Date:
20121128
Docket:
IMM-424-12
Citation:
2012 FC 1379
Ottawa, Ontario,
November 28, 2012
PRESENT: THE
CHIEF JUSTICE
BETWEEN:
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PARMJIT KAUR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
Applicant, Ms. Parmjit Kaur, is a citizen of India. Among other things, she
alleges that she would face a serious risk of persecution, including physical
harm and death, if she were required to return to India.
[2]
The
Refugee Protection Division of the Immigration and Refugee Board of Canada (the Board)
rejected her claim for protection after finding that her “basic story” was not
plausible, her testimony was not credible, and her actions in the 17 months
following her departure from India demonstrated a lack of subjective fear of
persecution.
[3]
Ms.
Kaur submits that the Board erred in reaching these findings. She also submits
that the Board erred by failing to properly consider her psychologist’s report,
the Chairperson’s Guidelines on Women Refugee Claimants Fearing
Gender-Related Persecution [Guidelines] and her claims under section 97 of the
Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[4]
I
disagree. For the reasons that follow, this application is dismissed.
I. Background
[5]
Ms.
Kaur is 30 years old and of Sikh ethnicity. In December 2008, she was visited
by a Muslim friend from college (Salina), Salina’s brother and a friend of his.
On their way back to their home town from this visit, Salina and the two men
were allegedly stopped at a police check. Her brother’s friend, who was
suspected to be associated with the Hizbul Mujahideen, escaped. However, Salina and her brother were arrested. During questioning, they informed the police that
they and the brother’s friend had stayed at Ms. Kaur’s home.
[6]
Later
that month, police from Ms. Kaur’s home village allegedly arrested her. She
claims that she was suspected of having knowledge about the Hizbul Mujahideen
and that she was beaten and humiliated at the police station. After her father
paid a bribe, she was released. However, once others in the community
began to learn that she had been detained by the police, she began to be
subjected to various forms of harassment and abuse that she submits amount to
persecution.
[7]
The
police allegedly raided Ms. Kaur’s home on June 4, 2009, when she was not
present. On June 9, 2009, she departed for the United States. She lived in the
State of Washington until October 2, 2010, when she came to Canada. She claimed refugee protection on October 29, 2010.
II. The
Decision under Review
[8]
At
the outset of its decision, the Board identified the determinative issue as
being the credibility of Ms. Kaur’s allegations.
[9]
In
discussing this issue, the Board began by explaining why it had determined that
her “basic story” was implausible. The Board then discussed various reasons why
it found her testimony to be not credible.
[10]
The
Board noted that Ms. Kaur’s actions following her departure from India demonstrated a lack of subjective fear, because (i) she failed to claim asylum in the United States during the 16 months that she lived there, and (ii) she failed to claim refugee
protection in Canada immediately upon her arrival in this country.
[11]
Given
that Ms. Kaur’s allegations involved how a woman in India may be treated as a
result of certain types of rumours, the Board observed that the issues raised
in her application were relevant to the Guidelines. However, in the absence of
credible evidence that Ms. Kaur faced gender-related persecution in India, the Board stated that those guidelines were not applicable to her situation.
[12]
Finally,
given its adverse credibility findings and the fact that the allegations in
support of Ms. Kaur’s claims under section 97 of the IRPA were the same as
those she advanced in relation to her claim under section 96, the Board
summarily rejected her claims under section 97, without further discussion.
III. Standard of Review
[13]
The standard of review applicable to the
Board’s findings with respect to Ms. Kaur’s credibility and her lack of
subjective fear is reasonableness. The same is true with respect to the Board’s
treatment of the report prepared by Ms. Kaur’s psychologist, the Guidelines and
her claims under section 97 of the IRPA. (Dunsmuir v New
Brunswick, 2008 SCC 9 at paras 51-55, [2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras
46-47, [2009] 1 S.C.R. 339; and Velez v Canada (Minister of Citizenship and
Immigration) 2010 FC 923 at paras 22-23 (available on CanLII) [Velez]).
IV. Analysis
A. The Board’s adverse
credibility findings
[14]
Ms.
Kaur submitted that the Board erred by finding that two aspects of her
allegations were implausible and by finding that her testimony was not
credible.
