Date: 20010919
Docket: IMM-4869-00
Neutral citation: 2001 FCT 875
Between:
RAVINDER KAUR
GURPREET SINGH
JASVIR KAUR
TIRATH SINGH
Applicants
- and -
DEPARTMENT OF CITIZENSHIP AND
IMMIGRATION CANADA
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision dated August 2, 2000, by the Convention Refugee Determination Division, in which it was determined that the applicants are not Convention refugees and their claims have no credible basis.
[2] The principal applicant, Ravinder Kaur, 23, her two minor children, Jasvir Kaur, 2, and Tirath Singh, 3, as well as her brother, Gurpreet Singh, 18, are all citizens of India. The principal applicant was designated as the representative of her two minor children and her brother, who is deaf and mute. All of their claims are based on that of the principal applicant, who alleges having a well-founded fear of persecution for reasons of membership in a particular social group.
[3] The Convention Refugee Determination Division based its finding of no credibility mainly on the applicant's failure to include in her Personal Information Form ("PIF") her claim that she had been raped by police during her detention. At the beginning of the hearing, the applicant amended her PIF to include that particular incident. When asked why she had not mentioned the rape earlier, she replied the following:
Counsel So why did not you tell it before so that I can send to the ...
to the Refugee Board the corrections that these are the main elements
which should be included in the statement?
Applicant I was afraid. I was afraid. I thought if somebody gets to know,
then among the Indian people it's a bit ... it's very
shameful for me.
Counsel So why you decided to tell today?
Applicant So that I should get justice.
Later on, the applicant discussed her visit to the doctor after her arrest:
Panel And what did you tell the doctor at the hospital?
Applicant I told that I ... my head is hurting and I'm feeling dizzy.
Panel Did you speak about the rape?
Applicant No.
Panel Why?
Applicant Because they're Indian people also, then they insult
people that this happen to.
[4] The Refugee Division found it hard to believe that the applicant had not at least tried to have her physical health checked after the rape; however, the Refugee Division made no comment about the following explanations the applicant provided:
Panel But what did you do? Did you comb your hair? Did you
open a door? Anything, any details of what you did after
you left the police station.
Applicant I didn't do anything. I was as if I was crazy. And my father
said what has happened to you, but I didn't tell him anything.
And then I came back and I hugged my children and I
started crying. And I started hitting my head against
the wall.
...
... And everybody was saying tell us what has happened
to you, but I didn't tell anything. And I said I don't want
to stay and I want to ... I wanted, then I tried to kill myself.
And then my mother said that who is going to look after
your little children. And then I thought I'm not going
to stay here any more.
[5] The applicant's reaction may very well be likened to that of a rape victim, especially given the social and cultural context described in the documentary evidence. Since the applicant's explanations touched upon the central issues of her claim, in my view, the Refugee Division erred by failing to consider the social and cultural circumstances which, according to the applicant, prevented her from talking about the rape given the shame and fear she felt in its aftermath. At the very least, I believe the Refugee Division should have discussed those explanations that seemed reasonable at first glance (see Hue v. Minister of Employment and Immigration (March 8, 1988), A-196-87, [1988] F.C.J. No. 283 (C.A.) (QL)).
[6] In my opinion, the error of the Refugee Division is sufficiently serious, under the circumstances, to warrant this Court's intervention. Therefore, the application for judicial review is allowed, the decision of the Convention Refugee Determination Division is set aside, and the matter is referred back for redetermination by a newly constituted panel.
"YVON PINARD"
JUDGE
OTTAWA, ONTARIO
September 19, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-4869-00
STYLE OF CAUSE: RAVINDER KAUR et al. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 9, 2001
REASONS FOR ORDER BY PINARD J.
DATED: September 19, 2001
APPEARANCES:
Eleanor Comeau FOR THE APPLICANT
Marie-Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Eleanor Comeau
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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