Date:
20121003
Docket:
IMM-2640-12
Citation:
2012 FC 1165
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Ottawa,
Ontario, October 3, 2012
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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SARBJEET KAUR
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Applicant
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision dated January 31,
2012, in which the Refugee Protection Division of the Immigration and Refugee
Board [RPD] determined that the applicant (a citizen of the Republic of India)
is neither a Convention refugee nor a person in need of protection under
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA].
[2]
Apart
from the analysis of the state protection objectively available to the
applicant in her country, the RPD provided an analysis of the applicant’s
personal situation and of the credibility of her account. The applicant is challenging
the legality of the second part of the RPD’s decision, inter alia,
because of its erroneous references to evidence that was not in her record.
[3]
After
carefully reviewing the record and considering counsel’s written and oral
representations as well as the jurisprudence submitted, the Court cannot allow
the decision to stand. For the reasons set out below, the application for
judicial review will be allowed.
Facts
[4]
The
applicant alleges that, while visiting her country for a few weeks in April and
May 2007, she was arrested on two occasions by the police in her country, who
suspected that she had ties to members of the All India Sikh Students
Federation. She was subsequently released on payment of a bribe and on
condition that she not leave her village in Punjab without police permission.
The applicant lived and worked in Malta at that time.
[5]
The
applicant’s problems began on April 20, 2007. On that day, the applicant, her
girlfriend and her girlfriend’s brother (who was a long‑standing member
of the All India Sikh Students Federation) were travelling by bus to their
village. Police officers stopped and searched their bus and arrested her
friend’s brother. They then asked the driver to leave with the other
passengers.
[6]
The
applicant says that later her friend’s father went to various police stations
to find out what had happened to his son. The police denied arresting him. The
applicant therefore decided to go with her friend’s father to a police station where she
recognized one of the officers who had forced her friend’s brother to get off
the bus.
The officer denied everything and, as a result, they were unable to obtain any
information about her friend’s brother that day.
[7]
The
next day, April 25, 2007, the police went to the applicant’s home to
arrest her and took her to the police station along with her friend and her
friend’s father. She claims that she was questioned and beaten, then released
after her father paid a bribe of 100,000 rupees. As for the friend and her
father, the applicant states that, after they were released, they left their
village without a word to anyone about what had happened. The applicant found
out later from the sarpanch of the village (chief of the village council) that
her friend had been raped by a police officer when she was held at the police
station.
[8]
On
April 30, 2007, the police went to the applicant’s home again to arrest
her and brought her to the police station. This time, the police took her
photograph, fingerprinted her and forced her to sign some blank documents. The
applicant was also questioned by the police about her friend’s family. They hit
her and insulted her and accused her of helping her friend’s family and of
having information about them. The applicant was released that day upon payment
of 75,000 rupees and on condition that she not leave the village.
[9]
The
applicant says that her family was very shaken by these events and advised her
to leave the country as soon as possible. She returned to work in Malta on
May 2, 2007.
[10]
In
her Personal Information Form [PIF], the applicant stated that while she was in
Malta she learned that the police had gone to her parents’ home and had taken
her father to the police station. They questioned him about the applicant and
the fact that she had breached her condition of not leaving the village. This
time, the police confiscated her father’s agenda book in which they found her
telephone number and address.
[11]
The
applicant says that she was working as a maid for a family in Malta at that
time. One day, her employer received a call from an unknown individual inquiring
about the applicant. She received some calls from the Indian Embassy and was
questioned about her address in Malta. She was told that this information was
required to update the records of Indian citizens working in Malta.
[12]
The
applicant told her story to her employers who applied for a visa for her and
advised her to come to Canada with them in order to save her life.
[13]
The
applicant arrived in Canada with a visa that was valid until March 27,
2008. She claimed refugee status on May 30, 2008.
RPD’s reasons
[14]
At
the outset, the RPD stated that state protection was the determinative issue in
this case, although the credibility of the applicant’s allegations was also
analyzed. However, the member acknowledged that, since he had not confronted
the applicant about the concerns he had regarding the credibility of her
testimony, he would not limit his analysis to that issue alone.
[15]
In
a rather comprehensive decision, a large part of which sets out the relevant
jurisprudential principles, the RPD determined that state protection was available
to the applicant and that she had not tried to obtain such protection either by
informing government authorities or non‑governmental organizations [NGOs] or by seeking legal redress against the
police.