[15]
I
agree that the Board’s two implausibility findings were not reasonable. The
first such finding concerned Ms. Kaur’s statement that, after the police came
to her house, she never spoke to her friend Salina again. In my view, it was
unreasonable for the Board to find that statement to be implausible. If Ms.
Kaur did, in fact, believe that she had been betrayed by her friend Salina, it is entirely understandable that she might not have spoken with her again. Common
experience reflects that such behaviour is not uncommon, and certainly is not implausible.
[16]
The
second implausibility finding concerned Ms. Kaur’s assertion that her source
for certain key information in her allegations was the police who arrested her.
The Board found that it was not plausible that the police would tell Ms. Kaur
that the information they were accusing her of was secured through torture. I
respectfully disagree. This finding was unreasonable, particularly in the
absence of any discussion of how police in India behave.
[17]
However,
in my view, the Board’s conclusion that Ms. Kaur’s testimony was not credible
was reasonable. That conclusion was based largely on findings that the Board
made with respect to (i) inconsistencies and other problems that it identified
with respect to Ms. Kaur’s testimony, and (ii) the absence of important aspects
of her allegations in the Personal Information Form [PIF] part of her
application. The principle findings in this regard were as follows:
i.
Her
testimony was contradictory and continued to grow throughout the course of the
hearing. In particular, when asked at the outset of the Board's hearing whether
she had ever experienced harassment or mistreatment on public transportation in
India, Ms. Kaur replied in the negative. However, after it was pointed out to
her that country documentation indicates that women in India are sometimes harassed on public transportation, she then stated that people would point her
out and call her demeaning names. It was only after being asked whether she
experienced anything worse than being called names that she mentioned that
small children threw stones at her. Later in the hearing, when pressed again on
this point, she added that some people had stated that she had no right to live
and should be killed. When further pressed, she then stated that “the society
threw stones” at her and tried to kill her. These important allegations were
not mentioned in Ms. Kaur’s PIF, which simply noted that people called her “by
different bad and humiliating names.”
ii.
She
could not reasonably explain how people who had never seen her before and who
did not know her by name were able to associate her with the rumours allegedly
going around.
[18]
I
am satisfied that it was entirely reasonable for the Board to conclude, based
on the foregoing findings, that Ms. Kaur’s principal allegations and testimony
were not credible. That conclusion was well “within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” and was appropriately justified, transparent and intelligible (Dunsmuir,
above at para 47).
B. The Board’s conclusion
with respect to subjective fear
[19]
Ms. Kaur submitted that the Board’s finding with respect to her
absence of subjective fear was unreasonable. I disagree.
[20]
That
finding was made based on the fact that Ms. Kaur failed to claim refugee protection
during the 16 month period that she lived in United States and then failed to
claim such protection immediately upon her arrival in Canada. In my view, given the long duration of her stay in the United States, the Board’s
finding was not unreasonable. Indeed, it is entirely consistent with the
jurisprudence of this Court involving claims of a similar or shorter duration.
(See, for example, Duarte v Canada (Minister of Citizenship and Immigration),
2003 FC 988 at paras 14-15, 125 ACWS (3d) 137; Espinosa v Canada
(Minister of Citizenship and Immigration), 2003 FC 1324 at para 17, 127
ACWS (3d) 329; Fernando v Canada (Minister of Citizenship and Immigration),
2001 FCT 759 at para 3, 107 ACWS (3d) 115; Castillejos v Canada
(Minister of Citizenship and Immigration) (1994), 52 ACWS (3d) 614 at para
12 (available on QL) (TD); and Huerta v Canada (Minister of Employment
and Immigration) (1993), 40 ACWS (3d) 487, 157 NR 225 (CA)).
[21]
However,
I would note for the record that the mere failure to claim refugee protection
in Canada for a period of a few weeks after the claimant’s arrival in this
country would not normally constitute a reasonable basis, in and of itself, for
making a finding of lack of subjective fear, particularly when, as here, the
applicant sought the assistance of counsel during that period.
C. The Board’s treatment
of the psychologist’s report
[22]
Ms.
Kaur submitted that the Board erred by disregarding, failing to properly
address or misapprehending the evidence set forth in the report of her psychologist,
in the course of reaching its adverse findings with respect to her credibility.
I disagree.
