Date: 20030924
Docket: IMM-926-03
Citation: 2003 FC 1122
Montreal, Quebec, September 24, 2003
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
NIRMAL GYAWALI
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 of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated January 22, 2003, wherein the Board determined that the applicant was not a Convention refugee according to Section 96 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"), nor a "person in need of protection" according to paragraphs 97(1)(a) and (b) of the Act.
[2] The applicant is a 33-year-old citizen of Nepal who claims refugee protection as a Convention refugee for reasons of imputed political opinions as well as for reasons of risk to life and a serious risk of cruel and unusual treatment or punishment and/or risk of torture.
[3] The applicant was born in the Lalitpur region of Nepal. During the 1990s he worked for the NGO CARE, did administrative work in a hotel and was co-owner of a hardware store.
[4] He alleged the following facts:
[5] On September 21, 1999, the applicant was visiting a village when he met a group of Maoist rebels collecting donations. The applicant refused to make a donation and the rebels threatened him. The next day, the Maoist rebels called the applicant's hardware store demanding 50,000 rupees. They also threatened the applicant and his associate after they refused to pay.
[6] On November 13, 1999, the Maoist rebels came to the applicant's store demanding the money. They threatened the applicant again. On February 27, 2000, the Maoists returned to the applicant's store with weapons and demanded the money. They started hitting and kicking the applicant and his associate when they refused to pay and took the money that was in their cash register. The applicant and his associate were treated in a clinic and decided to sell their business.
[7] The applicant started thinking of ways to leave the country, and thought of studying abroad. He applied to colleges in Canada. In June of 2000, the applicant moved from his village to Lalitpur which was a six-hour drive away. The Maoist rebels called him there too and threatened his life.
[8] On September 3, 2000, the applicant left for Canada to begin his studies. After his departure, the Maoist rebels went to his home and threatened his family.
[9] The applicant had been planning to return to Nepal after completing his course, but in the last week of January 2002, Maoist rebels burned down his family's house and farm. They also looted the house and destroyed the farm equipment. His family was no longer in a position to send him any money.
[10] The applicant moved from Vancouver to Montreal and made his refugee claim on February 26, 2002.
[11] The Board's decision to refuse the applicant's claim was based on its finding that the applicant had not provided credible nor trustworthy evidence. The Board declared it had serious doubts as to the applicant's motives in coming to Canada. It especially questioned why he made no refugee claim upon his arrival to Canada if he had left his country out of fear for his life. The Board also states that the 17-month delay between the applicant's arrival in Canada and his claim for refugee status affected his overall credibility.
[12] The Board placed great importance on its finding that the inability of the applicant's family to provide him with money was the "triggering event" that led him to make his claim. In addition, it cites the fact that the applicant did not go to the Nepalese police with his problems concerning the Maoist rebels and the fact that he did not attempt to relocate to a larger metropolitan area as being other factors contributing to its finding as to the applicant's lack of credibility.
[13] Consequently, the Board concluded that the applicant's behaviour is not commensurate with the true subjective fear of persecution required in order to grant a refugee claim.
[14] The Board also found it implausible that the applicant had not had more problems with the Maoists and questioned the fact that he was not more seriously harmed by them, as opposed to receiving only threats in 1999 and 2000. This finding further eroded the applicant's credibility in the Board's eyes.
[15] The applicant first submits that he had no obligation to file his refugee claim at any earlier time. He states that from the time he arrived in Canada until the time he filed his claim, he had enjoyed a valid temporary status and was not in a position where he might be forced to go back to Nepal. I agree.
[16] Although case law generally indicates that failure to apply for refugee status immediately upon arrival or within a reasonable delay can be an important factor to consider in determining a claimant's credibility (Huerta v. Canada (Minister of Employment and Immigration) (1993), 157 N.R. 225 (F.C.A.), there exist situations in which negative inferences may not be drawn and failure to apply for refugee status immediately upon arrival in a Convention country cannot be the sole basis for questioning a claimant's credibility.
[17] In Hue v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 283 (F.C.A.), the applicant had worked on a ship for the duration of the five-year delay between his departure from home and his claim for refugee status. The Court found that it was evident he had no fear of having to return to his homeland while he had his sailor's papers and a ship to sail on, that fear was realized only when he was given leave from the ship and was faced with returning to the Seychelles Islands.
[18] In the case at bar, the applicant had a student visa and had also made an application for permanent residency. It is clear that it was not until he lost his financial support from his family in Nepal that he feared having to return there because he could no longer pay for his studies. Clearly there is a direct parallel with the sailor on the ship who is finally given leave and has nowhere to go but home. Both had left home for fear of persecution and had found a safe place to stay and work, so much so that they did not feel the need to apply for refugee status as they were safe for the time being. Suddenly, both found themselves in peril of returning home through circumstances over which they had no power or influence and immediately filed a claim.
[19] It is thus not reasonable for the Board to draw any negative inference against the applicant.
[20] The applicant further submits that the Board erred by ignoring evidence which demonstrates that he could not obtain State protection. Again, I agree with the applicant.
[21] The Board states that the applicant had presented no evidence demonstrating he had asked for protection from the police authorities in Nepal, nor had he attempted to relocate to a metropolitan area such as Kathmandu in order to flee the rebels. Moreover, the Board claims there is no evidence the authorities would not have protected him had he gone to them for help.
[22] However, the applicant's evidence clearly demonstrates that the rebels had threatened to kill him if he ever attempted to go to the police, which was the reason why he could not go to the police and chose to leave the country.
[23] Further, there was overwhelming documentary evidence showing that the threats were extremely serious and that the Board's own evidence showed that police officers were killed in great numbers by the rebels.
[24] In such a situation as stated by La Forest J. in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at p. 724: "[...] it would seem to defeat the purpose of international protection if a claimant would be required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness."
[25] The applicant further argues that the Board misconstrued the evidence relating to his internal flight alternative (IFA) suggesting that he could have gone to Kathmandu. The evidence shows that the applicant spent three months in Lalitpur, a city that is across the river from Kathmandu, before leaving for Canada. The rebels found him there and threatened him again. Thus, the Board misconstrued the evidence on this point.
[26] Finally, the Board concluded that it was implausible that the rebels had not been more violent with the applicant. Again, the documentary evidence indicates that the Maoists also intimidate, threaten, harass and extort money from the civilian population in Nepal. Thus, there was nothing implausible in the applicant's story.
[27] In summary, the Board did commit many reviewable errors which warrant the intervention of the Court.
[28] For these reasons, this application for judicial review is allowed, the decision of the Board is set aside and the matter is remitted back for rehearing and redetermination before a newly constituted panel.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed, the decision of the Board is set aside and the matter is remitted back for rehearing and redetermination before a newly constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-926-03
STYLE OF CAUSE: NIRMAL GYAWALI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 23, 2003
REASONS FOR ORDER AND ORDER :
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: September 24, 2003
APPEARANCES:
Mr. Michel Montbriand FOR THE APPLICANT
Ms. Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Michel Montbriand FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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