Date: 20090212
Docket: IMM-2883-08
Citation: 2009 FC 140
Ottawa, Ontario, this 12th day
of February 2009
Present: The Honourable Orville
Frenette
BETWEEN:
Jasvir Kaur SOKHI
Maninder Singh SOKHI
Ravinder Kaur SOKHI
Ramandeep Singh SOKHI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”) of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the
“Board”) rendered on May 30, 2008, determining that the applicants were not
Convention refugees nor persons in need of protection pursuant to
sections 96 and 97 of the IRPA because they were not credible and failed
to prove a reasonable fear of persecution should they be forced to return to
India.
The Facts
[2]
The
applicants are citizen of India from Punjab State and
were baptised in the Sikh Faith. Ms. Jasvir Kaur Sokhi is the mother of
Maninder Singh Sokhi, Ravinder Kaur Sokhi and Ramandeep Singh Sokhi. The applicants’
claim is based on that of Ms. Sokhi (the “principal applicant”) and Mr.
Maninder Singh Sokhi (the “male claimant”).
[3]
The
principal applicant’s husband, also a citizen of India, is a civil
engineer who worked in Dubai for 20 years. He visited his family in India,
irregularly, but sent money to provide for their needs.
[4]
The
principal applicant alleges fear of persecution by the police. She claims that
she was arrested by the police in September 2003, mistreated and beaten by them
because they believed that militants had stayed at her house. The police were
led to the principal applicant’s home by a “hawala” arrested in Delhi. The
principal applicant’s husband had sent some money through this person two weeks
before and this person had her address in his diary.
[5]
The
principal applicant contends that the police accused her of knowing about her
husband’s illegal activities, including that he was involved with Muslim
militants. She adds that her husband was detained in 2002 while visiting in India and was
released after paying a bribe.
[6]
The
principal applicant claims she sought medical treatment for stress following
her arrest in India in 2003. She
claims she was hospitalized from two to four days. She did not remember in what
year. She produced a medical certificate from a Dr. K. K. Sidhu, emanating from
his clinic. She did not remember his name or what treatment she received. The
certificate does not detail the injuries or indicate the treatment given.
[7]
In
2003, she followed her husband to Dubai but, in 2004, problems
occurred there and the police questioned her about them. After this incident
she went to England for seven
days with her husband.
[8]
In
February 2005, she came to Canada with her husband and children but four days
later he returned to India where he still resides.
[9]
The
applicant is a 44-year-old woman who consulted medical specialists in Canada about her
depression. They diagnosed her ailment as “severe post-traumatic stress
syndrome” caused by the refugee process and prescribed her medication. The
hearing by the Board was postponed numerous times at her counsel’s request
based on this reason.
[10]
In
one report by Dr. Jaswant Guzder, a child psychiatrist at the Montreal Jewish General
Hospital, dated January 15, 2008, he wrote: “… in consultation with Dr.
Beauregard, we are urging the Refugee Board to end her uncertain status and
grant her asylum in Canada”. A psychological report was prepared in 2006 by
David L. B. Woodbury (who is an orientation specialist not authorized to
prepare psychological reports) and another report was made by Dr. Sylvie Laurion,
a registered psychologist, dated February 8, 2007.
[11]
The
male claimant contends that he fell in love with a Muslim girl in January 2004.
He met her parents on February 24, 2005 who disapproved their relationship and
made threats against him. He fears for his safety. He was 17 years old at that
time.
[12]
The
Board’s hearing lasted from November 2, 2006 to February 5, 2008, in four
distinct sittings, postponed mostly at the applicant’s requests, culminating in
the impugned decision of May 30, 2008.
The Board’s Decision
[13]
In
its 12-page decision, the Board summarized the evidence and over nine pages
elaborated the reasons supporting its finding that the applicants are not
“Convention refugees” and “persons in need of protection”.