[23]
In
its decision, the Board noted that Ms. Kaur had visited a psychologist on two
occasions shortly before the hearing and had provided information to the psychologist,
which was summarized in the psychologist’s report. The Board then referred to
the psychologist’s evidence regarding her symptoms of Post-Traumatic Stress
Disorder [PTSD] and observed that such evidence “does not mean that her
symptoms are necessarily resulting from the reasons [that she identified].” The
Board also noted that the psychologist had obtained the information about what
had allegedly occurred in India from Ms. Kaur herself, and that in view of the
credibility concerns it had identified with respect to Ms. Kaur’s testimony, it
had decided to give no weight to the psychologist’s report, in terms of
corroborating those alleged events.
[24]
On
its face, this treatment of the psychologist’s report suggests that it may only
have been taken into account in assessing whether it provided corroboration for
Ms. Kaur’s allegations, and may not have been taken into account in assessing
Ms. Kaur’s credibility as a witness.
[25]
Ms.
Kaur submits that the Board was obliged to specifically consider the psychologist’s
report in its assessment of her credibility, and that its failure to
demonstrate in its reasons that it did so constitutes a reviewable error.
[26]
In
support of her position, Ms. Kaur relied upon this Court’s decisions in Csonka
v Canada (Minister of Citizenship and Immigration), 2001 FCT 915 at para
29, 107 ACWS (3d) 851 (TD); Khawaja v Canada (The Minister of Citizenship
and Immigration) (1999), 172 FTR 287, 92 ACWS (3d) 672; Rudaragi v
Canada (Minister of Citizenship and Immigration), 2006 FC 911 at para 6
(available on CanLII); Atay v Canada (Minister of Citizenship and
Immigration), 2008 FC 201 at paras 30-32, 165 ACWS (3d) 319; and Mico v
Canada (Minister of Citizenship and Immigration), 2011 FC 964 at paras
49-56, 1 Imm. LR (4th) 1 [Mico].
[27]
However,
all but the last of those decisions predate Dunsmuir, above; and the
remaining case (Mico, above) predates the Supreme Court’s decisions in Canada (Canadian Human Rights
Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 [Mowat]; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]; Alberta (Information
and Privacy Commissioner) v Alberta Teachers’ Association 2011 SCC 61, [2011] 3
SCR 654 [Alberta Teachers]; and Halifax (Regional Municipality) v
Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364 [Halifax].
[28]
In
each of those more recent decisions, the Supreme Court essentially reiterated
its teaching in Dunsmuir, above at para 48, that the reasonableness
standard of review contemplates a level of deference that “imports respect for
the decision-making process of adjudicative bodies with regard to both the
facts and the law” (Mowat, above at para 29; Newfoundland Nurses,
above at para 11; Alberta Teachers, above at paras 53-54; and Halifax,
above at para 51).
[29]
Moreover,
in Newfoundland Nurses, Alberta Teachers and Halifax, the
Supreme Court elaborated upon the degree of deference and respect that is
required when a Court is reviewing an administrative decision on a
reasonableness standard of review.
[30]
In
Newfoundland Nurses, above at paras 12-17, Justice Abella, speaking for
a unanimous Court, rejected the proposition that the “adequacy” of reasons is a
stand-alone basis for quashing a decision and she endorsed the view that a
reviewing court must first seek to supplement reasons before seeking to subvert
them. In this regard, she observed that judges should “be cautious about
substituting their own view of the proper outcome by designating certain
omissions in the reasons to be fateful.” She also noted that it is not
necessary for an administrative tribunal’s reasons to address “all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred,” to withstand a review under a reasonableness
standard. Rather, reasons will be sufficient if they allow the reviewing court
to understand why the decision was made and permit the court to determine
whether the conclusion is within a range of acceptable outcomes. Justice Abella
added that “courts should not substitute their own reasons, but they may, if
they find it necessary, look to the record for the purposes of assessing the
reasonableness of the outcome.”
[31]
In
Alberta Teachers, above at para 53, Justice Rothstein, speaking for the
majority of the Court, stated: “If there exists a reasonable basis upon which
the decision maker could have decided as it did, the court must not interfere.”
[32]
In
Halifax, above at paras 45-49, Justice Cromwell, speaking for a
unanimous Court, stated that “the reviewing court should ask whether there was
any reasonable basis on the law or the evidence” for the conclusion reached by
the administrative tribunal. Stated differently, he observed that “a result
reached by an administrative tribunal is reasonable where it can be ‘rationally
supported’,” and that a “reasonableness review must focus primarily upon
whether there is any basis in reason” for the tribunal’s decision.
