Date: 20051219
Docket: IMM-3068-05
Citation: 2005 FC 1710
Ottawa, Ontario, December 19, 2005
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
JOGINDER KAUR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for leave and for judicial review of a decision by a member of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated April 25, 2005. It was held that the applicant, Joginder Kaur, was not a Convention refugee or a person in need of protection. Pinard J. allowed the application for leave on September 9 of last year.
FACTUAL BACKGROUND
[2] The applicant, Joginder Kaur, is claiming refugee status in Canada on the grounds that the Indian police persecuted her. She is a citizen of India, of the Sikh religion, and she lived in Punjab in the Jalandhar district. She and her husband lived peacefully on a farm, with their son Makhan Singh; she is 66 years old.
[3] Ms. Kaur alleges that her son had a friend, Kuljit Singh, like him a member of the Shiromani Akali Dal Mann party. Both were allegedly arrested by the police in 1999, on the basis that Kuljit had been implicated in transporting arms for the militants and that Makhan had connections with the militants and was involved in their activities. The applicant claims that her son had been tortured and then released one week after his arrest, with the help of the village council and a bribe paid to the police. When he was released, the son was warned that he had to help them stop the militants. As for Kuljit, he was paroled in 2000, and then hid where the authorities could not find him.
[4] In May 2004, the applicant's son was again arrested, on the grounds that he still had connections with Kuljit Singh and the militants, and that he was too involved with their activities. The police alleged that Makhan Singh knew that his friend had returned to India after a training camp in Pakistan, and that he knew the place where he and other militants were hiding as well as their plans to cause trouble during the elections.
[5] As the police denied having arrested their son and could not locate him, the applicant and her husband decided to lodge a complaint against the police after retaining the services of counsel by the name of Ranjan Lkanpal. After that complaint was filed on June 1, 2004, the police first reacted by proceeding to search their farm and they questioned them regarding Kuljit Singh and terrorists. Then they allegedly arrested the applicant and her husband, and they were tortured and beaten because they had defamed the police authorities by filing a complaint against them.
[6] The applicant and her husband were eventually released the next day, with the help of another bribe paid by the village council, on condition that no complaint be lodged against the police, that they not tell what had happened to them, and that they report to the station every month. They had both been admitted to the hospital following their release, and on June 6, 2004, the applicant's husband died as a result of his injuries.
[7] The applicant says that she then decided to leave Punjab and on June 8, 2004, she obtained a passport from the Indian authorities. First, she went to an uncle's home in New Delhi on June 25, 2004. Her uncle told her that her farm had again been searched and that her family members had been harassed because she had not reported to the police station as required; the applicant then decided to leave India for Canada. She therefore left her country on September 20, 2004, arriving in Toronto the same day. She sought protection in Montréal on September 23, 2004.
THE BOARD'S DECISION
[8] The Board dismissed Ms. Kaur's claim on the basis that it did not find her to be credible. In making that determination, it noted several troubling aspects of her testimony tending to establish in its opinion that the applicant had fabricated the existence of her son.
[9] Specifically, the Board noted that the applicant could not remember her son's date of birth, or what he studied or at which institution he took his classes. The applicant also revealed that she had given birth to her son when she was 20 years old and that he was now 35 years old; yet, she appears to be 66 years old since she was born on July 13, 1939. Also, Ms. Kaur did not have any photographs of her son, or even documents regarding him. The only evidence that she had in that respect was a membership card from the party that her son belonged to, which did not have a photo or a date of birth.
[10] The Board also noted inconsistencies between her testimony and her Personal Information Form regarding the date that she and her son and husband were arrested and regarding when she saw her son for the last time. The applicant was also very confused with respect to her husband's death certificate (first she stated that her counsel had the original, only to state later that the sarpanch had it), as well as when she was asked whether she was wanted by the police in her country.
[11] Considering these contradictions and these gaps in the applicant's memory, the Board refused to believe her and did not assign any probative value to the documentary evidence she had filed. The essence of the Board's reasons are found in the following paragraphs:
All of this makes us believe that the claimant invented a story in order to get a status in Canada. We listened carefully to the submissions of the claimant's counsel, in particular when she told us that the culture was different, trying to explain the incapacity of his client to tell us more about her son, his age, his birth date, his occupation, etc. With respect for his opinion, we do not think that a woman, who had only one child, could not at least remember approximately how old she was when she gave birth or how many years after her marriage he was born. The lawyer also told us that she did not have a lot of education: we are very sensitive to that, but it does not explain either why the claimant was unable to tell us at least in what field her son was studying, or in which college. Without knowing the specific date her son was born, we can't help feeling that she was much too vague in answering our questions regarding her son. She was able to tell us precisely her birth date, as well as the year of her marriage. We do not see why she could not have told us at least the year of birth of her only son.
