Date: 20090129
Docket: IMM-3018-08
Citation: 2009 FC 88
Ottawa, Ontario, this 29th
day of January 2009
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
JEYARAJ
Jagatheesh
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), of a decision of
the Immigration and Refugee Board, Refugee Protection Division (the “Board”), dated
May 15, 2008, which found that the applicant was neither a Convention refugee nor
a person in need of protection, under section 96 or 97 of the Act.
[2]
The
applicant, Jagatheesh Jeyaraj, is a citizen of India who alleges
that he was persecuted in his homeland because he is homosexual.
[3]
The
Board set out essentially two bases for its finding that the applicant did not
qualify as either a Convention refugee or a person in need of protection: lack
of credibility, based in part on incongruities between the narrative in his
Personal Information Form (“PIF”) and his oral statements; and the existence of
an internal flight alternative (“IFA”) within India.
Credibility
[4]
The
Board had several bases for finding that the applicant was not credible:
-
The
applicant was unable to produce documents proving his whereabouts, including at
the time of the alleged persecution, and could produce no proof of his work in South Korea;
-
The
applicant omitted certain details from his PIF, which he raised at the hearing;
and
-
The
applicant waited over two months after coming to Canada before seeking to obtain refugee status.
[5]
In
the early passages of its decision, the Board acknowledged that the claimant had
valid identity documents, but noted that he was unable to provide any documents
– such as a letter of employment or pay stub – to prove he worked in Korea. The Board concluded
that “[t]he excuses given by the claimant to justify the lack of documents
about an alleged 10-month stay in South Korea … are implausible”.
[6]
The
respondent claims that the period of time spent in South Korea is at “the heart of the
claim”. The applicant, for his part, argues that the period he spent overseas
is not of great significance to his claim, playing no role in his narrative
except as the place where he happened to become romantically involved with his
lover.
[7]
In
my view, if the Board erred on this point, it was not in its conclusion
regarding the absence of documents proving that the applicant worked in Korea;
rather, it was in its failure to examine the identity documents to determine
whether they corroborated the applicant’s claims about his whereabouts at
relevant points in his narrative, and particularly at the time of his
persecution.
[8]
There
was no question in this case about the identity of the applicant; travel
documents were thus not required for this purpose. The applicant explained that
the agent who had assisted him in obtaining a visa to come to Canada had refused to return
his passport, and provided a police report produced in response to his
complaint about the theft. The documents that were presented to the Board
provided evidence, albeit circumstantial, of the applicant’s travel history.
For instance, the applicant’s driving permit, college ID card and diploma place
him in India from 1997 to 1999. The
issuance of an international driving permit in November 2003 is consistent with
his testimony that he traveled outside of India in December 2003 to go to South Korea. His passport, issued
in India in December 2004 – a copy of which was provided to the tribunal – is
consistent with his testimony that he had returned to India by October 2004,
following his time in Korea. Finally, the issuance
of a Canadian visa on August 8, 2005, as confirmed by Citizenship and
Immigration Canada, is consistent with his presence in India at that time. The Board
member offers no analysis of the significance of these documents in
corroborating the applicant’s account.
[9]
The
applicant further argues that the Board erred with respect to its finding that
he omitted certain details from his PIF, which he later raised at the hearing.
First, the Board alleges that the applicant failed to write in his narrative
that he had lost his job and could not leave his house until he fled to Canada as a result of his persecution.
However, the applicant writes the following in his PIF:
When
I came home it was to more beating from my father and brothers. I lost my
job. My personal sexual preference and story was leaked out. I could not
find work as somehow the gossip got to the new place either before I started
the work or a few days after I started. Each time I tried to get together
with my partner I was blocked by either his family or mine. Everyone was
humiliating me. Friends and relatives started to treat me as though I was
dirty. It came to such a stage where I could not go to any temple to pray or
any other public place. The priests at the temple I go to regularly since a
child told me to stop coming. They said many people have complained to the
management of the temple about me. They said it was against our religion and
that is a bad thing that I am doing. They said that if I continued to go to
the temple there were people who were going to kill me. The whole society
treated me like rubbish.
[My emphasis.]
[10]
This
excerpt plainly contradicts the Board’s finding. The Board’s second allegation
on this point is that the applicant failed to mention in his PIF that he had
taken a three-month non-certificate course in 2003, stating instead that he had
completed his studies in 1999. This new information was found to amount to a
contradiction. At the first hearing, the applicant attempted to explain the
omission:
By
Presiding Member
-
You were shown the PIF at the beginning, sir. You said it was true and correct.
It’s only after I start asking questions that you said that you actually went
to school much longer.
Q: Could
you explain the contradiction between your testimony and your Personal
Information Form?
A: […]
I had completed my education […] according to what I had stated in the PIF.
But, you know, that course which I did […] they don’t issue certificates or
anything like that for that. That’s why I did not mention about that in that.
[11]
In
my view, the position taken by the Board was unreasonable. The Board cites Basseghi
v. Canada (M.E.I.), [1994] F.C.J. No. 1867 (T.D.) (QL), where Justice Max
M. Teitelbaum observes:
It is not incorrect to say that answers
given in a PIF should be brief but it is incorrect to say that the answers
should not be complete with all of the relevant facts. It is not enough for
an applicant to say that what he said in oral testimony was an elaboration. All
relevant and important facts should be included in one’s PIF. The oral
evidence should go on to explain the information contained in the PIF. [My
emphasis.]