[33]
In
my view, this recent jurisprudence from the Supreme Court has significantly
reduced the scope for setting aside decisions of the Board on the basis that it
did not consider or did not sufficiently consider the contents of a
psychologist’s report. It has also significantly narrowed the range of
potential circumstances in which the Board may be said to have an obligation to
explicitly consider and address, in its reasons, the contents of a
psychologist’s report in making credibility findings.
[34]
If
the Court can ascertain any reasonable basis in the evidence for the
Board’s adverse credibility findings, or if those findings can be said to be
rationally supported, for example, on the basis of confirmed and important
inconsistencies, contradictions or omissions [ICOs] in the evidence, those
findings should ordinarily withstand the Court’s review (Dunsmuir, above
at para 41). This is true even if the evidence in question is not specifically
mentioned, or is only partially addressed, in the Board’s decision.
[35]
Where
the Board has based an adverse credibility finding upon ICOs in a refugee
applicant’s evidence, that finding will ordinarily enable the Court to
determine why the finding was made. If those ICOs are important and confirmed
upon a review of the underlying evidentiary record, the Board’s reasons and
that record will ordinarily enable the Court to be satisfied that the finding
and the ultimate conclusion reached by the Board fall within a range of
acceptable outcomes. These determinations should suffice to enable the Board’s
finding to withstand scrutiny (Newfoundland Nurses, above at para
16), unless there is something in a psychologist’s report that strongly
suggests that the adverse credibility finding is in fact unreasonable.
[36]
The
fact that there may be something in the psychologist’s report which provides an
alternative potential explanation for all or some of the ICOs will not change
the fact that those ICOs, once confirmed through a review of the record,
provide a reasonable basis, or rational support, for the Board’s adverse
credibility finding and its ultimate conclusion. This is particularly so when
the psychologist’s report only provides a partial explanation for some of the
ICOs.
[37]
For
example, the fact that the report may, as in this case, state that an
applicant’s PTSD, or other condition, causes the applicant to be fragile,
confused, anxious, distressed or emotional during questioning, or to dissociate
under stress, ordinarily would not reasonably explain a failure to mention an
important aspect of the applicant’s story in his or her PIF. This is especially
so when the PIF was prepared with the assistance of counsel. Having regard to
the above-mentioned teachings in Newfoundland Nurses, Alberta
Teachers and Halifax, it is also not immediately apparent how such
psychological conditions might suffice to deprive an adverse credibility
finding that was based on flagrant contradictions or important discrepancies of
its rational support or to deprive it of any reasonable basis.
[38]
In
my view, unless there is something in a psychologist’s report which strongly
suggests that an adverse credibility finding made by the Board was
unreasonable, it would be inconsistent with the Supreme Court’s teachings to
require the Board to specifically address the report or anything in the report
in making such a finding. That is to say, this would be inconsistent with the
Supreme Court’s position that reviewing courts should not interfere when there
is any reasonable basis in the evidence for the conclusion reached by
the Board, or when the decision can be rationally supported. It would
also be inconsistent with the emphasis that the Supreme Court has now
repeatedly given to the need for reviewing courts to give respectful deference
to the findings of administrative tribunals. This is particularly so with
respect to matters of credibility, which “are at the very heart of the task
Parliament has chose to leave to the [Board]” (Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319 at para 60 (available on
CanLII)).
[39]
In
this case, there was nothing in the psychologist’s report which strongly
suggested that the Board’s adverse credibility finding was unreasonable.
There was also nothing that would have explained Ms. Kaur’s failure to mention
important aspects of her allegations in her PIF, such as that people had tried
to kill her and would threaten to do so again in the future. I recognize that
psychological conditions described in the report provided a potential
explanation for why Ms. Kaur’s testimony was contradictory and
continued to grow throughout the course of the hearing. However, the Board’s
failure to explicitly mention in its decision whether it considered those
conditions in making its adverse credibility finding did not deprive that
decision of either its rational support or a reasonable basis in the evidence.
[40]
It
follows that it was not unreasonable for the Board to have failed to
specifically address the psychologist’s report in the course of making its
adverse credibility finding. The fact that the Board did in fact mention the
psychologist’s report elsewhere in its decision simply served to further
insulate the decision from intervention by this Court (Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425, at
para 28).
