Date: 20051107
Docket: IMM-2302-05
Citation: 2005 FC 1491
Ottawa, Ontario, November 7th, 2005
Present: The Honourable Justice de Montigny
BETWEEN:
SUKHWINDER KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division ("RPD") dated March 17, 2005, wherein the RPD determined that Sukhwinder Kaur was neither a Convention Refugee nor a person in need of protection, and dismissed her claim.
BACKGROUND
[2] The Applicant, Ms. Sukhwinder Kaur, is a 44 year old citizen of India, and she is a member of the Sikh religion. She and her husband, who was president of a Sikh temple and a member of the Shiromani Akali Dal, lived on farmland in the Punjab. Ms. Kaur states that on June 15, 2002, three terrorists came to their home and, threatening to kill the family, demanded food, shelter, and the use of the farmhouse to store their weapons and ammunition. Ms. Kaur and her husband conceded, and the terrorists returned on June 18th to pick up the weapons and ammunitions. The following day, Ms. Kaur alleges that the police raided their house, arrested her husband, and detained him for three days, during which time he was tortured. He was subsequently released on condition that he help police arrest terrorists.
[3] Ms. Kaur states that her husband organized a conference on February 15, 2004, to oppose the granting of amnesty to police officers accused of killing Sikhs during the militant period in the Punjab, in which he spoke out against human rights violations and atrocities committed by police. Ms. Kaur states that the police raided their house the same evening, accused her husband of assisting terrorists and inciting people to act against the government and police, and arrested him, and that she has not seen him since that day.
[4] Ms. Kaur asserts that when she attempted to locate her husband, the police denied that they had him in custody. She went to the Kalera Mission Committee on March 5, 2004, who stated that they would assist her in filing a court case against the police based on her husband's disappearance. The next day, Ms. Kaur states that she was arrested, accused of defaming the police, beaten, harassed, and raped by officers. According to Ms. Kaur, the police released her with several conditions, including that she refrain from filing a court case against the police.
[5] Ms. Kaur applied for and was issued a visitor's visa, with which she entered Canada on June 21, 2004. She applied for refugee status on June 26, 2004, claiming a well-founded fear of persecution in India on the basis of two social groups, the family and women, because of imputed political opinions and because she is a Sikh from Punjab, and for the same reasons she claimed that she was a person in need of protection.
IMPUGNED DECISION
[6] The RPD Panel found that the documentary evidence before it, as a whole, depicted a great improvement in conditions in Punjab since 1993 with regard to Sikh persecution and police impunity. The Panel found that "there is no terrorist activity in the region" and that there are no reports of "terrorists roaming the countryside asking for food and shelter".
[7] The Panel also found that it was implausible that terrorists would have "left arms and ammunition at the house of unknown people who could have alerted the police...This makes no sense".
[8] The Panel did not believe that the claimant's husband was arrested because he had been criticizing the police, based on the fact that the documentary evidence does not mention anything about people being arrested for criticizing the police in Punjab, and based also on Ms. Kaur's statement that she did not know whether her husband's arrest had been mentioned in the newspapers.
[9] Based on its conclusions with regard to her husband, the Panel inferred that Ms. Kaur was not arrested. It also held that Ms. Kaur's evidence lacked credibility, and as such it came to the conclusion that the documentary evidence she provided with regard to her specific situation had no probative value and that they were either documents of convenience or false documents. It further held that the documentary evidence her counsel provided with regard to the general situation in the Punjab was not related to the events described by the claimant, and as such dismissed this evidence.
[10] Finally, the Panel found that even if it "chose to believe" Ms. Kaur's story, Ms. Kaur had the obligation of seeking protection from authorities in India, which would be possible, based on documentary evidence of available legal recourse and action by the Indian government to deal with persecution by police. The Panel held that although the documentary evidence showed that there can be police intimidation after a person files a complaint against the police, there was no evidence to show that such a person would be arrested or made to disappear after a complaint. The Panel held that Ms. Kaur did not provide clear and convincing evidence of the state's inability to protect her.
ISSUES
[11] This application raises essentially two questions:
a) Did the RPD err in its consideration of documentary evidence with regard to risk?
b) Did the RPD err in its findings with regard to state protection?
APPLICANT'S SUBMISSIONS
[12] The Applicant submits that the Panel erred in concluding that her documentary evidence on the general situation in the Punjab was unrelated to the Applicant's case. The Applicant argues that such evidence is indirectly related, similarly to the information on country conditions provided by the Refugee Protection Officer. She submits that the Panel cannot ignore substantial documentary evidence which is consistent with his claim and which is relevant on the plausibility of his claim. The Applicant argues that the Panel did not consider the whole of the documentary evidence, and that the Panel did not discharge its obligation to explain and analyze this evidence.
