Date: 20060907
Docket: IMM-6335-05
Citation: 2006
FC 1066
Ottawa, Ontario, the
7th day of September 2006
Present:
the Honourable Mr. Justice de Montigny
BETWEEN:
MANJIT KAUR
HARPREET KAUR
ARASHDEEP SINGH
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
application for judicial review at bar relates to a decision by the Refugee
Protection Division (RPD) on September 28, 2005 by which the applicants were
considered not to be refugees or persons in need of protection within the
meaning of sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA).
[2]
The
principal applicant Manjit Kaur is 26 years old and originally from India. She claimed
refugee status for her political opinions and membership in a particular social
group, that of women in India. She also said she feared for her life if
she had to return to her country and considered she was threatened with
torture. She further represented her minor children Harpreet Kaur and Arashdeep
Singh, who claimed refugee status on the same ground as their mother, although
they are U.S. citizens.
[3]
The
applicant’s brother was apparently a member of the student association All
India Sikh Student Federation (AISSF): he was allegedly arrested, detained and
tortured at least three times for his activities in that association. When he
was released on the last occasion in January 1999 he allegedly left home and
was never found: the authorities suspected that he had joined other militants.
[4]
On
January
14, 1999
the applicant and her mother attended a meeting organized by the AISSF. A
friend of the applicant’s brother recognized her and asked her to address the
participants and explain the fate the authorities meted out to her and her
family. She did this and described the problems she had had with the police.
[5]
The
following day the police allegedly came to the applicant’s residence. She was
charged with having spoken the evening before and taken to the police station,
and her mother was allegedly beaten. At the police station the police officer
responsible for the investigation allegedly raped her. Thanks to a bribe
provided by her family she was released the following day, after being warned
never to speak of what had happened at the police station and undertaking to
work with the police in finding her brother.
[6]
Following
these events, the applicant left her country for the U.S., where she
arrived on March 27, 1999. The uncle she was living with made efforts to find
her a husband, and she accordingly married shortly after arriving in the U.S. Two children
were born of this union and are now claiming refugee status in Canada with their
mother, although they are U.S. citizens.
[7]
A
year after her arrival in the U.S. the applicant and her husband made a
refugee status application. The husband’s application was rejected.
Consequently, he had to leave U.S. territory. He then came to Canada, where he
has also claimed refugee status. The applicant was called for an interview but
did not go and preferred to follow her husband to Canada, where she
claimed refugee status on March 21, 2005.
[8]
After
illegally crossing the border without reporting to the Immigration authorities,
she was arrested and charged with illegal entry into Canada. The day
after her arrest the Immigration officer went to the police station where she
was being held to meet with her. At that time she made a number of statements
which are not consistent with the evidence later submitted. An RCMP officer was
present at this meeting, but she was not read her rights under the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11 (the
Canadian Charter). When the lawyer retained by the applicant’s husband went to
the police station, the applicant was released on the same conditions as her
husband.
[9]
After
discovering on her arrival in Canada that her husband was living with another
woman, the applicant is now separated from him. Her two children live with her
in Montréal.
[10]
In
its decision the RPD concluded that the applicant’s testimony was not credible
on account of the many contradictions and improbabilities noted in the
testimony. The panel also found that the applicant’s testimony contradicted what
she had said at her point of entry interview. Finally, the RPD concluded
that the applicant had exhibited conduct inconsistent with a real fear of
returning to her country of origin: not only had she renewed her work permit in
the U.S., she had
failed to attend the hearing at which her refugee status claim was to be heard.
For all these reasons, the panel concluded that the applicant’s actions were
not consistent with those of a person seeking refuge outside his or her country
through fear of persecution or personal harm.
