Date: 20100122
Docket: IMM-3171-09
Citation: 2010 FC 59
Ottawa, Ontario, this 22nd
day of January 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
KAUR,
Kuldeep
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Me Guy Lebel, a member
of the Refugee Protection Division of the Immigration and Refugee Board (the
Board), dated June 3, 2009, finding that the applicant is neither a “Convention
refugee” nor a “person in need of protection” pursuant to sections 96 and 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2]
Madam
Kuldeep Kaur, the applicant, is a citizen of India. She is
twenty-eight years old. She came to Canada on June 22, 2007 on a
work permit as a dress designer. Her permit was obtained through an agent and
upon arriving in Canada she was sent to work at a bakery. She claimed
refugee status almost a year after arriving in Canada.
[3]
On
June 26, 2008 she was interviewed by Immigration Officer Line Ouellette in
Montréal with the assistance of an interpreter, Nami Haider, who translated
between English and Punjabi.
[4]
The
applicant bases her refugee claim on a fear of persecution by the local police
as a result of the activities of her brother, Jaswant Singh, and her fiancé,
Swarnjit Singh, who were active members in the All India Sikh Student
Federation.
[5]
The
Board’s decision was based solely on its determination that the applicant was not
credible. This conclusion is supported by certain contradictions and
implausibilities in the applicant’s evidence as identified by the Board.
[6]
The
first contradiction identified was in regard to the name of the organization
that the applicant’s brother and fiancé were members of. During her testimony the
applicant stated that her fiancé was a member of the “All India Sikh Student
Federation” but had provided the name of a different political group during her
interview with an Immigration Officer at her port of entry, namely, the “All
Sikh Student Foundation”. A further contradiction concerned the fate of her
brother. In her Personal Information Form (“PIF”), the applicant noted that her
brother was living in hiding since January 2006, however, at her interview with
the Immigration Officer she stated that after he was taken by police in January
2006 he was never heard from again. Both contradictions were put to the
applicant. In regard to her brother, the Board determined that she did not give
an explanation for the contradiction but rather, she simply was content to
state that her brother had disappeared after he was released from police
custody. This statement did not satisfy the Board that the contradiction was
immaterial.
[7]
On
her PIF, the applicant indicated that she was released from police custody the
day after her father died. His death occurred on April 4, 2006 so this would
put her release date as April 5, 2006. However, during her testimony she stated
that she had been released on April 3, 2006. When confronted, she reiterated
that she had not been detained for more than one day. The Board found that she
changed the dates. The medical report indicates she was hospitalized from April
3 to April 5, 2006. In the Board member’s opinion, the applicant had
adjusted her testimony to fit her medical evidence.
[8]
In
addition to the contradictions in the evidence, the Board determined that it
could not attach any weight to the medical report because it was unreliable.
Specifically, the medical report was dated April 5, 2006 but mentioned that
after April 5, 2006 the applicant was treated at her house and was advised to
return to the medical clinic for follow-up tests but that she failed to do so.
If she was to receive treatment after April 5 and the document was dated April
5, it was not possible for the medical clinic to have known whether she
attended at the clinic to obtain medical treatment. This implausibility was put
to the applicant and she was not able to provide an explanation to satisfy the
Board that the medical report was reliable.
[9]
In
total, the contradictions between her PIF and the notes taken at the
Immigration Examination undermined her credibility.
[10]
Finally,
the Board made a further negative finding against the credibility of the
applicant for her delay in making her refugee claim after arriving in Canada. The Board
noted that a delay may not be determinative of the applicant’s credibility on
its own. However, it is a fact that the Board may take into account in regard
to the actions of the refugee claimant as a whole. In this case, the applicant
waited close to a year before submitting her refugee claim. Her explanation for
the delay was that she was working for an employer who had promised to obtain
permanent residence documents for her but failed to produce them. She met
someone during her first year in Canada who told her she could
claim refugee status and this prompted her to ultimately file her claim. This
explanation did not satisfy the Board.
[11]
The
Board found that the applicant was attempting to obtain status in Canada because she
could not, or did not want to follow the normal immigration procedure. No
separate section 97 analysis was conducted, but the Board determined that there
was no serious possibility that the applicant would face cruel and unusual
punishment in India because her
story was fundamentally not credible.
[12]
The
applicant points out that the Board did not discuss the psychologist’s report
in its reasons. At paragraph 7 of the Board’s reasons there is a reference to
the notes of M. Woodbury, the psychologist who examined the applicant. The
report is produced in the applicant’s Record and is an opinion of the symptoms
of Post-Traumatic Stress Disorder which will manifest at the hearing for this
particular applicant.
[13]
The
respondent first argues that the Board cannot be faulted for not referring to
each and every document put before it. It is deemed to have considered all the
evidence. I note that the Board did refer to this evidence so this argument is
irrelevant.
[14]
The
respondent further argues that the report is an attempt to establish the
applicant’s credibility, that the Board was right to give it little weight, and
that the Court should not intervene to re-assess the weight given to this
evidence.
[15]
However,
I find Mr. Woodbury’s report was provided to assist the Board in assessing the
quality of the viva voce evidence. Mr. Woodbury’s qualifications are not
disputed by the Board. The latter has not commented with respect to the
applicant’s demeanour, frankness or other elements that could be used to
subjectively evaluate this applicant’s evidence. Rather, where the applicant
provided direct answers to support her claim she appears to have been
disbelieved but we are left wondering why. Mr. Woodbury clearly emphasized that
the applicant may not show signs of appropriate emotionality on account of her
symptoms of post-traumatic stress disorder. Counsel for the applicant suggests
that the failure to discuss the psychologist’s report was unreasonable in the
circumstances where a decision to reject an applicant’s claim for refugee
status was based in large part on the applicant’s failure to provide
explanations for the perceived contradiction in her earlier testimony to the
Immigration Officer and her PIF narrative. I agree.
[16]
In
my opinion, the Board has engaged in a microscopic analysis of the applicant’s
story. The Board has relentlessly focused on a weak contradiction in regard to
the date of her release from prison. The April 5, 2006 date of release was
initially contradicted by a medical report that was ultimately found to lack
any probative value. Thus, it should not have been used to contradict the
applicant in the first instance. The Board provides insufficient reasons to
demonstrate that the applicant’s delay is indicative of a lack of subjective
fear, given the applicant’s explanation for the delay. The remaining
contradiction in regard to the name of the political organization that the
applicant’s brother and fiancé belonged to is immaterial to her claim that she
was beaten and raped by members of her local police force and fears persecution
by them should she return. In my view, the contradictions identified are not
clearly so, and at the very least should not have been determinative of the
claim.
[17]
For
all the above reasons, I find the impugned decision to be unreasonable (see Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190, at paragraph 47). Consequently, the application for
judicial review is allowed and the matter is sent back for redetermination by a
differently constituted panel of the Board.
JUDGMENT
The application for judicial
review is allowed. The decision of Me Guy Lebel, a member of the Refugee
Protection Division of the Immigration and Refugee Board (the Board), dated June
3, 2009, is annulled and the matter is sent back for redetermination by a
differently constituted panel of the Board.
“Yvon
Pinard”
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