Docket:
IMM-813-11
Citation:
2012 FC 94
Ottawa, Ontario, January 24, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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NACHHATTAR PAL SHINMAR
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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
I. Overview
[1]
Ms.
Nachhattar Pal Shinmar applied for refugee status in Canada on the basis of her
fear of persecution in India as a single, female member of the Dalit caste. A
panel of the Immigration and Refugee Board found Ms. Shinmar not to be a
Convention refugee or a person in need of protection pursuant to ss 96 and 97
of the Immigration and Refugee Protection Act, SC 2001, c 27, [IRPA] (see
Annex for statutory references). Ms. Shinmar argues that the Board made
improper negative credibility findings against her and also failed to conduct a
proper analysis of s 97. In my view, the Board’s credibility findings were
based on the evidence, or the lack of evidence. Therefore, they were
reasonable. However, the Board failed to analyze Ms. Shinmar’s s 97 claim;
therefore, I must allow this application for judicial review in part.
[2]
There
are two issues:
1. Were the
Board’s findings on credibility unreasonable?
2. Did the
Board err by failing to conduct a separate analysis under s 97 of IRPA?
II. Factual Background
[3]
Ms.
Shinmar is a citizen of India. She was born and lived in the village of Barsal until she came to Canada in 2009.
[4]
Ms.
Shinmar’s family belongs to a lower caste called the Dalits. She and her family
were discriminated against by members of higher castes. However, with the help
of a sister living in Canada, they were able to buy some land and become
financially secure.
[5]
When
her parents immigrated to Canada in 2006, they left Ms. Shinmar to care for the
family’s home and land. When neighbours realized Ms. Shinmar was living alone,
they encroached on her land and, when she objected, they verbally abused and
threatened her. Ms. Shinmar sought help from the police but, when they found
out she was Dalit, they demeaned her and demanded money.
[6]
Eventually,
Ms. Shinmar went into hiding. Her parents encouraged her to leave and she
contacted an agent to arrange her travel to Canada.
III. The Board’s Decision
[7]
The
Board refused Ms. Shinmar’s refugee claim based on her lack of credibility. It
found a number of “serious discrepancies” and omissions in Ms. Shinmar’s
evidence.
[8]
Ms.
Shinmar stated in her written narrative that her problems with neighbours began
when they learned that her parents had left India. However, before the Board,
she said that her father had faced similar problems. Ms. Shinmar submitted
letters from her father, the village Sarpanch (leader) and a local police
officer to corroborate her narrative, but none referred to any persecution based
on land ownership. The Board concluded that Ms. Shinmar’s testimony was an
embellishment of her claim.
[9]
In
her narrative, Ms. Shinmar identified two separate occasions when she was
confronted by her neighbours. The first occurred after she complained to her
neighbours about their encroachment on her land. The neighbours fired guns into
the air to scare her. The second occurred after she complained to the police.
The neighbours gathered in front of her house and fired guns. The Board found
that Ms. Shinmar’s oral testimony contradicted her written narrative in two
ways: (1) she said the neighbours came every day to her house and (2) she
stated that guns were fired at her only once, but then changed her answer to
“twice”.
[10]
Ms.
Shinmar also testified that she was stopped from cultivating her fields by
local boys. When the Board asked why this incident was not included in her PIF
narrative, she gave no answer and began to weep. The Board said that this was
not a case of “domestic or sexual abuse” that would make it difficult for Ms.
Shinmar to testify. The Board concluded that the incident did not happen.
[11]
Ms.
Shinmar wrote in her narrative that she went to the police after gunshots were
fired at her house, but the police never investigated the incident. However, at
the hearing, she testified that she believed the police had arrested the
attackers but released them after receiving a bribe. She also stated that she
went to the police station with a neighbour but they were dismissed because of
their caste. The police also demanded money. When asked why these details were
not mentioned in her narrative, Ms. Shinmar first said that police behaviour of
this kind was common knowledge in India and then replied that she felt ashamed
to tell her father. Finally, Ms. Shinmar said that she did not realize she had
to explain everything. The Board concluded that Ms. Shinmar was manufacturing
answers to explain her omissions.
[12]
The
Board found that Ms. Shinmar’s failure to provide any documents concerning
ownership of her family’s land in India weighed against her credibility. When
asked if she had attempted to acquire documents, Ms. Shinmar replied that she
did not know she would need them. The Board found this answer unreasonable
because her claim was based on acquisition of the land, and she had ample
opportunity to obtain the documents. In fact, her father’s affidavit stated
that he had recently travelled to India to “retrieve my daughter’s documents
for her refugee hearing”.
[13]
The
Board also questioned why Ms. Shinmar’s father was late submitting his
affidavit to support Ms. Shinmar’s claim and noted that it was not from a
disinterested party. It gave the affidavit little weight.
[14]
Overall,
the Board found Ms. Shinmar to be a “difficult witness” because she tended to
wander off on tangents, offered vague answers, had difficulty recalling
specific details, and at times became very animated and began to cry. Given
that she had not submitted a medical or psychological report, the Board found
her emotional state weighed negatively on her credibility.
[15]
The
Board concluded, “I simply do not believe that…any of the significant events
that the claimant alleged happened to her, actually happened and as a result,
the claim pursuant to section 96 of the IRPA fails”. The Board also found that
Ms. Shinmar’s claim under s 97 failed because there was no other evidence to
indicate she would be at risk.
