Date:
20130225
Docket:
IMM-8284-12
Citation:
2013 FC 189
Vancouver, British Columbia,
February 25, 2013
PRESENT: The
Honourable Mr. Justice Simon Noël
BETWEEN:
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Applicant
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and
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JASWANT KAUR
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by the
Refugee Protection Division [RPD], dated July 19, 2012, in which the Respondent was found
to be a Convention refugee.
I. Facts
[2]
The
Respondent is a citizen of India. In 1998, her family arranged for her marriage
to an Indian man residing in the United States. She moved to the United States that year and stayed there illegally until she arrived in Canada on or about January
26, 2011. One month after her arrival in the United States, her
mother-in-law and father-in-law joined the couple and they all lived in New Jersey. She had two children with her husband.
[3]
The
Respondent’s husband left her in 2004 to return to India and died in 2009. The
Respondent alleged that she has no siblings and that her parents are deceased.
[4]
The
Respondent entered Canada alone by walking across a treed area where no one
could see her. She then took a taxi to a Sikh temple, where she met her
maternal nephew, with whom she resides now. During her testimony, the
Respondent stated that her nephew’s family is in India.
[5]
She
claimed refugee protection on May 25, 2011, four months after arriving in Canada.
II. Decision
under Review
[6]
The
RPD found the Respondent generally credible. It considered the fact that she is
a widow, that she has no family or property in India and that she is
particularly vulnerable as she has no work experience outside the house and a
grade 10 education.
[7]
The
RPD considered the evidence regarding the treatment of women in India who are at risk of domestic abuse. Although measures have been put in place to
protect women from domestic abuse, such measures remain inaccessible to
illiterate women or those from rural areas.
[8]
The
RPD then considered the availability of an internal flight alternative [IFA]
for the Respondent and concluded that the second part of the test is not met as
it would be unreasonable for her to relocate to another place in India.
[9]
The
RPD determined that, according to documentary evidence, single women with
limited education face discrimination that amounts to persecution. It is
hard for widows to find accommodation on their own as landlords are often
unwilling to rent to single women. Considering that the Respondent has no
support in India and no work experience outside the family home, she would face
persecution if she returned to India.
[10]
The
RPD made no adverse finding that the Respondent did not attempt to seek
protection from the United States authorities nor did it deal with the four-month
delay to seek protection in Canada.
[11]
The
RPD therefore concluded that the Respondent is a Convention refugee.
III. Applicant’s
Submissions
[12]
The
Applicant submits that the RPD’s determination that the Respondent’s fear is
well-founded is unreasonable. In finding that the Respondent is at risk of
persecution, the RPD did not tie the evidence considered to her personal
circumstances, did not identify the agent of persecution, did not link her
risk of harm to a Convention ground and did not verify whether state protection
is available to her. The RPD erroneously found that the Respondent is at risk
of domestic abuse as she never claimed that she fears this kind of abuse.
Moreover, the RPD found that state protection is unavailable to women who face
domestic abuse in rural areas, even though the Respondent’s claim was not based
on this type of risk.
[13]
The
Applicant submits that the RPD failed to determine whether the Respondent’s
fear of persecution is objectively well-founded. Indeed, the RPD did not
determine whether the Respondent faces a risk of persecution in her home
village before conducting its IFA analysis.
[14]
The
RPD committed an error in its analysis of the Respondent’s IFA. The RPD made a general
reference to documentary evidence on India and did not explain why the
Respondent would not be able to safely relocate. The RPD then analyzed the
hardship that she would face upon relocation namely because she has limited
literacy skills, a fact that is unsupported by the evidence.
[15]
The
RPD also failed to consider the support available to her in India. The evidence is to the effect that she is supported by her ex-husband’s family.
Indeed, her mother-in-law and father-in-law came to Canada to assist her in
making her refugee claim and her children are now living with her sister-in-law
in Seattle. Therefore, her in-laws would be able to assist her should she
return to India.
[16]
Moreover,
according to the Applicant, the Respondent’s assertion that she has no family
in India is inconsistent with the evidence that she is living with her maternal
nephew in Canada and that all of his family is in India. The RPD did not want
the Respondent’s counsel to explain why she is a maternal aunt although
evidence of family support is relevant to her claim.
[17]
The
RPD failed to consider the most recent evidence contained in the national
documentation package, which includes evidence on the protection offered by the
government to women living alone and working in India. The Respondent is Sikh
and there is evidence that Sikh do not face any discrimination outside the Punjab state, in terms of education, access to education and employment. The RPD does not
consider the fact that the evidence speaks of the measures taken by the
government to address this problem. The Applicant submits that the RPD erred in
disregarding a report on whether women who head their own households can obtain
housing and employment in main centers. This report states that single women
may face difficulty in obtaining housing without family support but that the
situation is improving as such women have greater employment opportunities in
some industries.
[18]
Finally,
the Applicant argues that the RPD committed an error by not drawing a negative
inference from the Respondent’s failure to seek protection in the United States in the two-year period after her husband died. Indeed, the evidence
demonstrates that the Respondent would be supported by her in-laws in the United States. The Respondent’s explanation for her four-month delay in claiming protection
in Canada should have been considered unreasonable. She explained that without
help from her father-in-law, she was not able to make a claim but she was
however able to cross the border independently. No mention is made of her delay
in seeking protection in Canada.
