OTTAWA, Ontario, this 9th day of December, 2005
PRESENT: THE HONOURABLE PAUL U.C. ROULEAU
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for a judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated April 14, 2005, in which the Board found that the applicant was not a Convention refugee or a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, 2001 S.C. c. 27 (the IRPA). The Board's finding was based on a lack of credibility in the applicant's alleged story.
[2] The applicant, Harjit Singh, is a citizen of India who claims to fear persecution at the hands of the police in India.
[3] The applicant claims that he was arrested on November 23, 1996 by police and accused of helping terrorists to revive terrorism in Punjab. He claims he denied the allegations and was illegally detained for six days. During the detention, the applicant claims he was badly tortured to obtain a confession.
[4] The applicant claims that a second incident occurred on February 21, 2004. He said he returned to his truck, after stopping at a restaurant, to find two men sitting in his cab. He claims that one pointed a gun at him and told the applicant to follow orders. The applicant claims he noticed a police jeep following them and was told to stop at a bend in the road, where the young men got out and ran away.
[5] The applicant was then arrested, detained for several days and tortured with sticks, belts and a roller. He claims he was able to escape from police custody when he was being moved to Udhampurr Camp; they He stopped for food and he was able to escape from the vehicle.
[6] The applicant subsequently came to Canada, leaving India in August, 2004. He claims that the police are still looking for him, claiming that he has links with known Kashmiri terrorists. He made a claim for refugee protection on October 8, 2004.
[7] The Board considered the applicant's claim and found that he was not a credible witness. The Board's decision, dated April 14, 2005, concluded that the applicant had not given credible evidence as to incidents which would place him at risk. The Board concluded that there was no more than a mere possibility that a return to India would subject the applicant personally to a risk to life, or to a risk or cruel and unusual treatment or punishment.
[8] The Board made six key findings in concluding that the applicant was not credible. First, they Board found it implausible that the applicant was not aware of the People's Commission on Human Rights, which was set up to investigate the type of complaints alleged by the applicant (arbitrary/illegal detention and torture).
[9] Second, the Board found that there were omissions of relevant evidence between the applicant's Personal Information Form (PIF) and his oral evidence, given at the hearing.
[10] Third, the Board found that the applicant had failed to make any allegations of torture to the medical practitioner who the applicant saw after his arrival in Canada. The Board concludes that the applicant has no credible medical evidence that he was tortured in India.
[11] Fourth, the Board noted an inconsistency between an interview the applicant had with an immigration officer on December 1, 2004, and his PIF claims. The Board notes that the applicant told the officer, with respect to the second alleged incident, that the police took him and he escaped when they stopped the vehicle to have some tea. The Board noted that the officer's notes do not indicate an arrest that went on for several days.
[12] Fifth, the Board noted that the applicant answered inconsistently when asked whether a warrant had been issued against him. The claimant initially indicated that there was a warrant, but further testimony indicated that there was no warrant. The Board found that the police would issue a warrant if they suspected the applicant of being connected with Kashmiri terrorists. The Board found that the inconsistency further impugns the applicant's credibility.
[13] Finally, the Board noted that the applicant was in possession of false documents (a driving permit subjected to a counterfeiting analysis). The Board also noted the two month delay in making the refugee claim and the travel from Vancouver to Montreal prior to making the claim. The Board concluded that the applicant was not credible and denied his claim.
[14] The Board concluded that the applicant is not credible and is therefore not a Convention refugee or a person in need of protection. The Board denied the applicant's claim.
[15] The only issue in the present application is whether the Board's decision with respect to the applicant's credibility was made in a reasonable manner. The Board's decision is only reviewable if it was made in a perverse and capricious manner, without due regard to the evidence before the Board.
[16] The assessment of credibility is an area of analysis where the court owes due deference to the Board. The Federal Court set out the review process for a credibility finding in R.K.L. v. Canada(Minister of Citizenship and Immigration) [2003] F.C.J. No. 162, at paras 7-8:
¶ 7 The determination of an applicant's credibility is the heartland of the Board's jurisdiction. This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14.
¶ 8 Moreover, 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. 14 (QL) (T.D.) ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 (QL) (T.D.) ("Kanyai"); and the grounds for review set out in paragraph 18.1(4)(d) of the Federal Court Act.
[17] However, despite the amount of deference owed to the Board on a credibility decision, the decision must still be reasonable. In Dev Singh Gil v. Canada (Minister of Citizenship and Immigration) 2004 FC 921, Pinard J. noted as follows at para 13:
I am of the opinion that , in spite of the respondent's counsel's able presentation, the Board made its decision on the basis of too many inferences that were drawn from a microscopic, overzealous and erroneous interpretation of the evidence.
[18] In addition, Muldoon J., in Valtchev v. Canada(Minister of Citizenship and Immigration) [2001] F.C.J. No. 1131, noted as follows:
[P]lausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant [...]
[19] The Board, in the present matter, underwent an overzealous, microscopic analysis of the applicant's situation and relied on implausibility findings that do not meet the criteria outlined by Muldoon J. in Valtchev, supra.
[20] With respect to the plausibility findings, to wit that the applicant should have known about the Human Rights Commission and that the applicant would have notified the doctor of his torture in India is so implausible as to be outside the realm of what could reasonably be expected. The Board erred in making the implausibility findings.
[21] With respect to the findings that there were omissions and contradictions in the applicant's story, I am of the opinion that the Board underwent an overzealous analysis of the applicant's story, thereby rendering the Board's decision patently unreasonable. The Board's analysis of the omissions, with respect to the use of the roller, and the stretching of the feet, is overly microscopic, and cannot be left to stand. I agree with the applicant that the Board could not reasonably discard his evidence due to the fact that he left out one detail of his torture. In addition, the confusion surrounding whether there was a warrant, which arose in the questioning of the applicant, would, as the applicant submits, require him to answer questions as to the motivations of persons beyond his control (the police). They expected him to speculate. I am of the opinion that the finding was made on a diminutive examination of the evidence and cannot stand.
[22] Given the problematic findings with respect to plausibility, I am of the opinion that the Board decision, as a whole, is patently unreasonable, and cannot stand.
JUDGMENT
The application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Refugee Protection Division of the Immigration and Refugee Board.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2856-05
STYLE OF CAUSE: HARJIT SINGH and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 6, 2005
REASONS FOR ORDER: Rouleau D.J.
APPEARANCES:
SOLICITORS OF RECORD:
Mr. Ethan Friedman FOR APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec