[1] These reasons follow the hearing on the 3rd of November, 2003 of an application for judicial review of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board made under subsection 70(1) of the Immigration Act (the "former Act"). In the decision under review, the IAD denied an appeal by the Applicant from a removal order made against her as a permanent resident. The ground for the Applicant's appeal was that, "...having regard to all the circumstances of the case, the [Applicant] should not be removed from Canada." The decision of the IAD that is under review is dated the 23rd of October, 2002.
BACKGROUND
[2] The Applicant is a citizen of India. She lived in India until she was landed in Canada in June of 1998, under the sponsorship of her husband, Bhag Warna. In her application for landing in Canada under the sponsorship of her husband, the Applicant indicated that she had not been married prior to her marriage to Bhag Warna. In fact, she had been twice previously married and divorced. It was on the basis of the Applicant's misrepresentation regarding the fact that she had been previously married that a removal order was made against her.
[3] As earlier indicated, the Applicant appealed against the removal order made against her to the IAD, under the authority of subsection 70(1) of the former Act. That subsection reads as follows:
70.(1) Appeals by Permanent Residents and Persons in Possession of Returning Resident Permits - Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
70.(1) Appel des résidents permanents et des titulaires de permis de retour -
Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants:
(a) question de droit, de fait ou mixte;
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.
(b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada.
[4] The Applicant did not allege on her appeal that there was any error of law or fact, or mixed law and fact, in the making of the removal order against her. Rather, she appealed solely on the basis on paragraph 70(1)(b), that is to say, on the ground that, having regard to all the circumstances of the case, she should not be removed from Canada.
[5] The "circumstances of the case" put forward before the IAD on behalf of the Applicant were that her family in India had turned against her, she had no support of any nature in India, that social and cultural conditions in India for a single divorced woman such as the Applicant would result in her being ostracized, her loss of face and likely despair and possible violence against her in India, and her reasonable establishment in Canada.
THE DECISION UNDER REVIEW
[6] The IAD provided a reasonable summary of its role on an appeal under paragraph 70(1)(b) of the former Act in circumstances similar to those of the Applicant. It wrote:
The factors relevant to the exercise of jurisdiction in appeals for [sic] a deportation order made from [sic] misrepresentation involve weighing the interests of the appellant in not being removed against the social interests and the protection of the statutory immigration scheme from abuse, which [sic] these interests generally involve a consideration of factors such as:
· the nature of the misrepresentation or non-compliance, whether it was intentional or inadvertent;
· the effect of misrepresentation or non-compliance, whether the appellant will otherwise have been inadmissible or ineligible for landing;
· how the misrepresentation or non-compliance came to the attention of immigration authority. Did the appellant disclose it voluntarily or if it was disclosed in a sponsorship undertaking?
· how quickly did the Canadian Immigration authorities act on the misrepresentation or non-compliance upon being apprised of it;
· the length of time spent in Canada and the degree to which the appellant is established here;
· the impact of [sic] the appellant's removal will have on the appellant and on others.
[7] The IAD found the appellant before it, here the Applicant, not to be a credible witness. It wrote: "She was vague in her answers and had a selective memory." The IAD further found that the Applicant's misrepresentation was central to her admission to Canada, that the Applicant did not admit that her misrepresentation was intentional and that she did not voluntarily disclose her misrepresentation.
[8] The IAD then turned to a consideration of the other side of the balance. It wrote:
The respondent argues that the fact that the appellant made a misrepresentation and she is not taking responsibility for it is a negative factor in this appeal. I agree with the Minister's counsel on the fact that misrepresentation is a negative factor in this matter. However, I should also assess the positive factors in this case in order to determine if they outweigh the negative ones. The appellant has been in Canada for three years and has worked constantly during that time. ... However, the appellant stated that she does not have many friends and does not participate in many organizations. She did not declare any substantial assets nor [sic] investments in Canada. I do not find these factors to weigh in the appellant's favour. [information regarding the Applicant's then current employment omitted]
[9] The IAD then went on to consider the expert testimony of a witness called before it on behalf of the Applicant. It wrote:
Furthermore, the appellant called Dr. Anuradha Bose to testify. On consent by the parties, Dr. Bose, an anthropologist, was qualified as an expert-witness to [sic] Indian culture. Dr. Bose testified to the circumstances that the appellant is likely to face if removed to India. She said that the appellant would face ostracism, loss of face and likely despair. She admitted that she had met the appellant and her conclusion are [sic] based on what the appellant had told her. Since the appellant's testimony and story is not credible, I do not believe, nor see how Dr. Bose was able to properly access [sic] the appellant, when I am of the view that she was not telling her the truth. At any rate, Dr. Bose mentioned that there are gangs in the appellant's neighbourhood in Calcutta and she might be assaulted if she were to return there. I do not believe this at all. It is pure speculation and is based on the testimony, which the appellant wants me to believe, that her ex-husband had hired people to harm her, which I do not find credible or believable. In any event, I recognize that the appellant will suffer some hardship if removed to India, but with the appellant's education and experience she will be able to establish herself there if not in Calcutta, in another part of India. The appellant is 36 years old and has only lived in Canada for a little over three years. It cannot be said that the appellant is a sheltered person without worldly experience, as evidence shows that she is independent and very capable of looking after herself. I believe that the appellant will suffer some dislocation should he [sic] be removed from Canada and it is a factor that I am taking into consideration. However, I cannot conclude, based on the evidence before me, that she will be persecuted nor that she will suffer discrimination which amount [sic] to persecution. [emphasis added]
[10] In the result, the IAD found "...that the positive factors of this case do not outweigh the negative ones", and in the result, it dismissed the Applicant's appeal that was before it. In doing so, it provided the assurance that it had reviewed all the evidence that was before it.
THE ISSUES
[11] While in his Memorandum of Law and Argument, counsel for the Applicant identified three (3) issues, the first being rejection of the credibility of all of the Applicant's testimony before the IAD, he focussed, and I am satisfied quite properly, on the following issues: first, whether the IAD erred by misconstruing and then choosing to ignore the expert testimony that was before it; and secondly, whether the IAD erred in its interpretation of subsection 70(1) of the former Act by applying the wrong standard to "all the circumstances of the case".
[12] Before the IAD, the expert witness, who had impressive credentials and experience relating to the impact of social and cultural conditions in India on divorced women living alone and without the support of their families, including research experience in the area of Calcutta in which the Applicant had lived, testified as to her interaction with the Applicant. That testimony was in the following terms in response to questioning by the presiding member of the IAD:
Q. What do you know about this case? I think that will be a more open question. And what she [the applicant] told you about this case?
A. She told me that she came to this country and that she had trouble with her husband. And I said what kind of trouble and she said emotional abuse. Then she said that she found herself a job and that she established herself. I asked her where she was born, and when she said Calcutta, I said where in Calcutta. And when she told me where she was born in Calcutta, I said oh I know that area because I did research down the street from where you were born. I know that area.
It's not the kind of area that I was born into but it's an area which is dominated by toughs. It's got a lot of a [sic] gangs in that area and these gangs are allied to political parties. But they can be bought for a sum, a very negligible sum according to Canadian standards and they might be hired to harass you. They might be hired to be with you. In fact, some of them worked with me, sort of acted as my protectors when I was doing my research. This is the way things operate in that part of town.
Q. Okay. And did she mention anything else about marriages?
A. Yes, she said that she had been married before. And I said, oh, and I let it drop because it was really none of my concern that she had been married before. But I did understand the stigma that went with it.
Q. Why it was not your concern [sic] if you are an expert in Indian behaviour, marriages and women and men relationship[sic] that type of thing? I think that was relevant, no?
A. It was relevant but I felt that this is a very delicate point and I did not want to cause a distressed woman more distress. She was evidently distressed when she came to see me.
[13] The expert witness concluded her testimony with the following answer in response to a request for a summary of what, in the Applicant's circumstances, she would encounter if she returned to India:
A very cold reception not only from her family but from society in the country at large. I think that it would be very difficult, and that's putting it very mildly, for her. Her family would be shamed. They would resent her. They would not want her around. If she went to another city, her circumstances [there] would be even more sorry because she would not know how to find work because she had no networks, no connections. Finding a place to live would be well nigh impossible because there is a great shortage of housing in India, as you know. It's also a question of whether she has the resources or would have access to the resources to find accommodation. Even if she had, who would rent to a single woman. There's a great deal of stigma. Women are expected to be either daughters, wives or sisters and mothers, and if the appellant does not fall into any one of these categories in an unknown city. [sic] And though India may be one country, it's several different countries. The culture is so different in each of the cities, that it would even be a question of cultural adaptation. I think that it would be very difficult indeed.
[14] With great respect, there is absolutely nothing in the testimony before the IAD of the expert witness that might have been influenced by her knowledge of the situation of the Applicant, as disclosed in the expert witness' description of her interaction with the Applicant. The testimony of the expert witness was of a generalized nature relating to social and cultural conditions for women similarly situated to the Applicant, in India. There is absolutely nothing in her testimony which was case-specific to the Applicant. The testimony of the expert witness in this matter is of an entirely different character from the expert testimony or reports of psychologists and psychiatrists that are often before the Immigration and Refugee Board and that relate to a specific psychological or psychiatric condition of the Applicant and the likelihood of its origin being in the specific experiences related to the psychologist or psychiatrist by the Applicant himself or herself .
[15] Further, the testimony of the expert witness in this matter is entirely consistent with documentary evidence that was before the Tribunal and that was not so much as mentioned by the IAD except by giving the assurance that it had taken into account all of the evidence before it.