[14]
The
Board found the principal applicant not to be credible nor a trustworthy
witness, going into great details from the evidence and her Personal Information
Form (PIF) to substantiate this finding.
[15]
The
Board found the psychologists’ reports to be of little probative value and
rejected them because they were based upon the principal applicant’s version of
the facts, a person found to be not credible.
[16]
The
Board also found that, because of her lack of credibility, Guideline 8:
Guideline on procedures with respect to vulnerable persons appearing before the
IRB and Guideline 4: Guideline for women refugee claimants fearing
gender-related persecution (the “Guidelines”), issued by the Immigration
and Refuge Board of Canada, were not applicable to her.
[17]
The
male claimant was also considered “not a straight forward witness”.
The Standard of Review
[18]
According
to the jurisprudence for the assessment of facts or mixed facts and law, in
such a case, the standard of review is reasonableness (Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190). The criterion to decide is: Does the decision fall within the
acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir,
at paragraph 47)? The reasonableness standard requires courts to give due
deference to decision-makers (Dunsmuir, at paragraph 49).
The Legislation
[19]
Articles
96 and 97 of the IRPA read as follows:
|
96.
A Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a)
is outside each of their countries of nationality and is unable or, by reason
of that fear, unwilling to avail themself of the protection of each of those
countries; or
(b)
not having a country of nationality, is outside the country of their former
habitual
residence
and is unable or, by reason of that fear, unwilling to return to that country.
97.
(1) A person in need of protection is a person in Canada whose removal to their country or
countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a)
to a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b)
to a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
(2)
A person in Canada who is a member of a class
of persons prescribed by the regulations as being in need of protection is
also a person in need of protection.
|
96. A qualité de réfugié au
sens de la Convention — le réfugié — la personne qui, craignant avec raison
d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de
son appartenance à un groupe social ou de ses opinions politiques :
a) soit se trouve hors de
tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a
des motifs sérieux de le croire, d’être soumise à la torture au sens de
l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
The Issues
[20]
The
applicants submitted four issues which I believe should be presented as
follows:
i)
Did
the Board err on the determination of the non-credibility of the applicants?
ii)
Did
the Board err in refusing to give weight to the medical, psychological, and psychiatric
reports about the principal applicant?
iii)
Can
an affidavit be set aside as self-serving?
iv)
Did
the Board err in ignoring the documentary evidence that members of the Sikh
community are still in danger in India from police terror?
v)
Did
the Board err in not considering the Guidelines for vulnerable persons and women
refugee claimants fearing gender-related persecution?
Preliminary Issue –
Tardiness
[21]
The
respondent alleges that the application should have been filed within 15 days
of the notification of the decision of the Board under subsection 72(2) of the
IRPA. If requested, a Judge may, for special reasons, allow an extension of
time to file the application.
[22]
In
the present case, the application was filed 12 days late alleging “other
emergencies” which were not detailed in the application for leave.
[23]
This
matter has become moot since Justice Mosley granted leave on October 24, 2008.
Analysis
Did the Board err on the
determination of the non-credibility of the principal applicant?
[24]
The
principal applicant submits that the Board erred in its general assessment of
her non-credibility without giving any weight to the medical, psychological and
psychiatric reports detailing her psychological problems.
[25]
The
respondent points out that the Board spent numerous pages of its decision
analyzing the alleged facts, contradictions and inconsistencies presented by
the principal applicant in her PIF and in her testimony which could not be
explained only by the medical reports.
[26]
This
is evident from a reading of the decision.
[27]
The
applicants argue that the Board did not consider the facts that were
established and particularly did not take into account, in assessing the
principal applicant’s credibility, her fragile medical state caused by the
traumatic events which occurred in India. They claim that the
Board ignored or refused to give weight to the medical, psychological and
psychiatric reports which explained the effects of traumatic events and
post-traumatic stress disorder (PTSD) on a person’s capacity to testify and to
recall events.
[28]
The
respondent replies that the Board considered the medical evidence but found
many omissions and contradictions that could not be explained by the PTSD.