IV. Issue One - Were the
Board’s findings on credibility unreasonable?
[16]
Ms.
Shinmar maintains that the Board’s findings were unreasonable. She submits that
the Board gave undue attention to minor omissions and inconsistencies, unfairly
discounted her oral testimony without considering the Chairperson’s Gender
Guidelines, and wrongly relied on an absence of documentary evidence to make
adverse credibility findings.
[17]
In
particular, she points out that her knowledge of her father’s problems was
scant because men rarely shared information with women. In other areas, her
oral evidence was simply more detailed than her written narrative, as one would
naturally expect to be the case. Some details were omitted out of
embarrassment, which also explained her emotional state at the hearing. Some of
the threats and abuse she received were of a sexual nature, which was obviously
upsetting and difficult to recount. This is why the Board should have
considered the Gender Guidelines.
[18]
Having
reviewed the record, I am satisfied that many of the Board’s findings were
clearly merited – it was entitled to conclude that the father’s affidavit
should be given little weight, that the absence of corroborating documentary
evidence was not well-explained, that there were discrepancies and
inconsistencies in Ms. Shinmar’s evidence, and that her answers to many
questions were vague and unresponsive. The remaining question is whether the
Board’s findings were faulty for a lack of consideration of the Chairperson’s
Gender Guidelines. The Guidelines remind Board members that women sometimes
have difficulty testifying about matters relating to sexual violence, and may
have little knowledge of matters dealt with mainly by men because men may
decide not to share information with women in their families.
[19]
These
considerations certainly applied in Ms. Shinmar’s case. She had difficulty
discussing the “dirty language” that was used by her neighbours. She also knew
little about the problems her father had before leaving India. However, these areas of testimony did not figure largely in the Board’s credibility
findings. It commented adversely on her emotional state, but most of its
findings were based on the other evidence before it, or the absence of evidence.
In addition, while the Board did not cite the Guidelines expressly, it did
treat Ms. Shinmar sensitively at the hearing, allowing her occasional breaks to
compose herself, expressing concern about her well-being, and permitting her
counsel to pose questions instead of the Board member himself. In the
circumstances, I find the Board generally respected the spirit of the
Guidelines and would not fault its analysis based simply on a failure to refer
to them explicitly.
V. Issue Two - Did the
Board err by failing to conduct a separate analysis under s 97?
[20]
Ms.
Shinmar asserts that her return to India would risk her life or expose her to
cruel and unusual treatment or punishment based on her membership in a
particular social group.
[21]
While
the protections offered under ss 96 and 97 are separate and distinct, there are
some situations where the Board’s conclusions on s 96 will be determinative of
the 97 claim. Where, for example, the Board finds there is no evidence
supporting the s 96 claim, there would be no need to determine separately
whether the s 97 claim has been made out.
[22]
Here,
however, even though the Board found Ms. Shinmar not to be credible and that
the events she described did not occur, there remained the question of whether
the objective, documentary evidence could support a claim under s 97. There is
nothing in the Board’s reasons to suggest that it turned its mind to that
evidence. Therefore, in my view, the Board erred in not conducting a specific s
97 analysis.
VI. Conclusion and
Disposition
[23]
I
cannot conclude that the Board’s finding that Ms. Shinmar’s claim under s 96
was unsupported by credible evidence was unreasonable. While the Board did not
cite the Gender Guidelines specifically, it respected the spirit of the
guidelines during the hearing. However, in my view, the Board erred in not
considering whether Ms. Shinmar’s claim under s 97 was supported by the
documentary evidence. Therefore, I must allow this application in part and
order a different panel of the Board to reconsider the s 97 claim. Neither
party proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed in part;
2.
A
different panel of the Board must reconsider Ms. Shinmar’s claim under s 97 of Immigration
and Refugee Protection Act; SC 2001, c 27, and
3.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
Convention
refugee
96. A Convention refugee is a person who, by reason of a well-founded
fear of persecution for reasons of race, religion, nationality, membership in
a particular social group or political opinion,
(a) is outside each of
their countries of nationality and is unable or, by reason of that fear,
unwilling to avail themself of the protection of each of those countries; or
(b) not having a country
of nationality, is outside the country of their former habitual residence and
is unable or, by reason of that fear, unwilling to return to that country.
Person
in need of protection
97.
(1) A person in need of protection is a person in Canada whose removal to
their country or countries of nationality or, if they do not have a country
of nationality, their country of former habitual residence, would subject
them personally
(a) to a danger,
believed on substantial grounds to exist, of torture within the meaning of
Article 1 of the Convention Against Torture; or
(b) to a risk to their
life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or,
because of that risk, unwilling to avail themself of the protection of that
country,
(ii) the risk would be faced by
the person in every part of that country and is not faced generally by other
individuals in or from that country,
(iii) the risk is not inherent
or incidental to lawful sanctions, unless imposed in disregard of accepted
international standards, and
(iv) the risk is not caused by
the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by
the regulations as being in need of protection is also a person in need of
protection.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Définition
de « réfugié »
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion, de
sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne
à protéger
97. (1) A qualité de personne à protéger la personne qui se trouve au
Canada et serait personnellement, par son renvoi vers tout pays dont elle a
la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce
fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout
lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui
s’y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne
résulte pas de sanctions légitimes — sauf celles infligées au mépris des
normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne
résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection
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