[11]
In
his written and oral submissions counsel for the applicant raised several
arguments in this Court in support of her application for judicial review. To
begin with, he maintained that in its analysis of the refugee status
application the RPD had failed to take into account Guideline 4 of the
Canada Immigration and Refugee Board, Women Refugee Claimants Fearing
Gender-Related Persecution (the Chairperson’s Guidelines), November 13,
1996 (the Guidelines). Secondly, he maintained that the RPD could not
rely on the notes made by the Immigration officer at the point of entry because
the applicant was then being detained and had made her statements without being
able to consult a lawyer and without knowing her rights. He further alleged
that the RPD erred in not joining the claim by the applicant and her two
children to that of her husband. Finally, counsel for the applicant argued that
the panel improperly assessed the facts submitted by his client and wrongfully
drew negative conclusions as to her credibility. I will now consider each of
these allegations.
[12]
As
to the Guidelines first of all, it is true that the RPD did not
expressly refer to these in its reasons. However, that is not fatal as such,
since the board member’s silence in this regard does not support a conclusion
that the Guidelines were not considered in his analysis of the case. In the
same way, a mere ritual mention that the Guidelines had been considered would
not suffice to establish that the panel had complied with them. What matters
is that the reasons for decision demonstrate that the decision-maker was aware
of the particular situation of women when the basis of their claim was related
to their vulnerability. Although the Guidelines are not binding on the RPD,
they must still be considered in appropriate cases (Fouchong v. Canada (Secretary
of State)
(1994), 88 F.T.R. 37, at paras. 10-11 (F.C.), [1994] F.C.J. No.1727 (QL); Khon
v. Canada (Minister of
Citizenship and Immigration), 2004 FC 143, (2004), 36 Imm. L.R. (3d)
55, at para. 18 (F.C.), [2004] F.C.J. No.173 (QL)).
[13]
In
the case at bar, I am not persuaded that the member demonstrated the degree of
understanding and sensitivity required in his analysis of the allegations of
rape submitted by the applicant. He first considered that the medical
certificate entered in evidence was not sufficiently explicit to corroborate
what she said. Nonetheless, the certificate mentioned that the applicant was
hospitalized on the day that she was released by the police and described her condition
and the treatment received as follows:
She was suffering from pain in
her body, scratches bruises, contusions and other injury marks over her body.
She was in depression. She was thoroughly examined and treated with
intravenous, fluids, ointments, antibiotics, anti-inflammatory and
anti[-]depression medications.
She was discharged after
satisfactory reports of blood and urine. She was further treated, at home till 26 January 1999. She was advised to come
after one week for medical check up.
She was further advised come
after three weeks for Pregnancy test and after three months for H.I.V. tests.
Nevertheless [s]he did not come.
[14]
On
reading such a report no great exercise of imagination is necessary to conclude
that the applicant was raped. The fact that the physician was not more explicit
can certainly be explained by cultural considerations. The fact that the
Sarpanch’s affidavit refers expressly to the applicant’s rape, whereas the
latter said she only told her mother and physician about it, in view of the
loss of reputation which might result for herself and her family, is
explicable. The Sarpanch was apparently very close to the applicant’s family
and in fact accompanied her father to the police station to obtain her release.
It is thus not impossible that he was made aware of the situation, as the
applicant maintained in her affidavit. Further, the applicant indicated in her
testimony that the entire family ultimately learned of what had happened,
although the applicant exercised great discretion in this regard. These are
entirely reasonable explanations in a situation like that of India, where rape
is undoubtedly regarded with greater modesty and reticence than in a country
like Canada.
Accordingly, it seems to the Court that the member did not demonstrate all the
sensitivity and understanding required in his analysis of this aspect of the
claim.
[15]
Does
this mean that this error is fatal? I do not think so. In view of the other
reasons given by the RPD for concluding that the applicant was not credible and
that her conduct was inconsistent with a genuine fear of persecution, which had
nothing to do with the fact that she was a woman, the application of the
Guidelines would not in any way change the outcome of the applicant’s claim.