[16] In Mylvaganam v. Canada (Minister of Citizenship and Immigration), I wrote at paragraph [10]:
The CRDD had before it substantial documentary evidence attesting to the difficulties that all young Tamil males, particularly those from the north, face in Sri Lanka. Even if it rejected outright, as it did, the applicant's own alleged experience of persecution, in its analysis in support of its decision in this matter, it does not appear to have rejected the applicant's identity as a young Tamil male from the north of Sri Lanka. Having accepted this identity, the CRDD then ignored the substantial evidence before it that a person such as this applicant might well be subjected to persecution if he were required to return to Sri Lanka and that therefore he might very well have had not only a subjective fear of persecution but also potentially a well-founded objective basis to that fear. In failing to so much as even consider this possibility, I am satisfied that the CRDD reached its decision in this matter without taking into account all of the evidence that was before it. In essence, it was so centered on its concern regarding the credibility of the applicant himself and the interrelationship of that concern with the psychiatric report that it had before it, that it would appear to have ignored all other evidence that was before it that could reasonably have been considered to be relevant to the applicant's claim.
[17] I am satisfied that, on the particular facts of this matter, with appropriate modifications, precisely the same could be said. It was not in question before the IAD that the Applicant is a thrice divorced or separated woman on her own. It would also appear not to have been in dispute that she lacked the support of her family in India. The IAD had before it "substantial evidence", not only in documentary form but in the form of expert testimony, based not on the personal history of the Applicant but on study and research, that a person such as this Applicant might very well be subjected to substantial hardship if she were removed to India. The IAD chose to effectively ignore that evidence. To paraphrase the above quotation, it "... reached its decision in this matter without taking into account all of the evidence that was before it", which evidence was particularly relevant to the circumstances of the Applicant that were not disbelieved. In so doing, I am satisfied that the IAD erred in a reviewable manner.
[18] I will turn briefly to the second issue cited above. In the long paragraph from its reasons that is quoted in paragraph [9] of these reasons and that deals with expert testimony before it, the IAD concluded in the following terms:
I cannot conclude, based on the evidence before me, that she will be persecuted nor that she will suffer discrimination which amount [sic] to persecution. [emphasis added]
[19] In the context before it, the issue simply was not persecution but rather whether the Applicant would be at risk of suffering substantial hardship if returned to India. Substantial hardship is a lesser threshold than persecution. I am satisfied that the IAD set the threshold for a determination, of a significant factor potentially weighing in the Applicant's favour, of the risk of substantial harm that the Applicant might incur if returned to India, too high, and in so doing distorted the balancing of positive and negative factors in the Applicant's circumstances that it was required to undertake. In so doing, I am once again satisfied that the IAD erred in a reviewable manner.
[20] In Chieu v. Canada (Minister of Citizenship), Justice Iacobucci, for the Court wrote at paragraph [84]:
Only the C.R.D.D. has the jurisdiction to determine that an individual is a Convention refugee. The I.A.D. cannot make such a finding, nor does it do so when it exercises its discretion to allow a permanent resident facing removal to remain in Canada. When exercising its discretionary jurisdiction, the I.A.D. does not directly apply the 1951 Geneva Convention, which protects individuals against persecution based on race, religion, nationality, membership in a particular social group, or political opinion. Instead, the I.A.D. considers a broader range of factors, many of which are closely related to the individual being removed, such as considerations relating to language, family, health, and children. Even when examining country conditions, the I.A.D. can consider factors, such as famine, that are not considered by the C.R.D.D. when determining if an individual is a Convention refugee. These foreign concerns are weighed against the relevant domestic considerations in making the final decision as to the proper exercise of the I.A.D.'s discretion. As a result of this broad-based balancing exercise, the protections offered to non-refugee permanent residents are of a different nature than those provided to Convention refugees.
[21] I am satisfied that the foregoing quotation is directly applicable on the facts of this matter.
CONCLUSION
[22] Based on the foregoing analysis, this application for judicial review will be allowed, the decision under review will be set aside, and the Applicant's appeal from the removal made against her will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[23] Neither counsel recommended certification of a question. No question will be certified.
________________________________
J.F.C.
Ottawa, Ontario
November 5, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5755-02
STYLE OF CAUSE: SEEMA WARNA v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 3, 2003
REASONS FOR Order : The Honourable Mr. Justice Gibson
DATED: November 5, 2003
APPEARANCES:
Mr. Michael Bossin FOR APPLICANT
Mr. Richard Casanova FOR RESPONDENT
SOLICITORS OF RECORD:
Community Legal Services
422 - 1 Nicholas Street FOR APPLICANT
Ottawa, Ontario
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
Tribunal Record, page 000223.
Tribunal Record, page 000226.
[2000] F.C.J. No. 1195 (QL), (F.C.T.D.).
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