Brar v. Canada (Minister of Citizenship and Immigration), 2004 FC 938 (CanLII)

Date: 2004-06-29
Docket: IMM-5026-03
Citation: Brar v. Canada (Minister of Citizenship and Immigration), 2004 FC 938 (CanLII), <http://canlii.ca/t/1htrx>, retrieved on 2016-05-08
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Decisions cited

  • Aguebor v. Canada (Minister of Employment and Immigration), 160 NR 315, [1993] FCJ No 732 (QL), 42 ACWS (3d) 886 (not available on CanLII)

Date : 20040629

Docket : IMM-5026-03

Citation : 2004 FC 938

Ottawa, Ontario, this 29th day of June, 2004

Present:          THE HONOURABLE MR. JUSTICE SIMON NOËL                              

BETWEEN:

                                                      JASPREET SINGH BRAR

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                       Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision made by Yves Boisrond of the Refugee Protection Division of the Immigration and Refugee Board ("the Board"), dated June 12th, 2003, wherein the Applicant, Jaspreet Singh Brar, was denied Convention refugee status and determined not to be a person in need of protection.


STANDARD OF REVIEW

[2]                The only ground for this application is the credibility findings of the Board. The Board rejected the Applicant's refugee claim because it found that the evidence she presented was not credible. The Board is expert in determining refugee claims, has direct access to the testimony of the witness, and is usually in the best position to assess the credibility of witnesses. Accordingly, the standard of review for findings of credibility made by the Board is patent unreasonableness, as cited in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.) where the Federal Court of Appeal stated:

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.

FACTS

[3]                The Applicant, a Sikh woman, is a citizen of India who alleges a well-founded fear of persecution based on her membership in a particular social group. Specifically,her father-in-law and her husband's uncle are members of the Akali Dal Amritsar party and her husband's cousin is a member of the All Indian Sikh Student Federation. The latter two were arrested by Indian police and accused of helping terrorists as well as being involved in violent incidents in the Punjab and Delhi. Both her husband's cousin and uncle were sought after by police and were arrested and tortured at different times.

[4]                The Applicant claims that the police, in an attempt to find her husband's cousin, arrested her father-in-law and husband and tortured them. When the father-in-law filed a complaint against the police because of his arrest, the police conducted further raids on the family home. The Applicant claims that she and her mother-in-law were beaten by police during one raid and that during the same raid her husband was arrested. On May 3rd, 2001 the police raided the family home again, arrested her father-in-law and requested the Applicant bring her husband to the police station.    The same day the police returned and arrested the Applicant who was then about three months pregnant.    She states that she was taken to the police station where she was beaten, tortured and raped. The Applicant claims she was released after signing a blank document and was given a month to produce her husband.

[5]                After this incident, the Applicant, on the advice of her father, decided to leave Punjab and went to Chandigarh where she was later joined by her husband. In August 2001 she and her husband went to Delhi where they obtained false documents in order to leave India. On September 30th, 2001 the Applicant's husband was arrested when they attempted to leave India with false documents. The Applicant made it to Canada, however.


THE BOARD'S DECISION

[6]                Upon analysing the Applicant's oral testimony, her Personal Information Form ("PIF") and the documents she submitted, the Board determined that she was not credible and gave several reasons, including:

a.          the Applicant alleges that she was raped by police; however, this fact was omitted in a letter written by her municipal councillor in support of her claim. The Applicant verbally stated during the hearing that the councillor was well aware of the fact that she had been raped and stated so in his letter, but when shown the letter was unable to indicate where the councillor would have mentioned the assault;

b.          the Applicant testified that, following the rape, she had received medical treatment, but the Board found that her answers to its questions were unclear and suggested that she had never been raped, nor been taken to see a doctor;


c.          the Board also found that the Applicant's response to the question of why, if her husband had been arrested, the police would still be interested in her, was not persuasive and determined that the Applicant's assertion, late in her testimony, that police had also accused her of having ties with the terrorists, cast further doubt on her credibility. The Board further noted that the Applicant had not mentioned this fact in her PIF. This brought the Board to conclude that since her husband was arrested on September 30th, 2001, the police would not have an interest in her and that there was no reason to fear returning to India.