[12]
I
would add that it is not enough for a Board member to cite jurisprudence,
without engaging in any analysis of why the fact allegedly omitted from the PIF
is “important” or “relevant”. It is not a light matter to impute disingenuous
intent to an applicant; the Board has a responsibility to attempt to
differentiate those omissions that are innocent from those that are not. There
is not, in my view, any basis in the record for the Board to have concluded
that: “the claimant adjusted his answers as the panel questioned him about this
subject, which undermines his credibility”.
[13]
The
final point that undermined the applicant’s credibility, according to the Board
member, was the delay in bringing his application. This Court has previously
held that it is open to a Board member to make a negative inference with
respect to subjective fear, when there is a delay in applying for refugee
status (Huerta v. Canada (M.E.I.), [1993] F.C.J. No. 271 (C.A.) (QL), 157 N.R.
225). A
delay is, however, not a decisive factor (Osipenkov
v. Canada (M.C.I.), [2003]
F.C.J. No. 59 (T.D.) (QL), 2003 FCT 57, at paragraph
3). Given the flaws I have identified with respect to principal findings
grounding the Board’s conclusion about credibility, the delay does not, to my
mind, constitute a sufficient basis to dismiss the application.
Internal Flight
Alternative
[14]
In
this case, the Board turned to consider an IFA despite having identified
numerous credibility issues. At pages 5 and 6 of his decision, the Board member
cites a passage from the Response to Information Request IND42507.E, which,
notwithstanding a number of positive assertions about the treatment of
homosexuals in India, includes the following information:
… there have also been allegations that
Section 377 of the law is being used by corrupt police to extort money from gay
men …
With respect to available resources and
support for homosexuals in India, the PUCL states that “there are
organizations, helplines, publications/newsletters, health resources, social
spaces and drop-in centers in most of the major cities in India …; however,
despite the presence of such organizations, the PUCL adds that there is a “lack
of resources, personnel, government support and extreme societal/state
discrimination” and even the most established organizations reach only a small
number of sexual minorities …
[15]
According
to the U.S. Department of State Country Report on Human Rights Practices in India for 2006,
Section 377, which bans homosexual relationships, “was often used to target,
harass, and punish lesbian, gay, bisexual, and transgender persons”. In
addition, “homosexuals were detained in clinics against their will and
subjected to treatment aimed at ‘curing’ them of their homosexuality”. The UK
Home Office report on India of May 2007 cites sources reporting “widespread
police harassment, abuse and extortion against LGBT people and other sexual
minorities in India” and the
“impact of local media and popular psychology instilling fear and creating a
hostile climate for LGBT people”. Neither document is mentioned by the Board
member in his decision. He concludes:
After
reviewing the documentary evidence, the panel is of the opinion that the
claimant can relocate to another, more populated, area, where he would be free
from mistreatment by his family and the family of his supposed lover, and where
he could take advantage of agencies that assist homosexuals. The claimant is
likely to face discrimination, but not persecution within the meaning of Rajudeen…
[16]
In
Rajudeen v. Canada (M.C.I.), [1984] F.C.J. No. 601
(QL),
55
N.R. 129, the Federal Court of Appeal turns to the dictionary
for guidance on the meaning of persecution, which was not defined in the former
Immigration Act, S.C. 1976-77, c. 52, and is not defined in the present
legislation. Accordingly, to “persecute” is: “To harass or afflict with
repeated acts of cruelty or annoyance; to afflict persistently, to afflict or
punish because of particular opinions or adherence to a particular creed or
mode of worship”. Similarly, “persecution” is: “A particular course or period
of systematic infliction of punishment directed against those holding a
particular (religious belief); persistent injury or annoyance from any source”.
[17]
As
Justice Danièle Tremblay-Lamer notes in Soto v. Canada (M.C.I.), [2002]
F.C.J. No. 1033, 2002 FCT 768, at paragraph 10:
The
distinction between persecution and other acts of harassment not warranting
international protection will not always be easy to make. It is a mixed
question of law and fact to be determined on case-by-cases basis by the Board.
[18]
The
Board in this case, however, did not mention the above documentary evidence in its
decision and made no attempt to explain why the treatment described in the
reports cited, and elsewhere in the documentary evidence, does not amount to
“persecution”. Had such mention been made and such an analysis been conducted,
its conclusion would warrant deference from this Court. However, the failure to
address relevant and important allegations contained in the above reports, and
the complete absence of any analysis, constitute, in my view, errors warranting
the Court’s intervention.
[19]
For
all the above reasons, the application for judicial review is allowed and the
matter is sent back for re-determination by a newly constituted panel, in
accordance with these Reasons.
JUDGMENT
The application for judicial
review is allowed. The decision rendered on May 15, 2008 by the Refugee
Protection Division of the Immigration and Refugee Board is dismissed and the
matter is sent back for re-determination by a newly constituted panel, in
accordance with the Reasons for Judgment rendered this day.
“Yvon
Pinard”
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