This Court has often repeated that the RPD’s decision
will not be reversed in such circumstances if the evidence was otherwise
sufficient to support its conclusion. As Judith A. Snider J. wrote in a
judgment of this Court, Sy v. Canada (Minister of Citizenship and
Immigration), 2005 FC 379, (2005), 271
F.T.R. 242 (F.C.), [2005] F.C.J. No.462 (QL), at paragraphs 17 and 19:
Nevertheless, a failure by the Board to consider the Guidelines in an
appropriate case will not necessarily result in a successful judicial review
application.
. . . . .
The Board’s conclusion that the Applicant’s story of a forced
marriage lacked credibility was not made solely on the grounds that she was
unable to provide details about her intended husband. The Board also referred
to the documentary evidence that showed that the Applicant’s consent would be
required for a legal marriage, that most forced marriages occur at a younger
age, and that forced marriages are not as common in educated families. The Board
also noted that, between 1995 and 2000, the Applicant had no problems with her
uncle who took over the management of her family affairs following the death of
her father. Therefore, although the Board erred in not taking into account the
Gender Guidelines, there was sufficient evidence to support the Board’s
conclusion and the error is not sufficient to set aside the Board’s decision.
See also: Diallo v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1301, (2004), 136
A.C.W.S. (3d) 727 (F.C.), [2004] F.C.J. No.1567 (QL); Siket v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1666, (2005), 144
A.C.W.S. (3d) 710 (F.C.), [2005] F.C.J. No. 2068 (QL); Begum v. Canada
(Minister of Citizenship and Immigration), 2001 FCTD 59, (2001), 20 Imm.
L.R. (3d) 258 (F.C.), [2001] F.C.J. No. 205 (QL).
[16]
Additionally,
it will not be necessary for me to deal at length with the alleged infringement
of the applicant’s constitutional rights in her examination by the Immigration
officer at the police station. It may well be that she was detained within the
meaning of section 10 of the Canadian Charter and that the situation in
which she found herself could be distinguished from a routine point of entry
examination, in which it was decided that a person did not have the right to be
informed of the right to retain the services of counsel: see Dehghani v.
Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053,
[1993] S.C.J. No. 38 (QL). However, I do not have to rule on this point in the
application for judicial review at bar.
[17]
It
is in fact well settled that a point which was not raised before an
administrative tribunal cannot be considered in the judicial review of that
decision. The reason for this is, first and foremost, because it is of the very
essence of judicial review to rule on the questions put before the
administrative authority and only on the reasons given in support of the
decision rendered. As Louis Marceau J. pointed out in Poirier v.
Canada (Minister of
Veterans Affairs), [1989] 3 F.C. 233 at 247 (F.C.A.), [1989]
F.C.J. No. 240 (QL):
The powers of the Court, in
the exercise of the role conferred on it by section 28 [of the Federal
Courts Act, R.S.C. 1985, c. F-7] of overseeing and controlling the legality
of administrative decisions, are solely those of setting aside a decision which
appears to it not to have been made in accordance with legal requirements and
of referring the matter back to the tribunal for redetermination with
appropriate directions. The Court cannot pronounce itself on a decision which
did not face the administrative authority, nor order the authority to answer
one Way or another a question which is not of its concern.
[18]
The
same rules obviously apply to this Court when it is exercising the powers
conferred on it by section 18.1 of the Federal Courts Act (Chen
v. Canada (Minister of Citizenship and Immigration) (2000), 197
F.T.R. 307 (F.C.), [2000] F.C.J. No. 1954 (QL)). They are all the more
applicable when the question raised is of a constitutional nature. In such a
case, the Court must be careful not to intervene if the alleged infringement of
a fundamental right was not discussed before the administrative body: such a
practice is not only required by the very nature of judicial review, but is
also due to the complete absence of any factual basis for determining such an
important question. For example, we do not know whether the applicant was still
in detention at the time of her meeting with the Immigration officer: this
point, though crucial in applying section 10 of the Canadian Charter, was
not gone into by the parties before the RPD. As the Supreme Court of Canada
noted in MacKay v. Manitoba, [1989] 2 R.C.S. 357, at 361,
[1989] S.C.J. No. 88 (QL):
Charter
decisions should not and must not be made in a factual vacuum. To attempt to do
so would trivialize the Charter and inevitably result in ill-considered
opinions. The presentation of facts is not, as stated by the respondent, a mere
technicality; rather, it is essential to a proper consideration of Charter
issues.
