Date: 20070423
Docket: IMM-5050-06
Citation: 2007 FC 430
Ottawa, Ontario, April 23,
2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
GURDEV
KAUR SADEORA
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Gurdev Kaur Sadeora challenging an
unfavourable decision of the Refugee Protection Division of the Immigration and
Refugee Board (Board) rendered on August 14, 2006. Ms. Sadeora’s claim to
protection was brought under sections 96 and 97 of the Immigration Refugee
and Protection Act (IRPA), S.C. 2001, c.27 but the Board rejected it on the
basis of implausibility and because of the availability of an internal flight alternative
(IFA).
Background
[2]
Ms.
Sadeora’s claim to protection from persecution was based upon an alleged
history of horrendous abuse meted out to her and the members of her family
between 1994 and 2003. She claimed that in June, 1994 her husband, Avtar
Singh, had witnessed the murder of a police officer in their home village of Ferozepur. Not long
after this event, Mr. Singh was abducted, assaulted and held for three (3)
days. According to Ms. Sadeora, when he returned home, he was badly injured.
A few months later, her husband was again abducted, held for ten (10) days and
then returned home in a badly injured condition. This incident was shortly
followed by her own abduction during which she claimed to have been tied up and
beaten to the point of unconsciousness. When she was released and returned
home, she learned that her husband had died on March 10, 1995 from his earlier
injuries.
[3]
On
April 14, 1995, Ms. Sadeora’s eldest son, Harjinder Singh, was beaten by
persons who wanted to know what he knew about the 1994 murder of the police
officer. This was followed by two further alleged abductions of Harjinder
Singh in 1996. On those occasions, Mr. Singh was supposedly beaten, tortured
and again questioned about the 1994 murder. These events led both of Ms.
Sadeora’s sons to flee to Thailand where they remained for
five (5) years.
[4]
Not
long after Harjinder Singh’s return to India, he was
allegedly kidnapped and murdered. Finally, Ms. Sadeora claimed to have been
abducted on April 19, 2003. The description of this event contained within her
Personal Information Form (PIF) was as follows:
On April 19, 2004 [later corrected to
2003], some people grabbed me from rickshaw and they hanged me oppositely and
did bad behavior. I was in so bad condition that I can not explain in words.
They told me that they killed my husband & son and it is my turn to die. I
begged in front of them for my life that I am already died, (because of my
husband and son’s death), please do not kill me.
[Quoted from original text]
[5]
On
December 14, 2003, Ms. Sadeora came to Canada as a visitor
upon the invitation of her daughter. She later claimed refugee protection on
the strength of the above-noted history of persecution.
The Board Decision
[6]
In
its decision, the Board correctly observed that Ms. Sadeora had been unable to
identify the persons who were responsible for the events she had described.
Nevertheless, the Board relied upon several witness affidavits which had been
tendered to corroborate Ms. Sadeora’s story and concluded that her fear of
persecution “is at the hands of Sikh militants or members of Sikh terrorist
groups in India”. Having
drawn an inference that the terrorists referred to in the witness affidavits
were Sikh terrorists, the Board went on to make the following findings:
(a)
the
documentary evidence “does not corroborate [Ms. Sadeora’s] allegations that she
would still be at risk of being seriously harmed or killed at the hands
of Sikh militants or terrorist groups in India” because those groups were
essentially defeated or inactive by the mid 1990’s;
(b)
there
is “no serious possibility that [Ms. Sadeora] would be subjected to persecution
if she were to relocate to Delhi”;
(c)
it
was “implausible that the same Sikh terrorists who allegedly murdered her
husband in 1995 also murdered her son Harjinder Singh in June 2002”;
(d)
it
was “implausible that Sikh militants in Punjab would have attacked and
threatened to kill [Ms. Sadeora] in April, 2003”;
(e)
“Had
such incidents involving Sikh militants or terrorists been occurring in Punjab in 2002 and
2003, I find it implausible that such incidents would not be reported in the
substantive documentary evidence.”;
(f)
there
is “no serious possibility that [Ms. Sadeora] would be subjected to persecution
at the hands of Sikh militants or terrorist groups if she were to relocate to Delhi” which was a
viable IFA; and
(g)
it
was implausible that Ms. Sadeora would be threatened by Sikh militants in Delhi.
