Date: 20031023
Docket: IMM-5475-02
Citation: 2003 FC 1240
Montreal, Quebec, October 23, 2003
Present: The Honourable Mr. Justice Martineau
BETWEEN:
UDHAY BHANU SHARMA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of the decision of the Immigration and Refugee Board, Refugee Division (the Board), dated August 13, 2002, wherein it was decided that the applicant is not a "Convention refugee" pursuant to section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), nor a "person in need of protection" pursuant to section 97 of the Act.
BACKGROUND
[2] The applicant, Udhay Bhanu Sharma, is a Hindu Kashmiri from India. He was residing with his wife and three daughters in Srinagar where he operated a used tire business. In August 2000, the applicant moved his family to Udhampur. The applicant submits that he was threatened by the Indian Security Forces ("ISF") because he supported the independence of Kashmir. He submits that he openly criticised the para-military forces and the ISF. The appplicant's main allegations can be summarized as follows.
[3] The applicant alleges that during the Lok Sabha elections (September 1999), he refused to cast his vote and as a result, the ISF physically forced against him and his family to bring them to the polling station.
[4] The applicant further submits that he was continuously solicited at gunpoint by various militants groups to donate to their cause. The applicant was arrested on four occasions, the detention period varying between five to ten days.
[5] On February 5, 2001, the applicant claims that he participated in a rally where he spoke against the government. He also submits that during the course of that evening, militants came to his "shop" and asked him for money as a donation. The militants also threatened him and his family members with retaliation if he ever were to denounce them. That same evening, when closing his "shop", he was arrested by the police and was accused of sheltering the militants. During his transit to the police station, the jeep that was taking him had mechanical problems and he managed to escape from the four policemen who left him briefly to look at the motor of the vehicle. He then walked through the jungle and finally reached his in-law's residence in Udhampur and from there he went to a nearby village to hide.
[6] On March 10, 2001, the applicant received a message from his father-in-law indicating that the police was determined to arrest him and that they had physically assaulted his wife and parents in their efforts to locate him. As a result, the applicant decided to leave India and claim Convention Refugee status in Canada.
[7] The applicant claims to have a well-founded fear of persecution based on his religion and nationality, and also due to his political opinion. He also claims to be a person in need of protection because he faces a risk of torture and a risk to his life or cruel and unusual treatment or punishment if he returns to India.
[8] In dismissing the applicant's claim, the Board essentially determined that the applicant did not have a true subjective fear of persecution. Moreover, the Board found that the applicant was not credible. The Board pointed out contradictions as to the number of arrests and the time at which they occurred. The Board also pointed out contradictions as to where the applicant was located in May 2001. Further, the Board questioned the applicant's statement to the effect that police throughout India were looking for him and would arrest him wherever he was. Finally, the Board stated that the claimant's refusal, omission, or negligence to seek protection at first opportunity was also reflective of his lack of credibility.
[9] The applicant contends that the Board's evaluation of the facts is unreasonable, that it misconstrued evidence, and that it based its decision on minor inconsistencies rather than focussing on the applicant's main allegations.
ANALYSIS
The Law: The Board's Credibility Findings
[10] The determination of an applicant's credibility is the heartland of the Board's jurisdiction as pointed out in R.K.L. v. Canada (Minister of Citizenship and Immigration ) 2003 FCT 116 at para. 7. This Court has found that the Board has well-established expertise in the determination of questions of facts, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant (Aguebor v. Canada (Minister of Citizenship and Immigration), [1993] 160, N.R. 315 at para. 4 (F.C.A.); Sidhu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1355 at para. 4 (T.D.) (QL); Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (T.D.) (QL); Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14).
[11] As such, in order for this Court to intervene, the applicant must do more than simply state his disagreement with the credibility finding of the Tribunal. The applicant must demonstrate that the Tribunal's conclusion that he was not credible is patently unreasonable (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[12] It has been recognized and confirmed that with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the Board when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it: see Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 4 (T.D.) (QL); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 (T.D.) (QL) and the grounds for review at paragraph 18.1(4)(d) of the Federal Court Act, R.S.C., 1985, c. F-7.
[13] Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms": see Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 at p. 176 (F.C.A.); Zhou v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1087 (C.A.) (QL); and Kanyai, supra, at para. 10.