D. The Board’s treatment
of the Guidelines
[41]
Ms.
Kaur submitted that the Board erred by concluding that, in the absence of
credible evidence that she faced gender-based persecution in India, the Guidelines were not applicable to her situation. I disagree.
[42]
This
submission was baldly stated in Ms. Kaur’s written submissions and not
mentioned at all in the oral submissions made by her counsel.
[43]
The
Board specifically noted that the nature of Ms. Kaur’s allegations raised
issues that are relevant to the Guidelines. However, given that it found those
allegations to be not credible, it concluded that the Guidelines were not
applicable to her situation.
[44]
The
Guidelines can be very useful in the assessment of claims for refugee
protection. However, they are not law, nor are they binding for the Board.
[45]
The
Guidelines address, in Section D, special problems faced by women refugee
claimants in demonstrating that their claims are credible. However, none of
those problems applied to Ms. Kaur’s situation. In Section C, the
Guidelines discuss evidentiary matters. However, once again, the issues
discussed in that section of the Guidelines were not relevant to Ms. Kaur’s
situation, because her allegations were found to be not credible.
[46]
The
Board’s choice of words in stating that the Guidelines were not applicable to
Ms. Kaur’s situation was not a model to be followed in the future. As the
Board itself noted, the nature of the allegations raised by Ms. Kaur did, in
fact, raise issues relevant to the Guidelines. It would have been more accurate
for the Board to have stated that it had indeed recognized that the nature of
Ms. Kaur’s allegations was unique to women, as described in Section B of the
Guidelines, and that after having assessed those allegations in their social
and cultural context, as it had done, it found them to be not credible.
Ideally, the Board would have added that, before reaching that finding, it had
considered the evidentiary matters in Section C of the Guidelines and the
special problems identified in Section D of the Guidelines, and that it had
found those evidentiary matters and special problems to have not been relevant
to Ms. Kaur’s situation.
[47]
In
my view, given the nature of the adverse credibility findings made in this
case, and the nature of the analysis that was in fact conducted by the Board,
its failure to explicitly discuss the above-mentioned sections of the
Guidelines did not constitute a reviewable error (Higbogun v Canada
(Minister of Citizenship and Immigration), 2010 FC 445 at paras 65-67, 367
FTR 114).
E. The Board’s treatment
of Ms. Kaur’s claims under section 97
[48]
Finally,
Ms. Kaur submitted that the Board failed to assess her claim under section 97
of the IRPA. I disagree.
[49]
At
paragraph 16 of its decision, the Board explicitly stated that it considered
the claim made by Ms. Kaur under section 97. It then noted that the allegations
made in support of that claim were the same as those she had advanced in
support of her claim under section 96. It proceeded to observe that since it
had already found those allegations to have not been credible, it could also find
that there was no foundation for her claim under section 97. On that basis, it
refrained from further discussing Ms. Kaur’s claim under section 97.
[50]
The Board is not obliged to conduct a separate analysis
under section 97 in each case. Whether it has an obligation to do so will depend on the particular circumstances of each case (Kandiah v Canada (Minister of Citizenship and Immigration), 2005 FC 181 at para
16, 137 ACWS (3d) 604). Where no claims have been made or evidence adduced that
would warrant such a separate analysis, one will not be required (Brovina
v Canada (Minister of Citizenship and Immigration), 2004 FC 635 at paras
17-18, 254 FTR 244; Velez, above at paras 48-51).
[51]
Given that the allegations made by Ms. Kaur in support of
her claims under section 97 were the same as those that she advanced in support
of her claims under section 96, the Board was under no obligation to undertake
a second analysis of those claims under section 97, once it had found that her
allegations were not credible.
V. Conclusion
[52]
For
the reasons set forth above, the adverse findings reached by the Board with
respect to Ms. Kaur’s credibility, her subjective fear and the Guidelines were
not unreasonable. Similarly, it was not unreasonable for the Board to have
failed to (i) explicitly address the psychologist’s report in assessing Ms.
Kaur’s credibility as a witness, or (ii) reconsider her allegations a second
time, in the context of making its assessment of her claims under section 97.
[53]
Accordingly,
this application is dismissed.
JUDGMENT
THIS
COURT ORDERS AND ADJUGES THAT this application is dismissed.
There is no
question for certification.
“Paul S. Crampton”
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