Issues
[7]
(a) What
is the standard of review for the issues raised on this application?
(b) Did
the Board commit any reviewable errors in its decision?
Analysis
[8]
It
is not disputed that the appropriate standard of review for the Board’s
evidence-based plausibility conclusions is patent unreasonableness. On this
point, I would adopt the statement of Justice Michael Kelen in Chen v. Canada (Minister
of Citizenship and Immigration), [2002] F.C.J. No. 1611, 2002 FCT 1194 at
para. 5 where he held:
5 Credibility findings of the Board
are entitled to the highest degree of curial deference, and the Court will only
set aside credibility decisions, or grant leave for applications for judicial
review of credibility findings, in accordance with the criteria outlined above.
The Court should not substitute its opinion for that of the Board with respect
to credibility or plausibility except in the clearest of cases. For this
reason, applicants seeking to set aside credibility findings have a very heavy
onus to discharge both at the stage of seeking leave, and at the hearing if
leave is granted.
[9]
Notwithstanding
the significant deference that is owed to the Board’s credibility and
plausibility findings, this is a case where the Board’s implausibility findings
do not stand up to scrutiny.
[10]
It
is noteworthy that nowhere in the Board’s decision is there an explicit finding
that Ms. Sadeora
lacked credibility. There are no findings of testimonial deficiencies or
inconsistencies and there are no clear findings that the incidents described by
Ms. Sadeora did not occur. What the Board seems to have based its decision
upon are plausibility conclusions which, for the most part, lack clarity.
[11]
Having
drawn an inference that the alleged persecutors of Ms. Sadeora and her family
were Sikh terrorists, the Board then concluded from the documentary evidence
that the alleged incidents in 2002 and 2003 were implausible because Sikh
terrorism had largely disappeared by then. One is left to wonder whether the
Board found that those events did not occur at all or only that they did not
occur at the hands of Sikh terrorists. Even if one was prepared to accept that
the Board had found that the events of 2002 and 2003 did not occur at all, the
Board made absolutely no findings of implausibility or otherwise with respect
to the alleged events of 1994, 1995 and 1996. It is simply impossible to tell
from the decision whether the Board accepted that Ms. Sadeora, her husband and
their son had been repeatedly abducted and assaulted and, in the case of her
husband, murdered, between August, 1994 and November, 1996.
[12]
The
Board’s finding that it was not plausible that the persons who were allegedly
involved in the 1995 murder of Ms. Sadeora’s husband were also responsible for
her son’s murder in 2002, fails to answer the fundamental question as to
whether those events occurred as she had described. The same problems arise
with respect to the Board’s finding that it was not plausible that Ms. Sadeora
was attacked by Sikh militants in April, 2003. The Board does not exclude the
possibility that the attacks occurred but only that Sikh terrorists were not
the perpetrators. The question remains: if not Sikh terrorists, then by whom?
[13]
The
identification of Sikh terrorists as the likely perpetrators of the alleged
crimes was based, after all, on an inference drawn by the Board. Ms. Sadeora
did not identify the assailants as Sikh terrorists nor did any of the several
affiants or witnesses. If it was implausible that Sikh terrorists were
responsible, the Board had a duty to at least consider other possibilities
including the possibility that the perpetrators were common criminals or, as
was suggested by one witness, that they were associated in some way with the
public authorities. In other words, if the perpetrators were not Sikh
terrorists, then perhaps the Board’s inference was invalid and not Ms.
Sadeora’s testimony.