All of this to say that we do not believe in the existence of her son. The explanations given by her as to why she had no identity documents or belongings with regard to her son are not satisfactory either.
Not having believed in her son's existence, we do not believe in the rest of her story since it is based on her son's problems, which then in turn caused problems to her husband and herself.
Since we did not believe her story, we do not give any probative value to the following documents: P-2 (receipt from Akali Dal Party), P-3 (death certificate of Avtar Shingh - we also only have a copy, no original was provided), P-4 (sarpanch's affidavit), P-5 (lawyer's letter), P-6 (medical document) and P-7 (psychological evaluation). The psychotherapist described such symptoms as frequent headache, problems to sleep and eat, depressive reactions, etc. Those problems might exist, but there is no connection between them and the problems alleged in the narrative because we did not believe them.
ISSUES
[12] This application for judicial review raises only the following issues:
- What is the appropriate standard of review in this case?
- Did the Board make a reviewable error in assessing the applicant's credibility?
ANALYSIS
[13] In the context of her written submissions, the applicant's counsel raised three arguments. First, she argued that the Board had erred in not assigning any credibility to Ms. Kaur's story, and had not assigned enough weight to the applicant's mental state and the psychological report filed into evidence, or to her limited education and her age. Second, she alleged that the Board had erred in law or breached a principle of natural justice in refusing to deliver a subpoena to the immigration officer at the port of entry and to the interpreter; Ms. Kaur's counsel in fact argued that both of these individuals should have been heard because the Board had relied on inconsistencies identified between her statements at the port of entry and both her PIF and her testimony. Finally, the applicant's counsel claimed that the Board erred in not proceeding with an independent analysis with regard to subsection 97(1) of the Immigration and Refugee Protection Act.
[14] At the hearing, the applicant's counsel did not argue the last two of her three arguments and candidly admitted that they were [TRANSLATION] "less important". That was a wise decision, since those claims appear to me to be unfounded. In that regard, I would endorse the submissions made by the respondent's counsel in his memorandum.
[15] Specifically, the respondent was entirely correct to contend that the Board can take into account the contradictions which may exist between the documents at the port of entry, the claimant's testimony and the PIF (Al Dalawi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1224 (F.C.) (QL); Begum v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1563 (F.C.) (QL); Sidhu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1355 (F.C.), 2002 FCT 1031. On the other hand, these inconsistencies were in this case quite secondary and were not at the heart of the Board's reasons.
[16] With respect to the lack of a distinct analysis regarding subsection 97(1), the Board was entirely justified not to undertake that exercise from the moment where it determined that the applicant was not credible. If the Board was correct on that point, it is clear that the applicant could not have been considered to be a person in need of protection. Incidentally, that is what this Court has determined on numerous occasions: Bouaouni v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1540; 2003 FC 1211 (QL); Soleimanian v. Canada(Minister of Citizenship and Immigration), [2004] F.C.J. No. 2013; 2004 FC 1660 (QL); Brovina v. Canada(Minister of Citizenship and Immigration,[2004] F.C.J. No. 771, 2004 FC 635 (QL).
[17] Therefore, only the issue of credibility remains. On that point, the appropriate standard of review is that of patent unreasonableness. This is the case because it is a question of fact, at the very heart of the Board's mandate and regarding which the Board has a well-established expertise: Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 (QL); Cepeda-Gutierrez v. Canada(Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (QL). The Board therefore has the authority to find that the claimant is not credible because of the implausibility of the evidence filed by the claimant, or in relying on common sense and reason: unless its findings are based on clear and unmistakable terms and are not based on unreasonable inferences, they must be maintained (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, [1993], F.C.J. No. 732 (F.C.A.) (QL); Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.) (QL); Mohacsi v. Canada (Minister of Citizenship and Immigration (2003), 27 Imm. L.R. (3d) 91, [2003] F.C.J. No. 586, 2003 FCT 429 (QL).