IV. Respondent’s
Submissions
[19]
The
Respondent submits that the RPD’s finding that she is a Convention refugee is
reasonable and consistent with her testimony, the documentary evidence and the
lack of state protection in India. The Respondent was found to be credible when
she explained that she lacks work experience outside the house, that she has no
family or property in India and found her to be vulnerable. If returned to
India, the Respondent would face persecution as a single woman, as
demonstrated by the evidence. The RPD connected the Respondent’s risk of harm
to a Convention ground, which is a membership in a particular social group. The
agents of persecution are the police and Indian society.
[20]
As
for the Applicant’s argument that the RPD failed to consider important
evidence, the Respondent submits that the RPD is presumed to have considered
all of the evidence submitted and is not required to cite every document
in its written reasons.
[21]
Moreover,
the Respondent argues that “adequacy of reasons” is not a stand-alone basis for
quashing a decision.
[22]
As
for the analysis of whether or not the Respondent has an IFA available to her,
the Respondent submits that the RPD reasonably found that it is not objectively
reasonable for her to relocate in India. The RPD’s finding is consistent
with the evidence that relocation for single women is difficult in India.
[23]
Finally,
contrary to what is alleged by the Applicant, the RPD did consider the evidence
that the Respondent has lived in the United States for 13 years and
decided not to make an adverse finding that she did not make an attempt to seek
help from the United States authorities. As for her delay in claiming refugee
protection in Canada, the Respondent submits that this is not a decisive factor
in determining if she is a Convention refugee.
V. Issue
[24]
Did
the RPD err in granting refugee protection to the Applicant?
VI. Standard
of Review
[25]
The
applicable standard is reasonableness as the issue raises a mixed question of
fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51, [2008] 1 S.C.R. 190).
VII. Analysis
[26]
The
RPD’s decision is unreasonable for the following reasons.
[27]
First,
the RPD committed errors in the first step of its reasoning by determining that
the Applicant would be “in a particularly vulnerable position” because of
potential domestic abuse that she could face in India. Such a
determination is unreasonable because the RPD needs to assess whether a person
is at risk of persecution, and not whether that person is in a vulnerable
position. Moreover, the Applicant never claimed she had a fear of domestic
abuse in either her testimony or in her Personal Information Form. The
RPD’s conclusion was drawn with no regard to the Respondent’s personal
circumstances. Indeed, it relied on documentary evidence on domestic abuse in
India but there is no connection between that evidence and the Respondent herself (Kaba v Canada (Minister of Citizenship and Immigration),
2007 FC 647 at para 1, 160 ACWS (3d) 524; Ahmad v Canada (Minister of Citizenship and Immigration),
2004 FC 808 at para 22, 134 ACWS (3d) 493).
[28]
Second,
the RPD made a mistake when it concluded that the Respondent does not have
family in India and would therefore face persecution as a single woman. Indeed,
the RPD deemed it unnecessary to hear the Respondent on why she is a
maternal aunt. However, the Respondent, during her testimony, explained that
she is a maternal aunt and that all of her nephew’s family is in India. Such evidence contradicts the RPD’s finding that the Applicant would be vulnerable
because the evidence demonstrates that she does have relatives in India. Evidence that goes to the heart of a refugee claim should be given
consideration (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ
598 (FCA)). In the present case, the Respondent spontaneously mentioned
that her nephew’s family is in India and the RPD refused to have her give more
details about her statement.
[29]
Third,
the RPD does not make any finding as to the four-month delay to seek protection
in Canada. The Federal Court decision in Singh v Canada (Minister of Citizenship
and Immigration), 2007 FC 62 at para 24, 159 ACWS (3d)
568 is relevant to the present circumstances. It establishes that “a delay
indicates a lack of a subjective fear of persecution, since there is a
presumption to the effect that a person having a well-founded fear of
persecution will claim refugee protection at the first opportunity.” The RPD did
not consider the delay or the Respondent’s explanation for the delay in seeking
protection. Delay in seeking protection is a relevant factor which should have
been given proper consideration by the RPD. Moreover, the Respondent lived in
the United States for two years after her husband died and did not claim
refugee protection although her claim is based on her fear of returning to India as a single woman. The RPD’s decision not to make an adverse finding from not seeking
help from the United States authorities is unreasonable as it was made
without considering and analyzing the fact that she could have claimed refugee
protection in the United States. The RPD came to an unreasonable conclusion
that is not based on the factual elements. The RPD appears to have
selectively relied on evidence supporting its conclusion that the Respondent
needs to be granted refugee protection without considering the relevant facts
of the case.
[30]
Finally,
the RPD committed an error in failing to rely on the most recent National
Documentation Package [NDP] dated May 30, 2011, and by considering an earlier
NDP. The RPD should have analyzed such documentary evidence. This evidence
speaks to protection and services offered by the Indian government to women
living alone and working. By ignoring the most recent evidence, the RPD failed
to consider and to comment on the evidence that contradicts its findings.
Again, in its analysis, the RPD seems to have preferred evidence that supports
its conclusion that the Respondent should be granted refugee protection
although it is required to consider all of the relevant evidence (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), (1998) 157 FTR 35 at para 17, 1998 CarswellNat 1981). The May 20, 2011 documentation was relevant evidence for the purposes
of the determinations made.
VIII. Conclusion
[31]
For all these reasons, the RPD decision is found to be
unreasonable and the matter needs to be sent back for reconsideration.
[32]
The parties were invited to submit a question for
certification but they declined to do so.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is allowed and the
matter is remitted back to a differently constituted panel for reconsideration.
No question is certified.
“Simon Noël”
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