Date: 20001101
Docket: IMM-1893-00
BETWEEN:
BAKHSHISH KAUR KULAR
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application is for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (hereinafter "the Refugee Division"), dated March 20, 1999, wherein the Refugee Division found that the Applicant was not a Convention refugee.
[2] The Applicant is a citizen of India. She entered Canada on November 1, 1998, and made a refugee claim on November 4, 1998.
[3] She alleged that she had been a member of the women's wing of the Akali Dal Mann party from 1991 to 1998, in India. As such, she was a human rights worker for the party and brought the rights of women to the attention of the National Human Rights Commission in Chandigarh. The police noticed her actions and arrested her in May 1998. She was detained for four days, beaten and then released. After she recovered, she alleges that she continued in her work and when the police raided her house in September 1998, she was able to escape and hide until she left in November 1998, with the help of an agent.
[4] The Refugee Division considered the evidence adduced, including the Applicant's personal information form, her oral testimony, a personal identity document and the country documentary evidence submitted by the Refugee Claims Officer and by counsel. It found that the Applicant was not a Convention refugee for lack of credibility.
[5] The Applicant notes that the Refugee Division relied heavily upon the question of her identity in finding her not to be a credible witness and this cannot be regarded as a valid basis for such an assessment. In the absence of any conflicting or contradictory evidence, her sworn testimony ought to have been accepted as the truth.
[6] The Applicant submits that the Refugee Division erred in finding that the Applicant was not credible. She submits that the panel fell into a "nit-picking exercise". The reasons given by the Refugee Division for doubting the Applicant's credibility are mainly insignificant and irrelevant. The Applicant submits that omissions from the personal identification form of matters which are not directly related to the claim ought not to be considered as detracting from an applicant's overall credibility.
[7] The Respondent notes that the Refugee Division clearly and unequivocally determined the Applicant not to be a credible witness and, in the course of so deciding, offered detailed reasons for its decision citing numerous implausibilities in the Applicant's evidence which concerned central aspects of her refugee claim. Further that credibility determinations based on implausibility findings which are supported by the evidence before it, the Court should not interfere with the decision unless an overriding error has been made by the Refugee Division. On the basis of the evidence before it, the Respondent submits that it was reasonably open to the Refugee Division to make an adverse finding of credibility. The weight to be given to evidence adduced by the Applicant is a duty that falls squarely within the mandate of the Refugee Division.
[8] At the hearing before the Refugee Division, the onus is on the Applicant to provide clear and convincing proof of the well-foundedness of her claim to refugee status. The Respondent submits that in this case, the Applicant simply did not adduce sufficient credible evidence to establish that her fear of persecution was well-founded. The Refugee Division, as the trier of fact, was in the best possible position to assess the totality of the evidence before it and to determine, based on all the evidence, that a well-founded fear of persecution was not established.
[9] I agree with the Respondent that the central issue in the Refugee Division's determination that the Applicant was not a Convention refugee was the Applicant's credibility. Most of the Refugee Division's decision is concerned with outlining various inconsistencies with the Applicant's evidence.
It is well established that:
| "Questions of credibility and weight of evidence are for the CRDD panel in considering refugee claims. Thus, the panel 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 or it is found to be implausible. Particularly where there has been an oral hearing and the panel's assessment appears clearly dependant, as in this case, at least in part, upon seeing and hearing the witness, this Court will not intervene unless it is satisfied that the panel's conclusion is based on irrelevant considerations or that it ignored evidence of significance. In short, this decision must be found to be patently unreasonable on the basis of the evidence before the panel. |
| Where the determination of the panel ultimately turns on its assessment of credibility, an applicant for judicial review has a heavy burden, as the reviewing Court must be persuaded that the determination made by the panel is perverse or capricious or without regard to the evidence before it. Thus, even where the reviewing Court might itself have come to a different conclusion on the evidence it will not intervene unless the applicant establishes that the decision of the panel is essentially without foundation in the evidence." (Akinlolu v. M.E.I. (March 14, 1997), IMM-551-96 (F.C.T.D.), at pages 5-6. See also Sun v. M.E.I. (June 23, 1993), 92-A-7176 (F.C.T.D.) at p. 3 and Leung v. M.E.I. (July 8, 1993), A-7456-91 (F.C.A.) at pp. 1-2) |
[10] In the present case, I believe that the Applicant has failed to establish that the decision of the Refugee Division is "essentially without foundation in the evidence". The Refugee Division's determination that the Applicant was not credible was based on a thorough review of the evidence, documentary and oral, that was before it. The Refugee Division gave reasons for its negative finding of credibility in clear and unmistakable terms. (See Hilo v. Canada (Minister of Employment & Immigration (1991), 15 Imm. L.R. (2d) 199 (F.C.A.), where it was established that the Refugee Division had such a duty.)
[11] The Applicant submitted only one identity document: her Matriculation Examination Certificate. She testified that she had a passport since the end of 1991, but that she gave it to the agent in Seattle. To obtain the passport, she used her ration card that she left in India, together with her party membership card. When asked why she had not asked for any of the documents, the Applicant replied that she did not know where they were. The Refugee Division stated that it did not believe that the Applicant had no access to the documents and found it quite disconcerting that the Applicant would not obtain the documents she needed to prove her claim.
[12] The Refugee Division noted that the Applicant had seven months from the time she was informed by letter to bring personal identity documents to the hearing until the hearing actually took place. The Refugee Division also noted that although the Applicant alleged she had no one in India to retrieve the documents for her, she had a brother and a friend who could have assisted her. The Refugee Division stated that although it did not contest the authenticity of the Matriculation Certificate, it was not satisfied that it proved the identity of the Applicant. She could have had one of her family members living in Surrey, B. C. attend and testify as to her identity.
[13] The Applicant never mentioned in her personal information form that her husband was in Surrey, B.C. She left this information entirely off her personal identification form and it was only when asked by the Refugee Division to include her ex-husband's name that she did so. The Refugee Division also noted that the Applicant left her brother out of her personal identification form, even though she was asked to complete all information about her "married, separated and common law spouse, any children, ... parents, brothers, sisters (living or deceased)".
[14] The Applicant testified that she was a human rights worker for the Akali Dal Mann party. She stated that she would visit women and report to the National Human Rights Commission any violations the women had been subjected to. The Refugee Division reviewed documentary evidence that stated that the Punjab had only established its commission in July 1997. The Applicant had stated that she did human rights work since 1991. This discrepancy was noted by the Refugee Division.
[15] The list of inconsistencies goes on. The most flagrant omission and one which could have resolved the issue in her favour without doubt was the apparent total lack of concern by this Applicant to even attempt to obtain documents to prove her identity. Perhaps this may have been difficult, but throughout her testimony she maintained that her very active political role in the Akali Dal Mann party and her devotion to the harassed female population; how she was constantly referring women to the Human Rights Commission; even reported her own arrest and abuse to them. Why not write to such a reputable organization as the Human Rights Commission and request a letter confirming her work as well as indicating that they had recorded her report to them of her personal problems of arrest and mistreatment.
[16] I agree with the CRDD that there is absolutely no credibility and no validity whatsoever to this application.
[17] The application is dismissed.
JUDGE
OTTAWA, Ontario
November 1, 2000