[18] There is no doubt, on reviewing the record and the testimony of Ms. Kaur, that there are many inconsistencies in her story and memory lapses that are difficult to explain. We can ask ourselves, in fact, how a mother could forget even the year of her only son's birth. In fact, it appears that the only date that she truly remembers is her date of birth (in fact, the only other date that she remembers, namely the date of her marriage, is not the one that she gave in her PIF).
[19] The applicant's counsel argued, before the Board and before this Court, that the applicant's age and especially her psychological state can explain her difficulties in testifying. One might in fact expect that Ms. Kaur could be in a state of psychological shock if indeed she lost her son and her husband, as her entire universe fell apart.
[20] This is indeed the assessment made by the psychotherapist who assessed her. In her report filed into evidence, she clearly established that the applicant was suffering from post-traumatic stress syndrome and she described the symptoms as follows:
It is my impression that Mrs. Kaur suffers from post-traumatic stress disorder on the basis of : 1) the mental status examination, 2) the symptoms described above, which are consistent with a post-traumatic stress disorder diagnosis according to the DSM-IV diagnostic criteria (Diagnostic and Statistical Manual of Mental Disorders) and 3) she appeared visibly upset at painful moments during the interview. Some of these symptoms include difficulty concentrating, nightmares, flashbacks, decreased interest in the outside world, avoidance of stimuli associated with the traumatic events, and symptoms of increased arousal. She is also suffering from a moderate depressive disorder.
The trauma has scarred Mrs. Kaur in various ways. She suffers from knowledge of her son's two arrests, torture and the uncertainty about his fate and probable death. Her husband was also tortured and died as a result of his injuries. She has lost her family and is very lonely and in mourning. She feels that her life is ruined, but according to her religion, it is a sin to take her own life.
Mrs. Kaur also appears to be somewhat confused, sometimes not remembering certain details of her story or the exact date of events. This is consistent with the memory loss and confusion characteristic of many post-traumatic stress disorder victims. In fact, her difficulty in remembering why she and her husband were arrested happened as she became anxious while describing her arrest and beating.
[21] It is true that the Board did allude to this expert report in the reasons of its decision. At page 6 of the decision, it reads: "The psychotherapist describes such symptoms as frequent headache, problems to sleep and eat, depressive reactions, etc. Those problems might exist, but there is no connection between them and the problems alleged in her narrative because we did not believe them". I am not persuaded, however, that this report was given all the weight that it deserved, or that these two sentences were sufficient to ascertain the applicant's true psychological state.
[22] But there is more. As it did not believe the applicant and as it made little of the psychological assessment report, the Board felt justified in not assigning any probative value to several documents filed into evidence which all tended to corroborate the applicant's story. These documents, whose authenticity are not at issue, were a membership card from the party that the applicant's son belonged to, a photocopy of her husband's death certificate, an affidavit from the sarpanch, a letter from counsel mandated by the applicant to lodge a complaint against the police, as well as a medical certificate confirming that the applicant had been treated at the hospital from June 3 to 5, 2004, for multiple contusions and injuries, and psychological sequelae.
[23] It is undoubtedly true that the Board can disregard documentary evidence in certain cases when the refugee claimant is found to lack credibility. This attitude can certainly be justified when the authenticity of the documentary evidence itself is unreliable: see, by way of illustration, Hamid v. Canada(Minister of Employment and Immigration), [1995] F.C.J. No. 1293 (F.C.) (QL). But one must be careful in adopting such an approach when the documentary evidence appears authentic and seems to corroborate the claimant's story. In such a case, the Board must at the very least consider that evidence to determine whether it is plausible and whether it can lend credence to the statements of the refugee claimant. It could be that a story which appears unbelievable because it is told by a claimant who is unsophisticated, hesitant, inconsistent, or experiencing frequent memory lapse, could be confirmed by documentary evidence that is reliable and trustworthy.
[24] In this case, I have determined (not without some hesitation) that the Board's decision was made in a perverse manner without regard to the material before it. Although the applicant's story appears, a priori, full of inconsistencies and raises several questions, the Board was required to assess it while considering her psychological state as well as the evidence submitted, which it did not do. For these reasons, the decision must be set aside.
"Yves de Montigny"
JUDGE
Certified true translation
Kelley A. Harvey, BCL, LLB
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