[14] Furthermore, the Board is entitled to make reasonable findings based on implausibilities, common sense and rationality (Shahamati v. Canada (Minister of Employment an Immigration), [1994] F.C.J. No. 415 at para. 2 (C.A.) (QL); Aguebor, supra, at para. 4). The Board may reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole, or where inconsistencies are found in the evidence (Kanyai, supra, at para. 11).
[15] However, not every kind of inconsistency or implausibility in the applicant's evidence will reasonably support the Board's negative findings on overall credibility. It would not be proper for the Board to base its findings on an extensive "microscopic" examination of issues irrelevant or peripheral to the applicant's claim (Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.); Owusu-Ansah v. Canada (Minister of Employment and Immigration), (1989), 98 N.R. 312). Furthermore, the Board should not be quick to apply the North American logic and reasoning to the claimant's behaviour: consideration should be given to the claimant's age, cultural background and previous social experiences (Rahnema v. Canada (Solicitor General) (1993), 68 F.T.R. 298 at para. 20; El-Naem v. Canada (Minister of Citizenship and Immigration), (1997), 126 F.T.R. 15 at paras.17-19).
[16] Finally, the applicant's credibility and the plausibility of testimony should be assessed in the context of her country's conditions and other documentary evidence available to the Board. Minor or peripheral inconsistencies in the applicant's evidence should not lead to a finding of general lack of credibility where documentary evidence supports the plausibility of the applicant's story (Attakora, supra; Frimpong v. Canada (Minister of Employment and Immigration), (1989), 99 N.R. 164 (F.C.A.)).
Application to the present case
[17] In light of the particular facts of this case, I find that the Board decision is not patently unreasonable (Pushpanatham v. Minister of Citizenship and Immigration, [1998], 1 S.C.R. 982; and Qasem v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1182 at para. 42).
[18] The Board found that there were some important credibility issues that needed to be taken into consideration. For example, the applicant contradicted himself in relation to the date on which he was first arrested and as to the number of times he was arrested. Furthermore, in his testimony he stated that he moved to New Delhi on March 22, 2001, which contradicted his Personal Information Form (P.I.F.), that indicated that he lived in Srinagar from May 1999 until May 2001. It was reasonably opened to the Board, based on the evidence, to make negative inferences. Those were not just minor inconsistencies. The applicant was confronted at the hearing with same. In the particular circumstances of the case, I see nothing wrong for the Board not accepting the applicant's explanations.
[19] It is also important to note that at the end of the hearing, the applicant alleged that the police came to his in-laws home and stated that he could not hide anywhere in India.
BY COUNSEL (addressing Claimant)
Q: My question is, do you know this for a fact, that they circulated your photos in every part of India, or you suspect that they did or may have done it?
A. When I was in the lock-up they had taken my photographs. The one who escape, they send everybody's photographs.
Q: Sir, again... and just be fair and honest. And it's in your best interest. Are you speculating that they may have sent your photographs everywhere, or you know this for a fact?
A: They have sent.
Q: How do you know? Did they tell you that they sent the photographs? Did they tell your family that they'd be circulating the photographs?
(...)
Q: How do you know?
A: Police had come. When they came to my in-laws house in their home. "Where is he in hiding? He can't hide anywhere in India. We have sent his photographs to all the police stations".
(My emphasis)
[20] The applicant submits that the Board relied on its personal opinion when concluding that the applicant's allegation, that the police would arrest him no matter where he might go in India. However, I find the Board's conclusion in this regard not patently unreasonable. First, it was only at the end of the hearing that the applicant submitted that the police came to his in-laws home and stated that he could not hide anywhere in India. Second, the Board noted that this allegation was omitted from the applicant's P.I.F. Third, the Tribunal referred to documentary evidence, which indicated that the Indian police do not even use computers. I disagree with applicant's counsel that the Board viewed the situation in the eyes of a westerner. It was reasonably opened for the Board to find it implausible that the Indian police would have the capacity to easily distribute the applicant's picture to all police forces throughout India, thus making it difficult for him to hide from them.
[21] In addition, the Board considered the serious character of the victimisation alleged and found the applicant's behaviour inconsistent with someone fearing for his life and in need of protection. At the hearing, the applicant was invited to explain why he had failed to relocate his business:
BY COUNSEL (adressing Claimant)
Q: Well, the Board would like to consider, then, why... the possibility of you... why didn't you relocate your business elsewhere so that you can avoid trouble again, and start again within the same business?
A: There were... I had sources and I had was a very old business. I had my customers also. It was difficult for me to find a new place and start a business again. There was no guarantee you could go ahead. I will not go ahead. Here it was running very well. My work was very well.
Q: But did... you, at any given point in time, ever consider about relocating your business and moving your family elsewhere, while you were living there?
A: Never
(My emphasis)
[22] In its decision, the Board points out that the claimant admitted having "never" considered relocating his business. The Board noticed that the claimant considerations were strictly financial, notwithstanding the fact as he alleged that his life and integrity as well as his family's was in danger. According to the Board, this is not reflective of someone fearing for his life and in need of protection. The Board found that there was a lack of subjective fear. That conclusion was reasonably opened to the Board and as such is fatal to the applicant's judicial review application: Riadinskaia v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 30 at para. 7 (T.D.) (QL); Cheema c. Canada (Ministre de la Citoyenneté et de l'Immigration), [2002] A.C.F. No. 1672 at para. 21 (T.D.); Anandasivam v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1519 at para. 23; Montoiro v. Canada (Minister of Citizenship and Immigration) (2002), 227 F.T.R. 1, at para. 18 (T.D.).
[23] At the hearing, the applicant's counsel tried to frame the issue of relocation as one raising an internal flight alternative (IFA). I kindly disagree. It is clear in reading the Board's decision, that the latter was dealing with the applicant's subjective fear.
[24] As for the applicant's failure to seek protection in the United Kingdom and the United States, the applicant argues that he was in those countries for a very short period of time and that he was simply following the agent's instruction for coming to Canada. The applicant also submits that the agent did not advise him to claim refugee status in either the United Kingdom or the United States.
[25] The Board referred to Mohamed v. Minister of Citizenship and Immigration, (1997) 127 F.T.R. 241 where Rothstein J. stated that the purpose of the 1951 Geneva Convention is to protect persons who require protection and not to assist persons who simply prefer asylum in one country over another. The Board concluded that the applicant's refusal, omission or negligence to seek protection at the first opportunity was reflective of his lack of credibility.
[26] In Huerta v. Canada (Minister of Citizenship and Immigration) (1993), 157 N.R. 225 (F.C.A.) the Federal Court of Appeal held that delay in making a refugee claim is not a decisive factor in itself, however it is a relevant factor to take into account in assessing both the statements and actions of the claimant. In Lameen v. Canada (Secretary of State), [1994] F.C.J. No. 886 (T.D.) (QL) Cullen J. found the delay to be an important factor to consider, but noted that each case must be interpreted on its own merits to decide how much delay is too much.
[27] Here the applicant spent a few hours at the airport and has spent a night somewhere before coming to Canada. This, in my opinion, does not in itself constitute too long of a delay (Souridan v. Canada (Minister of Citizenship and Immigration), (2001) 22 Imm. L.R. (3d) 134 at paras. 31-35, 2001 FCT 956). Although the Board's finding concerning delay appears patently unreasonable, it does not render the Board's entire decision defective, as the determinative findings aimed to credibility are not patently unreasonable.
[28] In conclusion, the intervention of the Court is not justified (Aguebor, supra; Kabeya v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 106 (T.D.) (QL); Mwana Kabengele v. Canada (Minister of Citizenship and Immigration) (2000), 197 F.T.R.73). [2000] A.C.F. No. 1866 (QL)).
[29] No question of general importance has been proposed for certification.
ORDER
THIS COURT ORDERS that this application for judicial review be dismissed. No question is certified.
« Luc Martineau »
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5475-02
STYLE OF CAUSE: UDHAY BHANU SHARMA v. MCI
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: October 16, 2003
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Martineau
APPEARANCES:
Mr. Viken G. Artinian FOR THE APPLICANT
Ms. Claudia Gagnon FOR THE RESPONDENT
SOLICITORS OF RECORD:
MR. VIKEN G. ARTINIAN FOR THE APPLICANT
MONTREAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL FOR CANADA