See also Suchit v.
Canada (Minister of Citizenship and
Immigration),
2005 FC 800, (2005), 139 A.C.W.S. (3d) 1055 (F.C.), [2005] F.C.J. No. 1004
(QL); Chen v. Canada (Minister of Citizenship and
Immigration),
supra.
[19]
The
applicant’s argument that the RPD erred by not joining her refugee status
claim and that of her children to her husband’s claim appears to the Court to
be without basis. First, I note that this request was never made by the
applicant or her counsel at the hearing before the RPD. It is true that the
record disclosed the existence of the husband. At the same time, the record
also indicated that the applicant had been separated from her husband since her
arrival in Canada and did not
know where he was. What is more, we know nothing of his refugee status
application, and everything indicates that facts which could justify a fear of
persecution or fear for one’s life or physical safety have nothing to do with
the situation in which the applicant was, as she did not meet him until after leaving
India. In these
circumstances, joinder of the claims would not necessarily be required and it
was for the applicant to make the request.
[20]
As
regards the children, who it will be recalled are U.S. citizens,
the panel was right to conclude that they could not claim refugee status if
there was no proof that they feared persecution in the U.S. Even if
their application was joined to that of their father, they would not have been
granted refugee status on the basis of facts which the latter could put forward
since they did not have the same nationality that he did. It is well settled
that no one can acquire refugee status or the status of a person in need of
protection against a country of which he or she does not have the nationality,
unless the person is stateless, which of course is not the case here.
[21]
In
any event, the Federal Court of Appeal and this Court have several times
pointed out that the joinder of proceedings does not affect the principle that
each claim must be considered individually and on its own merits: see Retnem
v. Canada (Minister of Citizenship and Immigration), (1991), 13
Imm. L.R. (2d) 317 (F.C.A.), [1991] F.C.J. No. 428 (QL); Zewedu v.
Canada (Minister of
Citizenship and Immigration), (2000), 193 F.T.R. 152 (F.C.), [2000]
F.C.J. No. 1369 (QL); Khorasani v. Canada (Minister of
Citizenship and Immigration), 2002 FTC 936, (2002), 116 A.C.W.S.
(3d) 724 (F.C.), [2002] F.C.J. No. 1219 (QL). This is undoubtedly one
of the reasons this Court has always refused to intervene when no injustice has
been created by a tribunal’s decision to join or separate proceedings (Asfaw
v. Canada
(Minister of Citizenship and Immigration) (2000), 98 A.C.W.S. (3d)
880 (F.C.), [2000] F.C.J. No. 1157 (QL); Zewedu v. Canada
(Minister of Citizenship and Immigration), supra; Amin v.
Canada (Minister of Citizenship and Immigration), 2001 FCT 448, [2001]
F.C.J. No. 716 (QL); Khorasani v. Canada (Minister of
Citizenship and Immigration), supra; Lu v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1517, (2004), 134
A.C.W.S. (3d) 863 (F.C.), [2004] F.C.J. No. 1825 (QL); Hayek v. Canada
(Minister of Citizenship and Immigration), 2005 FC 848, (2005), 140
A.C.W.S. (3d) 345 (F.C.), [2005] F.C.J. No. 1055 (QL)). In the case at bar, no
evidence was submitted to support a conclusion that the applicant and her
children had suffered any detriment from their refugee status claim not been
considered jointly with that of her husband.