[13] The Applicant argues that conditions in the Punjab have not improved sufficiently to render Ms. Kaur's claim implausible. The Applicant refers to documentary evidence of active militant groups. The Applicant also submits that the Panel erred in identifying the issue of persecution as being related to Ms. Kaur's status as a Sikh. Counsel argues that her claim is based not on her religion, but on the fact that she and her husband were perceived as aiding terrorists.
[14] The Applicant also submits that the Panel's finding that police can no longer act with impunity is totally inconsistent with the evidence. Counsel cites various reports according to which torture and police violence continues in Punjab, that police have not been held responsible for acts they committed during the militancy period, and other evidence which indicates that deaths occur in police custody.
[15] The Applicant submits that the Panel erred in concluding that Ms. Kaur was not at risk, as she and her husband were participants in human rights activism condemning the police, which would make them subject to risk of police violence and killing. Finally, she submits that the Panel erred in drawing a negative inference from the lack of evidence of news reports about the arrest of Ms. Kaur's husband.
[16] As for the state protection, the Applicants is of the view that the Panel erred in basing its decision on the theoretical protection that would be available in India, rather than the effective protection, and that the documentary evidence is clear and convincing with regard to the lack of availability of protection.
[17] The Applicant argues that the Panel erred in holding that she should have requested the assistance of police; the Applicant contends that she was afraid of asking the police for assistance, and this fear was well founded. The Applicant submits that if the Panel erred in its application of the law with regard to state protection, its decision should be reviewed under the standard of correctness since it is a question of law.
RESPONDENT'S SUBMISSIONS
[18] The Respondent focused his submissions on the availability of state protection as he viewed this issue as decisive in the present case. As a result, counsel for the Respondent spent very little time on the actual situation in India and did not join issue with the Applicant as to whether: i) Sikhs are still persecuted in that country; ii) police can act with impunity; and iii) there are still terrorist activities in Punjab. Not only does the Respondent contend that the Applicant makes a selective reading of the documentary evidence, but he submits that the RPD's decision should stand even if this Court was of another view on those questions since its findings on state protection are reasonable.
[19] The Respondent argues that given the documentary evidence with respect to the avenues available for state protection, the Panel did not err in concluding that Ms. Kaur should have exhausted all recourse in India before claiming for refugee protection in Canada. In other words, it was contended that the Applicant had not provided clear and convincing evidence of the State's inability to protect her.
ANALYSIS
A) The credibility finding
[20] It is not the role of a reviewing court to reweigh evidence that was before a tribunal. As stated by Russell J. in Thavarathinam v. Canada (M.C.I.), [2003] F.C.J. No. 1866 (QL), 2003 FC 1469, at para. 10 "As long as there is evidence to support the Member's finding of credibility and no overriding error had occurred, the decision should not be disturbed". Having said this, the tribunal must identify the issue correctly, consider the totality of the evidence before it, and cannot ignore substantial documentary evidence, particularly that which has an impact on the plausibility of the Applicant's narrative (Gurjit Singh Malik v. Canada (M.C.I.), [2003] F.C.J. No. 645 (QL), 2003 FCT 453). As stated by my colleague Snider J. in Mundi v. Canada (M.C.I.), [2004] F.C.J. No. 1525 (QL), 2004 FC 1260 at para. 6: "The question that this Court must ask is whether the IAD overlooked relevant or material pieces of evidence in arriving at a finding of fact and then based its decision on this erroneous finding of fact".
[21] In the case at bar, the Commission came to the conclusion that the Applicant's husband was never arrested and that the Applicant herself, as a consequence, was not arrested either, on the basis that the documentary evidence did not support her story. This finding is problematic for a number of reasons.
[22] First of all, it is no doubt true that the overall situation in the Punjab has greatly improved in the recent years. But this is not to say that terrorist groups have been totally eradicated, as a close reading of the documentary evidence considered by the Commission shows. It is also worth noting that the Applicant claims that she and her husband were arrested not only because they were believed to have helped the terrorists, but more particularly because they had opposed the general amnesty for police officers accused of killing innocent Sikhs. In this regard, the documentary evidence is replete with examples of threats, harassment, and violent attacks by the police in attempts to intimidate and silence human rights advocates.
[23] Furthermore, the Panel summarily dismissed the documentary evidence submitted by the Applicant with regard to the situation in Punjab in terms of militancy and police violence, because this evidence did not relate to the case of the Applicant. In my opinion, this evidence, which consists mostly of newspaper articles, is indirectly relevant to the applicant's case in much the same way as other background information routinely considered by the Panel and used in this case to undermine the credibility of the Applicant's story. The Panel is clearly entitled to determine the probative value of such evidence, but to my mind it erred in dismissing it without even assessing it.