[29]
The
Board highlighted the numerous, important contradictions in her testimony and
PIF. An analysis of these arguments reveals that the contradictions and inconsistencies
in the testimony are numerous and evident.
[30]
For
example, she said her husband was arrested by the police in India in 2002 and
gave bribes to be released but in his visa application to come to Canada
he wrote he had never been arrested in India.
[31]
In
another part of her testimony she says she went to various countries with her
husband, i.e. the United Kingdom in 2002 and 2004, the United States of
America in 1999 and 2003, Canada in 2004, Germany and Holland in 2004, yet
she or they did not claim refugee status.
[32]
Before
coming to Canada in 2005,
they stayed in the United Kingdom with a visa obtained for this purpose.
[33]
If
the general facts that were presented by the principal applicant were the sole
issue, I could not recognize any reviewable error since the courts cannot
interfere in the factual determination unless it does not fall within the range
of possible outcomes arising from the law and the facts (Dunsmuir, supra;
Mugesera v. Canada (M.C.I.), [2005] 2 S.C.R. 100, at paragraph 38; Singh
v. Minister of Citizenship and Immigration, 2007 FC 62, at paragraph 28).
[34]
The
Board did point out to the medical, psychological and psychiatric evidence
concerning the principal applicant but decided it could not explain the frailty
of the evidence.
[35]
The
Board also pointed out that the quality of the “expert” evidence was debatable
particularly regarding Mr. Woodbury, who is not a registered psychologist
and therefore should not be producing “psychological reports”. On this point,
the Board is correct (Kakonyi v. Minister of Public Safety and Emergency
Preparedness, 2008 FC 1410, at paragraphs 49 and 50). However, Dr. Sylvie
Laurion is a registered and qualified psychologist and Dr. Jaswant Guzder is a
psychiatrist practising at the Montreal Jewish General Hospital.
[36]
The
Board was also concerned with the undue emphasis this medical evidence put on
the opinion that this patient should be granted asylum in Canada. A matter
which has been assigned to immigration authorities and the courts. It is also
accepted in law that medical evidence based upon facts related by a person who
is found not to be credible, can be rejected by the Board (Wahid v. Minister
of Citizenship and Immigration, 2002 FCT 517, at paragraphs 9, 10 and 11; Dzey
v. Minister of Citizenship and Immigration, 2004 FC 167, at paragraph 42).
However, the Board failed to consider sufficiently the psychological reports
which show that a person’s ability to recall events and testify in a coherent
and logical manner can be severely impaired by PTSD.
[37]
The
Board in the present case did assess the principal applicant’s credibility
considering her medical condition, sufficiently taking into account its effect
on her testimony.
[38]
In
reviewing the evidence provided and reading the transcripts of the hearings, I
am not convinced that the Board properly considered the psychological and
medical reports that warned about cognitive dysfunctions that would impede the
principal applicant from giving a good and coherent testimony in front of the
Board. I believe this impacted on the decision, filled with negative conclusions
on credibility that are based, in contrast to the respondent’s argument, on
slight inaccuracies, that were, in my view, not properly founded.
[39]
This
constitutes a reviewable error according to the jurisprudence of our court (Lubana
v. Minister of Citizenship and Immigration, 2003 FCT 116 (paragraphs 16 and
17); Fidan v. Minister of Citizenship and Immigration, 2003 FC 1190; Atay
v. Minister of Citizenship and Immigration, 2008 FC 201).
[40]
In
a recent case concerning a couple, citizens from India, Deputy Judge Maurice
Lagacé dismissed an application for judicial review in which the psychological
state of the applicant was referred to explain inconsistencies and
contradictions in the evidence (Sharma et al. c. ministre de la Citoyenneté
et de l’Immigration, 2008 CF 908). The applicants had invoked sections 96
and 97 of the IRPA to attempt to have the negative Board’s decision overturned.