[14]
There
can be a danger in basing a refugee decision solely on an inference tied
to plausibility findings and, as the Federal Court of Appeal noted in Aguebor
v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 732, 160 N.R. 315
at para. 3, “it may be easier” to have such a finding reviewed than where an
adverse credibility ruling is based on testimonial inconsistencies. The Board’s
plausibility findings can be useful in assessing a claimant’s credibility but
they should not be used as a substitute for a thorough credibility assessment
and a clear determination about whether the essential allegations of
persecution made by a claimant were accepted or rejected by the Board. In this
case, Ms. Sadeora was entitled to know in clear and unmistakable terms whether
and to what extent the Board believed her evidence: see Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 238, 130 N.R. 236 (F.C.A.). The Board
decision here fails in that fundamental respect.
[15]
The
other fundamental problem with several of the Board’s plausibility conclusions
is that they describe situations or events that are not inherently implausible.
This Court has defined implausibility as something that is “outside the realm
of what could be reasonably expected”: see Valtchev v. Canada (Minister
of Citizenship and Immigration), [2001] F.C.J. No. 1131, 2001 FCT 776.
[16]
While
there was a solid evidentiary foundation for the Board’s finding that Sikh
terrorism in Punjab had markedly declined after the mid 1990’s, the decision,
nevertheless, acknowledged that that phenomenon had not entirely disappeared by
2003. The Board specifically drew upon country condition documents which
described on-going Sikh terrorism - albeit at a significantly reduced level.
Violence in Punjab was described as “becoming less common” but that “incidents
do occasionally occur such as explosions caused by bombs on buses and trains”.
Such incidents were also noted to occur in the rest of India and were not
confined exclusively to Punjab. The Board went on to quote from one
publication which stated that “occasional acts of terror are still executed
from time to time, primarily by surviving elements of groups based in Pakistan”. The same
report noted that “the occasional terrorist activities that still occur in the
State, have, by and large, been restricted to concealed bombs left behind in
soft targets – predominantly public transport”. Against this record, it was
patently unreasonably for the Board to say that the events described by Ms.
Sadeora in 2002 and 2003 were outside the realm of what could be reasonably
expected. As counsel for the Applicant correctly observed, a reduction in
generalized violence is not a complete answer to the question of whether a
refugee claimant faces an individualized risk and it is no basis for concluding
that such events were implausible. Evidence of a reduction in terrorist
violence in Punjab does not
exclude from the realm of reasonable possibilities that such events could still
occur on an occasional or isolated basis.
[17]
The
Respondent argued that the Board’s IFA determination could, by itself, support
the denial of Ms. Sadeora’s claim and there is certainly authority to that
effect: see Singh v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 886, 2006 FC 709 at para. 18.
[18]
This
case is different, however, because the Board’s IFA analysis was inextricably
linked to its assessment of Ms. Sadeora’s risk profile. With the Board’s
manifestly deficient analysis of the allegations of persecution and, in
particular, its failure to determine whether some or all of the events Ms.
Sadeora described had occurred and, if so, by whom, the Board could not carry
out a meaningful IFA analysis. Indeed, the Board itself recognized the link
between the two issues by basing its IFA analysis in part upon its earlier
findings of implausibility with respect to the ongoing levels of Sikh terrorism
in Punjab.
[19]
I
am not satisfied that the Board correctly appreciated the concept of
implausibility which, in turn, undermines its finding that it was implausible
that Ms. Sadeora would be targeted in Delhi if she was to take up residence
there.
[20]
Based
upon the foregoing, I will allow this application and remit this matter for
redetermination on the merits by a differently constituted panel of the Board.
[21]
Counsel
for the Applicant has proposed a number of questions for certification relating
to the Board’s treatment of the Gender Guidelines. Because of my determination
of this proceeding on other grounds, those proposed questions do not arise.
Counsel for the Respondent did not identify a question of general importance
for certification. In the result, no question will be certified in this case
and no issue of general importance arises on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the
matter to be remitted for redetermination on the merits by a differently
constituted panel of the Board.
"R. L. Barnes"
Email this Content