[16]
After
reviewing the objective documentary evidence on country conditions (in
particular, the National Documentation Package [NDP] on India, May 30,
2011, tab 2.6: IND103452.E. April 29,
2010. Treatment of political activists and members of opposition parties in
Punjab (2008‑2010) and tab 2.1: United States. April 8,
2011. Department of State. “India”. Country
Reports on Human Rights Practices for 2010), the RPD found that the
governments, both in the state of Punjab and at the national level, are
democratic and that despite the corruption, significant delays, potential
injustices and incidents of torture by the police (NDP on India, tab
7.1: Human Rights Watch. August 2009. “Human Rights Violations by Police”.
Broken System: Dysfunction, Abuse, and Impunity in the Indian Police, Chapter
III), the Indian judicial system is still functional.
[17]
The
RPD stated that even police forces have systems of control and codes of conduct
that they are to respect (NDP on India, tab 10.3: Commonwealth
Human Rights Initiative (CHRI). 2008. Police Organisation in India
at pages 13‑15 and 22‑28) and that certain NGOs help people having
problems obtaining state protection. The RPD noted that there is a human rights
commission in Punjab, set up in 1997, which is mandated to investigate
complaints of human rights violations in the area (NDP on India, tab
2.5: United Kingdom. April 17, 2008. Home Office. Operational Guidance Note: India,
at page 5, para 3.6.7.).
[18]
In
the same way, the RPD rejected the applicant’s argument that she was not
required to seek the protection of the authorities in her country given that her
agent of persecution was the police itself. The RPD stated that, based on the
current state of the jurisprudence, “[t]he real question to be asked is whether
it is reasonable to require that the applicant seek protection from his state,
in any way, even in cases in which the police is the persecuting agent” (Singh
v Canada (Minister of Citizenship and Immigration), 2006 FC 136, [2006] FCJ
153 at para 21‑22).
[19]
At
the beginning of its analysis of state protection in India, the RPD said it was
aware of the importance of assessing all the evidence presented before it,
including the narrative, which constitutes the primary source for understanding
the applicant’s personal situation. On this point, the member correctly noted that,
according to this Court’s established jurisprudence, in the absence of a true
analysis of a claimant’s subjective fear of persecution, a finding that the
claimant could avail him- or herself of state protection will be unreasonable
(see, in particular, Flores v Canada (Minister of Citizenship and Immigration),
2010 FC 503 at para 32, [2010] FCJ 607 [Flores]; Jimenez v Canada (Minister
of Citizenship and Immigration), 2010 FC 727 at para 17, [2010] FCJ 879; Pikulin
v Canada (Minister of Citizenship and Immigration), 2010 FC 979 at para 13,
[2010] FCJ 1244 and Carrillo v Canada (Minister of Citizenship and
Immigration), 2008 FCA 94 at para 14‑15, [2008] FCJ 399).
[20]
In
its analysis of the applicant’s subjective fear, the RPD noted that she had not
submitted any evidence that “might have established, on one hand, that in India,
all police officers work in a coordinated manner, without questioning the
legality of their colleagues’ actions, or, on the other hand, that simply
because she approached a judicial authority—for example, to report what she was
put through by certain police officers—this would have immediately placed her
in a situation in which she would have been subjected to a risk to her life, a
danger of torture or a risk of even greater persecution”
(paragraph 31 of the reasons). Furthermore, the applicant could have obtained
assistance from NGOs specializing in human rights or alerted the Indian
authorities, particularly by seeking legal redress against the police (paragraph
34 of the reasons).
[21]
As
such, the RPD stated that it had conducted a thorough analysis of the
documentary evidence submitted in the file. In doing so, the RPD made an
obvious error on the face of the record when it indicated that the applicant
had the support of a lawyer who took legal steps for her in India and of a sarpanch
who signed an affidavit corroborating her testimony about the illegal acts
committed by police officers. In a footnote, the RPD referred to two letters
dated January 2012, one signed by an Indian lawyer and the other by a Delhi citizen.
[22]
These
exhibits were not filed by the parties in this case and are probably connected
to another RPD case.
[23]
It
is interesting to repeat the RPD’s findings on this point:
[G]iven
all of the documentary evidence, in which both the positive and negative
aspects of the situation are analyzed; and given the personal situation of the
claimant, who obtained a letter from a lawyer and an affidavit from her
village’s sarpanch that both corroborate her main allegations, I find that the
claimant’s testimony and the arguments made by her lawyer during her
submissions do not constitute convincing evidence that, in her personal case,
rebuts the presumption that the Indian authorities are capable of protecting
its citizens.
[24]
With
respect to the credibility issue, the RPD’s analysis was very simple. It simply
noted that the applicant was nervous and anxious during the hearing; that at
the beginning of her testimony she was mistaken about the dates of the events;
and that she recited what she appeared to have learned by heart instead of
giving a direct answer to the member’s questions. The RPD stated that its
finding that the applicant was not credible did not result from a few errors in
her testimony but rather from the fact that the testimony as a whole was not
spontaneous and seemed to have been previously memorized.
[25]
The
RPD also faulted the applicant for not including certain facts in her PIF, i.e.
the fact that the police are still looking for her and the fact that they have
gone to her parents’ home and harassed and beaten her father two or three times
since she left, and the fact that the police now accuse her of being involved
with extremists outside the country.
[26]
Since
these facts were not in her PIF, the RPD determined that the applicant’s
credibility was undermined on the question of whether her father had been
beaten by police officers since she left the country. However, in the same
paragraph, the RPD said that these allegations were corroborated by an
affidavit signed by the sarpanch of the applicant’s village. The pertinent
excerpt of this affidavit reads as follows:
9. . . . I leanrt that in Malta, [the
applicant] was followed by phone. Callers claiming themselves calling from
India and Indian Embassy Malta. [The applicant]’s employer helped to send her
to Canada. She left Malta and reached Canada and over there, she had filed her
asylum case to save her life.
10. That time to time, police come to harass her family at the village and
alleging that [the applicant] working with militants from foreign land. Police
also told her family that now police are trying to made a contact with Indian
Embassy in Canada to get her back to India.
11. That I being the sarpanch and other panchayat members helped to release
[the applicant] and her father whenever they were arrested by the police.
[27]
For
all these reasons, the applicant’s refugee claim was rejected.
Issues
[28]
The
applicant’s arguments focus on the following three issues:
(1) Did the RPD err in
finding that the applicant could have availed herself of state protection in
India?
a. by considering
evidence that clearly came from another file; and
b. by ignoring evidence
in the record that corroborated the applicant’s allegations
(2) Did the RPD make
unreasonable findings about the applicant’s credibility?
(3) Did the RPD breach its
duty of procedural fairness by failing to analyze, under subsection 97(1)
of the IRPA, the risks that the applicant would personally face if she were to
return to India?
Analysis
The RPD erred in its analysis of
the availability of state protection in the applicant’s personal case
[29]
The
applicant submits that the fact that the RPD believed that she had the
assistance of a lawyer who had acted for her in India and who had written a
letter to her corroborating her allegations was determinative in its analysis
of whether state protection was available to the applicant. I agree with the
applicant on this point.
[30]
This
Court’s jurisprudence on the requirement that an analysis of subjective fear
must precede an analysis of objective fear is unequivocal. In Flores, above,
at para 32, Justice Mainville wrote:
The analysis of the objective
fear should ordinarily be carried out after the analysis of the
subjective fear, since the particular context that is unique to each case is
often conclusive for the objective analysis. A refugee claimant who has no
subjective fear of persecution cannot ordinarily allege absence of state
protection. As well, the analysis of the availability of state protection will
vary considerably depending on the subjective fear in issue. A subjective fear
of a low-level marijuana dealer might lead to a radically different conclusion
in the analysis of objective fear as compared to a subjective fear of being
pursued by a large and powerful drug cartel with virtually unlimited resources.
In one case, state protection might be available, but it might not be in the
other case, and it is therefore important for the panel to make reasoned
findings concerning the subjective fear of persecution before proceeding
with the analysis of the objective fear of persecution, which includes
the availability of state protection.
[Emphasis added]
[31]
Accordingly,
it is clear that the analysis is not limited to the availability of
state protection but must reflect the possibility of obtaining such
protection in the circumstances of each case. The RPD’s finding that the
applicant had not rebutted by convincing evidence the presumption that the
Indian authorities are capable of protecting their citizens in her personal
case was, at least in part, based on evidence that was not in the record.
[32]
The
respondent submits that this is not a fatal error in the determination of state
protection. He referred me to extensive jurisprudence that teaches us that insignificant
errors such as an improper reference to an affidavit, non‑determinative
to the outcome of the decision (Gill v Canada (Minister of Citizenship and Immigration),
2004 FC 1498 at para 22-24, [2004] FCJ 1828), a “typographical error” (Gonzalez
v Canada (Minister of Citizenship and Immigration), 2011 FC 1504 at para
20, [2011] FCJ 1827) or “clumsiness of language or expression” (Osaru v
Canada (Minister of Citizenship and Immigration), 2005 FC 1656 at para 6,
[2005] FCJ 2109) should not, in and of themselves, taint a decision that is
otherwise well‑founded. However, we are not talking about those types of
errors in this case. The RPD, in part, based a determinative finding of fact
(state protection) on documentary evidence that did not belong to this case.
[33]
The
respondent correctly submits that the applicant was required to demonstrate
that she had offered her country the real possibility of intervening before
being able to legitimately infer that it was not capable of providing her with
the necessary protection or that it was reasonable to not avail herself of this
protection. However, the RPD’s errors do not stem from its analysis of the fact
that the applicant took no real action to attempt to obtain the protection of
her country; rather, they stem from its improper assessment of the evidence (or
its assessment of improper evidence), both documentary and testimonial, which
vitiated its decision overall.
[34]
This
finding is even more determinative since the RPD did not confront the applicant
with the concerns it had about her credibility. As Justice Martineau wrote
in Kabongo v Canada (Minister of Citizenship and Immigration), 2011 FC 1106 at para 36‑39, [2011] FCJ 1369:
The decision to allow or reject a
claim for refugee protection is not an accidental or trivial action; it
requires disinterestedness, objectivity, reflection and analysis of all the
relevant factors, including the refugee claimant’s testimony, on the part of
the panel. It is on the quality of the written reasons that are provided, if
any, and thus on the analysis of the facts of the case, that a court sitting on
judicial review will be able to determine whether the panel’s conclusion
constitutes a possible and acceptable outcome in the circumstances (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190).
Given that
the fear of persecution contains a subjective component and an objective
component, the panel is required to critically assess the credibility and
conduct of refugee claimants (Canada (Attorney General) v. Ward, [1993]
2 S.C.R. 689). It goes without saying that the panel cannot assess the credibility
of claimants or reject the evidence they have adduced without giving them the
opportunity to be heard and to have their counsel argue their case.
First, the panel must ensure that
it confronts refugee claimants at the hearing on every inconsistency, real or
apparent, in their account of persecution, without criticizing, blaming, making
disparaging comments or showing unjustified aggression and impatience,
particularly because this is often a refugee claimant’s only opportunity to be
heard in person. See Jaouadi v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1347, [2003] F.C.J. 1714; Guermache v. Canada
(Minister of Citizenship and Immigration), 2004 FC 870, [2004] F.C.J. 1058;
Hernandez v. Canada (Minister of Citizenship and Immigration), 2010 FC
179 at paragraphs 44-45, [2010] F.C.J. 199.
Second, once it has made its
decision (whether it is communicated orally or in writing), the panel must be
able to explain why it did not accept the refugee claimant’s explanations, if
applicable. . . .
[Emphasis added]
[35]
While
the RPD was obliged to confront the applicant on every deficiency and
contradiction in her testimony, it was also obliged to base its findings on the
evidence in the record and to justify them. In that sense, I cannot find, as the
respondent does, that this was not a fatal error because the RPD’s decision
might have been different in the absence of this error. Since the RPD relied on
certain documents that were not part of the applicant’s record for a central
element of its decision, it is impossible to speculate what its decision would
have been without this error.
The RPD made unreasonable
findings in evaluating the applicant’s credibility
[36]
The
respondent contends that the RPD’s determination of the applicant’s credibility
was reasonable and determinative of the outcome of her refugee application in
this case. However, this finding is not supported by the evidence or by the
transcript of the applicant’s testimony at the hearing.
[37]
If
the RPD wanted to hold against the applicant the fact that her PIF did not set
out events subsequent to her arrival in Canada, which are corroborated by the
affidavit of the sarpanch, it should have, like any other question regarding
the applicant’s credibility, confronted her with its doubts and allowed her to
explain.
[38]
In
light of my finding about the RPD’s errors in its analysis of the applicant’s
subjective fear and of her credibility, it is not necessary for me to examine
the last issue raised by this application, i.e. whether the RPD conducted a
separate analysis based on subsection 97(1) of the IRPA and gave adequate
reasons for its refusal. This application for judicial review is therefore allowed.
[39]
I
am of the view that the analysis of the applicant’s subjective fear as well as
the analysis of state protection that was available to her are tainted by two
significant errors that make the decision under review unreasonable.
[40]
At
the hearing, counsel for the applicant suggested the following as a question of
general importance: Is it fatal that the RPD based a finding of fact in part on
evidence that was not in the record? In the Court’s opinion, this is a question
that should be determined on a case‑by‑case basis.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES as follows:
1.
The
application for judicial review is allowed, and the decision made by the RPD on
January 31, 2012, is set aside.
2.
The matter is remitted to the Immigration and Refugee
Commission for a reconsideration of this refugee application and for a new
hearing before another member of the Refugee Protection Division.
3.
No question is certified.
“Jocelyne
Gagné”
Certified
true translation
Mary
Jo Egan, LLB
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