Judge Lagacé recognized the fact that the Board had determined the applicants
were vulnerable persons because of their psychological state. However, at
paragraph 29 of his decision, he dismissed the application because “[à] la
lumière de ce qui précède, la Cour conclut que la Commission a considéré l’état
psychologique des demandeurs et a mis en oeuvre les dispositions nécessaires
envisagées par les Directives no 8 ».
Women Refugee Claimants
Fearing Gender-related Persecution – Guideline 4
[41]
The
principal applicant claims the Board did not follow the gender guidelines which
exist to help the Board to assess credibility (Muradova v. Minister of
Citizenship and Immigration, 2003 FCT 274).
[42]
The
respondent submits the Board applied the gender-related guidelines and took her
fragile mental health into account in assessing her credibility. To accommodate
this, the hearing was divided in four sittings and the Board was attentive to
her condition. It also considered her a “vulnerable person”.
[43]
The
fact that the Board refused to grant the principal applicant’s motion to have the
hearing before a female member is not acceptable as a motive to overturn a
decision. Moreover, granting such a motion could raise an issue of gender
discrimination.
[44]
Concerning
the third issue: “the setting aside of an affidavit because self-serving”, the
short answer is that a Board, for valid reasons, could reach such a conclusion.
However, here, the Board did not set the affidavit aside it only gave it
limited value for the reasons given by the Board.
[45]
Concerning
the fourth issue, the applicants claim the Board ignored the danger faced by
Sikhs in India. The respondent submits
that the Board is presumed to have considered the documentary evidence and in
fact concluded that the applicants did not face personalized risk in India.
[46]
Recent
decisions of our court have decided that Sikhs do not face greater risks than
other Indian citizens. Every complainant must prove personalized risk (see Singh
v. Minister of Citizenship and Immigration, 2008 FC 408; Kaur et al. v.
Minister of Citizenship and Immigration, 2008 FC 1320; Luthra v.
Minister of Citizenship and Immigration, 2008 FC 1053; Singh v. Minister
of Citizenship and Immigration, 2008 FC 453). Therefore, the applicants’
argument on this point cannot be accepted.
[47]
The
principal applicant claims that the Board failed to consider the impact of the Canadian
Charter of Rights and Freedoms because of the inhuman treatment prohibited
by sections 7 and 12 of the Charter and article 3 of the 1984 United
Nations Convention against Torture and Other Forms of Inhuman or Degrading Treatment
or Punishment. The respondent argues this issue is premature before the
Board, a position supported by case-law (Tsakala v. Minister of Citizenship
and Immigration, 2003 FCT 411). This argument is therefore unfounded.
The male claimant
[48]
The
Board did not accept Marinder Singh Sokhi’s claim based on the fact that his
school certificate indicates he would have been in school on January 1, 2004
while the alleged incident concerning his relation with a Muslim girl, their
meeting with her disapproving parents, occurred on February 24, 2005. He
explained that after January 1, 2005, he attended school to prepare for exams.
The second reason the Board did not believe his version of the facts was that
he could not remember the name of a temple he had visited. This conclusion of
fact is erroneous since in his testimony, he gave the name of the “Temple Nanadavy” (at page 665
of the Tribunal Record); it was the district’s name he could not remember.
[49]
Finally,
the Board did not consider his young age (17) at the time.
[50]
I
find the Board’s finding of non credibility of the male claimant is not
supported by the facts; therefore, it is unreasonable.
Conclusion
[51]
The
application for judicial review will be allowed.
JUDGMENT
THIS COURT ORDERS THAT:
1. The application for
leave and for judicial review of the Refugee Protection Division of the
Immigration and Refugee Board (the Board) rendered on May 30, 2008, determining
that the applicants were not Convention refugees nor persons in need of
protection pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, is granted;
2. This matter is referred
back to the Board for re-determination before a differently constituted panel;
3. No question of general
importance is certified.
“Orville Frenette”
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