[24] But perhaps more importantly, I believe the Panel made an important error in dismissing the documentary evidence provided by Ms. Kaur to corroborate her story without even considering it, on the basis that she was not credible. This evidence consists of an affidavit from the Sarpanch of Ms. Kaur's village, a letter from the President of a religious committee, a letter from the Mission Committee which received Ms. Kaur's complaint about police behaviour, and a hospital report. These documents have a strong potential to affect the plausibility of Ms. Kaur's story, because they corroborate her narrative about the events that led to her refugee claim. Although the Panel did mention these documents, the Panel erred by summarily dismissing this evidence without substantively assessing it, given the potential weight and effect of this evidence. As Evans J. pointed out in Cepeda-Gutierrez v. Canada (M.C.I.), (1998), 157 F.T.R. 35, the burden of explanation increases with the relevance of the evidence in question:
"[...] the more important the evidence that is not mentioned specifically and analysed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence". [...] In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts." (para. 17)
[25] For all these reasons, I consider that the Commission erred in its assessment of the Applicant's credibility. As for the implausibility of terrorists dropping material at people's place, and of newspapers not reporting the Applicant's husband arrest, the findings of the Commission are based on pure speculation. Not only did the Applicant did not know whether the arrest was reported, which is perfectly legitimate, but there is no evidence as to what the newspapers find newsworthy in India. The same can be said with respect to the plausibility of militants seeking help from ordinary citizens. While it may be said that people could alert the police, it may be that people could also be impressed by death threats and refrain from doing so. As a result, this is far from convincing. This could explain why the Respondent did not vigorously defend these conclusions of the Commission and stated in his memorandum that "the decisive matter to be decided in the present case is the one of state protection".
B) The availability of state protection
[26] It is trite law that a democratic state like India is presumed to be able to protect its citizens. This was indeed spelled out most clearly by the Supreme Court of Canada in Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 where Justice La Forest stated at para 50:
The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state's inability to protect its nationals as well as the reasonable nature of the claimant's refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state's inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state [page725] protection arrangement or the claimant's testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant..
[27] In the case at bar, the Panel applied this presumption to the facts, holding that Ms. Kaur did not provide the clear and convincing evidence required to rebut the presumption of state protection in the case of a democratic nation. Relying on the fact that India is a democratic country, that the government has established legal mechanisms to counter police abuse, that lawyers and human rights groups are active, that there is legal aid, and that there are orders from the Supreme Court to impose regular checks on police, the Panel concluded that "India has taken important steps to ensure that protection was available to people being persecuted by the police and thus is well able to protect its citizens".
[28] In my view, this finding derives from a truncated reading of Ward, supra. The protection offered by the State must not be only theoretical, but also practical and real and effective. After having quoted Professor Hathaway, according to whom " A refugee may establish a well-founded fear of persecution when the official authorities are not persecuting him if they refuse or are unable to offer him adequate protection from his persecutors ... ", Justice La Forest adds:
Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state.
[29] The Applicant, through her counsel, submitted to the Panel prima facie credible evidence tending to demonstrate the State's inability to adequately protect its citizens against police abuses. Yet, nowhere does the Panel discuss that dimension of the problem, except to say that "nowhere in all the documentary evidence is it mentioned that people who do so [filing a complaint] are arrested, killed or disappear following such a complaint". This is flatly contradicted not only by the evidence submitted by counsel for the Applicant, but in the very same report from Amnesty International relied upon by the Commission to come to its conclusion. That report explicitly states that "human rights defenders continued to face accusations of "anti-national" activities, harassment by state agents, political groups and private individuals, including threats, preventive arrest and detention, and violence" (SPR Record, p. 121).
[30] That evidence, tending to show that human rights advocates and those who complain against the police are still very much subjected to threats, intimidation and violence despite the best efforts of the government, warranted more than a dismissive sentence in the decision. This was extremely relevant to assess whether it was objectively reasonable for the Applicant not to complain to the police in the circumstances.
[31] Two more things need be said before concluding these reasons. First of all, I think the Board erred in considering that the Applicant could have approached human rights organizations to seek redress. As my colleague Lemieux J. stated in Balogh v. Canada (M.C.I.), (2002), 22 Imm. L.R. (3d) 93, at para. 44, "[...] Canadian jurisprudence has repeatedly stated that there is no further burden on an Applicant to seek assistance from human rights organizations".
[32] Finally, I think it was perfectly legitimate for the Applicant not to complain to the police in the circumstances, given that the police itself were the aggressors and the perpetrators of the acts of violence. As my colleague Tremblay-Lamer stated in Chaves v. Canada (M.C.I.), [2005] F.C.J. 232 (QL), 2005 FC 193 at para. 15, "the very fact that the agents of the state are the alleged perpetrators of persecution undercuts the apparent democratic nature of the state's institutions, and correspondingly, the burden of proof".
[33] For all of these reasons, I have come to the conclusion that this application for judicial review should be granted. The matter is therefore referred back for redetermination by a newly constituted panel. No question of general importance shall be certified by the Court.
"Yves de Montigny"
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