[22]
There
remains the RPD’s conclusion
that the applicant was not credible, a conclusion which it based on her actions
and on certain contradictions between her point of entry statements and her
Personal Information Form. In order to be successful the applicant had to
persuade the Court that the panel made a patently unreasonable decision, that
is a decision which cannot be based on any reasoning and finds no support in
the evidence: Mugesera v. Canada (Minister of Citizenship and
Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, [2005] S.C.J. No. 39 (QL); Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160
N.R. 315 (F.C.A.), [1993] F.C.J. No. 732 (QL); Suresh v. Canada
(Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1
S.C.R. 3, [2002] S.C.J. No. 3 (QL). This is a heavy burden which the applicant
did not discharge.
[23]
Although
I am prepared to admit that some of the contradictions noted by the RPD between
the applicant’s testimony and her Personal Information Form (PIF) are perhaps
more apparent than real, I do not feel that this is a sufficient basis for
quashing its decision. Thus, I am not persuaded that there is any inconsistency
between stating in her PIF that the leaders of the AISSF movement spoke at the
meeting of January
14, 1999
and the applicant’s statement at the hearing before the RPD that she was the
only one who addressed the crowd. The applicant’s explanation that she was the
only participant who spoke of the problems she and her family had with the
police may seem reasonable. Similarly, I would be inclined to think that the RPD erred in
considering that the applicant was not credible when she said at the hearing
she was unconscious for twenty minutes after being beaten by the police during
her detention on January 15, 1999. The applicant was free to give an
approximate time during which she thought she was unconscious; as to the fact
that this information is not found in her PIF, I note there may simply have
been a translation problem, in that the applicant mentioned she had been beaten
“until exhausted”. Finally, I do not have to repeat what I have already said
regarding the medical certificate.
[24]
However,
it is important to note that the RPD’s decision has to be
judged as a whole, and in the case at bar other reasons led it to conclude that
the applicant was not credible. First, the RPD relied on the applicant’s point
of entry statements in which she said at least twice that she was not afraid of
returning to India and that she had come to Canada to join her husband. The
applicant’s explanations that she feared being detained at the border and sent
back to her country and that the events related took place several years
earlier were not regarded by the member as plausible as the applicant had
experience of the immigration process in the U.S., her entry to Canada was
organized with the help of a smuggler and her husband had already entered
Canada before her without being stopped at the border or sent back to his
country. Finally, we should not lose sight of the fact that the RPD’s decision
was also based on the conduct of the applicant, who said she left her country
in 1999 because she feared for her life, but waited until 2001 before making a
refugee status claim in the U.S., a claim which she did not then pursue.
[25]
In
view of all this evidence and the applicant’s general attitude at the hearing,
the RPD could arrive at the conclusion that the applicant was not credible and
that her actions were not consistent with those of a person seeking refuge
through fear of persecution or personal harm. This does not mean that I would
necessarily have come to the same conclusion, but that is not the question I
have to answer. As John Sopinka J. wrote for the majority of the Supreme Court
of Canada in United Brotherhood of Carpenters and Joiners of America, Local
579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, [1993] F.C.J.
No. 56 (QL), at 340:
A patently unreasonable error is more
easily defined by what it is not than by what it is. This Court has said
that a finding or decision of a tribunal is not patently unreasonable if
there is any evidence capable of supporting the decision even though the
reviewing court may not have reached the same conclusion (Lester (W.W.)
(1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry, Local 740 [1990] 3 S.C.R. 644, at pp. 687-88),
or, in the context of a collective agreement, so long as the words of that
agreement have not been given an interpretation which those words cannot
reasonably bear (Bradburn, supra, per Laskin C.J., at p.
849). What these statements mean, in my view, is that the court will
defer even if the interpretation given by the tribunal to the collective
agreement is not the “right” interpretation in the court’s view nor even the
“best” of two possible interpretations, so long as it is an interpretation
reasonably attributable to the words of the agreement.
[26]
For
all these reasons, I come to the conclusion that the applicant’s application
for judicial review must be dismissed. Counsel for the applicant submitted two
questions for certification, but I feel that in view of the facts of the case
at bar these questions do not arise and the answer that might be given to them
would not be conclusive for the outcome of the case.
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