because this issue has already been decided by the courts. In any event, if the Federal Court of Appeal rendered a judgement on this point, it would not be determinative of the appeal, because the applicant’s claim for refugee protection was dismissed on credibility issues apart from the grounds relating to state protection.
[30] For these reasons, the application for judicial review is dismissed, and no question will be certified.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review be dismissed, and no question will be certified.
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5092-05
STYLE OF CAUSE: BALDEV SINGH v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
REASONS FOR ORDER BY: The Honourable Mr. Justice Simon Noël
APPEARANCES:
|
Michel Le Brun
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FOR THE APPLICANT(S) |
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Mario Blanchard
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FOR THE RESPONDENT(S) |
SOLICITORS OF RECORD
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6981 Marie-Guyart Lasalle, Montréal, Quebec H8N 3G9
|
FOR THE APPLICANT(S) |
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Department of Justice Canada Guy Favreau Complex 200 René Lévesque Blvd. West East Tower, 5th Floor Montréal, Quebec H2Z 1X4
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FOR THE RESPONDENT(S) |