Date: 19980114
Docket: IMM-733-97
Between :
SAJAN SINGH, domiciled and residing at
7208 Harwick Dr., Mississauga, Ontario, L4T 3A4,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, c/o Justice Department,
Guy Favreau Complex, 200 West René-Lévesque,
East Tower, 5th Floor, Montreal, Quebec, H2Z 1X4,
Respondent.
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated January 27, 1997, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act (the Act).
[2] The Board rejected the applicant"s claim for refugee status on the ground that his testimony was not credible.
[3] The Federal Court of Appeal, in Aguebor v. Canada (M.C.I.) (1993), 160 N.R. 315, at page 316, held that the tribunal is in the best position to evaluate a claimant"s 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.1 |
[4] It has also been held that the tribunal"s perception that the claimant is not credible effectively amounts to a finding that there is no credible evidence on which it could allow his or her claim for refugee status. In Sheikh v. Canada (M.E.I.) (1990), 11 Imm.L.R. (2d) 81, at page 86, Mr. Justice MacGuigan, for the Federal Court of Appeal, stated:
| The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. |
[5] In the case at bar, the Board found that the applicant was able to accurately recite the events found in his Personal Information Form (PIF), but his testimony turned vague when the refugee hearing officer questioned him. The Board also found that there were discrepancies between his testimony and the statements he had made at the port of entry as to the major elements of his claim. The Board provided several examples of these discrepancies.
[6] First, the Board noted that the applicant testified that he was not a member of the AISSF and that he had only had minimal involvement in their activities. However, at the port of entry he had declared in his PIF and to immigration authorities that he was a member of the AISSF and had put up posters, delivered messages and attended demonstrations and strikes. The applicant attempted to explain this discrepancy by stating that the agent who had secured his escape from India had told him to lie in order to gain refugee status. The Board was also concerned that the applicant had made no statement about his brother even though he was an important feature of his claim. The applicant stated that he merely did whatever the agent told him to do. The Board found that this was not a credible explanation.
[7] Second, the applicant had stated to immigration authorities that he had been forced to lie on ice when tortured. However, he did not mention this in his PIF, nor did he mention it when examined by his counsel at the hearing, or when he was interviewed by a physician and a psychiatrist. The applicant tried to explain this discrepancy by claiming that since coming to Canada, he had remembered certain things and forgotten others. However, the Board found it significant that the applicant was able to provide many other details about how he was tortured. The Board opined that if he had been tortured while being forced to lie on ice, he would not have forgotten it.
[8] Lastly, the applicant was only able to produce his driver"s licence at the hearing because he said that the rest of his original identity documents had been lost in the summer of 1996. The applicant said that he had asked his father to replace the documents but whenever his father phoned, he was so happy to talk to him that he forgot to ask. The Board held that the applicant should have made a more significant effort to find those documents.
[9] In light of all of the evidence on the record, I am of the opinion that the applicant has not discharged his burden of establishing that the specialized tribunal did not assess his credibility properly. Although I would not endorse each aspect of the tribunal"s analysis of the facts, I am nonetheless of the opinion that the tribunal could reasonably have concluded as it did. In the circumstances, it is not for the Court to substitute its own decision for that of the tribunal.
[10] Accordingly, the application must be denied.
JUDGE
OTTAWA, ONTARIO
January 14, 1998
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1 See also Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.).