ANALYSIS

Credibility

[7]                In this case, the Applicant's credibility was in question and the Board was required to determine, on the basis of the evidence presented, whether there were grounds to support the claim. The Applicant submits that the Board based its negative credibility finding entirely on two areas of the evidence she presented that it found to be implausible. Specifically, because of the alleged contradiction between her oral testimony about a rape and the municipal councillor's letter, tendered as evidence to support her claim, the Board decided not to afford any weight to the letter and was led to doubt her overall credibility. Having reviewed the evidence, including the hearing transcript, I do not think that such a finding is patently unreasonable. If such an event had occurred, the importance of it dictates that it should have been mentioned.


[8]                Furthermore, in reaching its decision, the Board also raised the issue that the Applicant's PIF contains a description of extremely harsh treatment endured at the hands of police, but that she only mentions in a cursory manner any medical attention she would have received as a result. From the responses she provided to questions in this regard, the Board determined that the manner in which she behaved led them to conclude that she had never been raped, nor seen by a doctor. Again, my reading of the hearing transcript supports the Board's finding that her testimony was "laborious" on that point. The testimony on the medical treatment following the rape is extremely limited and the answers that were given came after being probed to answer. Again, this finding is not patently unreasonable.

[9]                The Board also raised the discrepancy between her oral testimony concerning the rape and subsequent medical treatment and the fact that she answered, at question 16 of her PIF, that she had never had "any serious disease, physical or mental disorder". The Applicant submits that the Board not only erred in this assessment, but also failed to consider the balance of the evidence and that the Board found the remaining evidence consistent and supported by the documentary evidence, such as the Amnesty International report, that was before it.

[10]            With regards to the alleged contradictions between the oral testimony and the PIF, I note that question 16 of the October 1st, 2001 PIF was worded as follows:

Have you ever had any serious disease, physical or mental disorder?

Avez-vous déjà souffert d'une maladie grave ou de troubles physiques ou mentaux?

And on page 37 of the hearing transcript, when the Applicant was asked why she answered "no", she replied:

" Yes, I had... I had no disease, but was only raped and I thank God that my child was alright"


The Applicant further adds that since her arrival in Canada, she has been admitted to hospital. I am therefore of the opinion that, because of the wording used in question 16 of the PIF and the answers she provided at the hearing, the Applicant did not understand question 16 of the PIF to include rape. My understanding of the intent of question 16 is that it is used to gather responses on diseases whether mental or physical. A rape is not a disease nor a physical or mental disorder, but a vicious act imposed on the most intimate privacy of a person. Her answers were to the point and the Board misunderstood the purpose of question 16. Having come to this determination, I do not think that such an error justifies a conclusion that on the whole this decision is patently unreasonable. The other findings are of such importance that they override any misinterpretation of question 16.   

[11]            In any event, the conclusion that the applicant does not have any reason to fear returning to her country since the reason for her mistreatment by the police has been neutralized because of her husband's arrest - is supported by the evidence and is reasonable.

CONCLUSION

[12]            On a review of all the evidence before me, I conclude, based on a standard of patent unreasonableness, that the Board rendered a decision that does not justify any intervention on my part.

[13]            The parties were asked if they had any questions to propose for certification and they did not.

                                               ORDER

THIS COURT ORDERS THAT:

The application for judicial review is dismissed and no question will be certified.

                    "Simon Noël"                    

Judge


                        FEDERAL COURT OF CANADA

                                                     

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-5026-03              

STYLE OF CAUSE: Jaspreet Singh Brar v. MCI

PLACE OF HEARING:                                 Ottawa, Ontario

DATE OF HEARING:                                  June 28th, 2004

REASONS FOR ORDER:                            The Honourable Mr. Justice Simon Noël

DATED:                     June 29th, 2004

APPEARANCES:

                                  

Rezaur Rahman                                                 FOR APPLICANT

Lynn Marchildon                                              FOR RESPONDENT

SOLICITORS OF RECORD:

Rezaur Rahman                                                 FOR APPLICANT

Ottawa, ON               

                                                                       

Morris Rosenberg

Deputy Attorney General of Canada                  FOR RESPONDENT


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