Date : 20041029
Docket : IMM-8637-03
Citation : 2004 FC 1523
BETWEEN :
BHUPINDER SINGH
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division ("RPD") dated October 7, 2003 wherein the claim of Bhupinder Singh, the applicant, was rejected. The RPD concluded that he was neither a Convention refugee nor a person in need of protection.
[2] The applicant is a citizen of India. He came to Canada on September 25, 2002 and made a refugee claim. He is single; his parents died in 1998 and he has one sister who is in India and one brother in the United States who received asylum status in October 2001.
[3] In 1987, terrorists came to the family home in Hoshiarpur. They were forced at gun point to provide food and to let them spend the night. The terrorists returned to their home three times during that year. Eventually, the police came and arrested the applicant's brother and father. The applicant was away; he was at the family farm. Hearing of the incident, he left and went to his uncle's to hide.
[4] Subsequently, the father sent the two boys away; the brother to Qatar and the applicant to Rajisthan. The applicant's father was again arrested in 1989. The applicant remained hidden until September 1993; he then returned to his village. He was subsequently arrested in December and remained in custody for about two months. He was beaten and tortured. He was released after his father paid a bribe.
[5] The applicant returned to Rajisthan for seven or eight months; at the end of 1994, he went to Dubai. In 1998, his brother returned to India because of his father's illness. He was arrested, detained and later released. He returned to Qatar.
[6] In May 1999, the applicant went back to his village but the police raided the home and captured his cousin who had remained on the family farm. He was eventually assassinated. Returning to Rajisthan, he later learned of his cousin's demise. In October 1999, he went to Dubai where he failed to obtain permanent status. At the end of August 2002, back to India and, with the assistance of an agent, he left the country for Canada on September 25.
[7] The applicant alleges that the police are still looking for him in India. Since the beatings, he is having health problems, primarily hearing and speaking difficulties and memory loss.
[8] A psychiatric assessment of the applicant was undertaken in August 2002 and the report was provided to the RPD.
[9] With respect to the credibility issue, the RPD concluded that the applicant exaggerated and evaded questions, that many of his answers were unrelated to what was being asked. The RPD found his testimony "often variable" and "tainted by exaggeration". The RPD gave examples of the discrepancies.
[10] Another problem with the claimant's credibility arose in dealing with his brother's U.S. asylum claim; they pointed out that it did not mention the applicant. The failure to mention the applicant suggests that his story may be an invention. The RPD spoke with the brother and questioned him about his failure to mention his brother in his claim. He answered that, at that time, the applicant was in Dubai and he did not want to harm his chances to remain. The RPD did not accept the explanation.
[11] The RPD was also concerned about the conflict between the applicant and his brother's evidence in dealing with the cousin's death. They concluded that such a discrepancy was implausible. In addition, they questioned the applicant's failure to explain a link between the murder of his cousin and his own problems with the police.
[12] The applicant maintains that the police are still searching for him but, when testifying about his brother's arrest in 1998, he suggested that the purpose of the detention was extortion. The RPD found that this also erode the applicant's allegation that the police were seeking to arrest them. The RPD went on to comment that the documentary evidence indicates that presently in India the police are no longer that interested in former militants.
[13] The RPD questioned the fact that the applicant re-availed himself in 1999. His explanation was that he did so since he wanted to check out the family home now that his parents were dead and he felt that it was peaceful. He again returned to India in 2002 to arrange for his departure to Canada; the RPD concluded that these re-availments demonstrate a lack of subjective fear.
[14] Commenting on the psychological assessment, the RPD gave it little weight since they were satisfied that the examiner was not objective and that they were in a better position to judge the credibility since there was more evidence before them and they had an opportunity to examine and test the applicant's allegations.
[15] Counsel for the applicant submits on the issue of credibility that the RPD should have taken into consideration the physical disabilities of the applicant which were evident. The decision focussed on the answers to questions being evasive or varying, but no mention was made of the applicant's hearing and speech impairment which should have been apparent to all present.
[16] Counsel for the applicant further argues that the discrepancies between the applicant's testimony and that given by the brother should not be considered questionable since the explanations given by the brother were entirely reasonable, considering that the applicant was in Dubai and he did not want to endanger him or in any way frustrate his residency in that country.
[17] Counsel for the applicant argued that the RPD placed unwarranted weight on the explanation concerning the cousin's death. As well, he submits they misinterpreted the facts surrounding whether or not the applicant's brother was being questioned for activities relating to militancy rather than extortion.
[18] Dealing with the issue of re-availment, counsel for the applicant suggests that the subjective fear had abated somewhat since he found things were peaceful and did not feel threatened when returning to his village in 1999. The RPD should have determined that what the applicant had suffered in the past were sufficient persecutory acts to establish refugee grounds.
[19] The respondent in reply notes that the RPD did not ignore the applicant's physical infirmities. Its concerns about credibility did not result from mis-communication, rather it was discrepancies between the applicant and his brother's versions of events. The RPD acknowledged the psychiatric report but chose to give it little weight; that is their findings of fact which were open to it and what is argued by the applicant is not sufficient to demonstrate that the decision is patently unreasonable.
[20] Dealing with the re-availment issue, the RPD did not commit a reviewable error. The respondent submits that it did not accept the evidence concerning the 1999 incident, rather it concluded that the evidence lacked credibility. In addition, the RPD mentions that the applicant re-availed himself in 2002 after the 1999 alleged events when the cousin had been arrested and the applicant fled.
[21] This review is primarily concerned with credibility. Both parties agree that, when dealing with credibility, the standard of review is patent unreasonableness. The psychiatric assessment and the physical condition of the applicant were considered. From the transcript, it is apparent that the RPD understood the applicant except with respect to minor matters. There can be no reviewable error on this ground.
[22] The RPD concluded that the applicant exaggerated and evaded questions, that many of his answers were unrelated to the questions asked; many examples were referred to in the reasons for the decision.
[23] The RPD found discrepancies between the evidence of the applicant and that of his brother. That finding was open to the RPD and was reasonable. Their explanations were clear and provided reasons why they found the applicant's statements implausible.
[24] On the re-availment issue, the applicant returned to India on two separate occasions, in 1999 and in 2002. Even if one accepts his version with respect to the 1999 return and that subjective fear was somewhat abated, the applicant offered no explanation for the 2002 re-availment. I agree with the RPD that this demonstrates a lack of subjective fear. Even though it may be said that the RPD was quite harsh and made some minor errors in findings of fact, the errors were not central to the decision and not sufficient for this Court to interfere.
[25] The RPD's credibility and re-availment findings were not made in a perverse or capricious manner without regard for the evidence. The Board is still entitled to disbelieve.
[26] There is no serious question; the application is dismissed.
JUDGE
OTTAWA, Ontario
October 29, 2004
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : IMM-8637-03
STYLE OF CAUSE : Bhupinder Singh v. Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 14, 2004
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: October 29, 2004
APPEARANCES:
Mr. Aleksandar Stojicevic FOR THE APPLICANT
Mr. Jonathan Shapiro FOR THE RESPONDENT
SOLICITORS OF RECORD:
Maynard and Stojicevic
Barristers and Solicitors FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT