Docket: IMM-5560-15
Citation:
2016 FC 809
Ottawa, Ontario, July 14, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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GELEK PALMO
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [the Act] of a decision [the Decision] by a visa officer [the
Officer] to refuse the Applicant’s application for permanent residence. I agree
that the matter must be returned to a different officer for reconsideration.
II.
Background
[2]
The Applicant, born on May 8, 1974, currently
lives in Dharamsala, India. According to her narrative, she grew up and
ultimately raised her family in a small, isolated village in Tibet where she
met her spouse and where they moved in together at approximately sixteen years
of age. As their community does not make a distinction between a marriage and a
common-law relationship, they have no formal marriage document. They raised
four children, all of whom were born at home. Given the remoteness of their
village, none of those children have birth certificates, nor was there ever any
need to register their births.
[3]
In 2005, the Applicant and her spouse decided to
send their eldest daughter, Dashi Chokyi, to attend a school in India operated
by the Dalai Lama, as there was no opportunity for her continued education in
their village. About six weeks after Dashi Chokyi’s departure from the village,
the couple learned that she had made it safely to India with the help of an
agent. It was their understanding that she would be placed in one of the Dalai
Lama’s schools.
[4]
They had no contact with Dashi Chokyi after she
left the village – the Applicant had no telephone or other means to contact
her, and in any event, it was not safe for them to be in contact, given the
circumstances of her daughter’s departure.
[5]
In 2010, the Applicant’s village was hit by an
earthquake that destroyed their home and killed many, including the Applicant’s
in-laws. When the Chinese authorities learned of a subsequent anti-government
protest planned by displaced persons, including the Applicant’s spouse, the
Applicant and her spouse fled on foot to Nepal. Worried about the dangers involved
in crossing the Nepalese border, they left their three remaining children in
the care of their aunt.
[6]
Once in Kathmandu, Nepal, the Applicant and her
spouse were finally able to obtain their daughter Dashi Chokyi’s phone number.
When they contacted her, she told them that she was not attending school.
Subsequent efforts by her parents to reach her failed as she would not answer
the phone.
[7]
The Applicant’s spouse then left for Canada and
made a refugee claim. In September of 2011, the Applicant, now alone, travelled
to India. She arrived in Dharamsala in October. Not long thereafter, she ran
into her daughter, who informed her that she was still not in school and was
living with an Indian man. When the Applicant expressed her and her husband’s
disappointment, Dashi Chokyi told her that she did not want anything to do with
them anymore.
[8]
The Applicant’s spouse was accepted as a
Convention refugee in Canada on January 25, 2012. He then submitted
an application for permanent residence as a protected person in February 2012.
He included the Applicant as an accompanying dependent while listing his three
minor children (still in Tibet) as non-accompanying dependents.
[9]
A few months after the application was
submitted, the Applicant approached her daughter and explained that her father
was going to try to bring them to Canada. Dashi Chokyi advised her, however,
that she did not want to come. The Applicant states that this was the last time
she saw her daughter.
[10]
On July 15, 2013, the Canadian High Commission
in New Delhi [CHC] sent a letter to the Applicant requesting copies of various
identity and marriage-related documents. The Applicant’s spouse provided a
statutory declaration explaining that, for the reasons described above, none of
these documents could be provided.
[11]
On May 26, 2014, CHC sent a follow-up letter
stating that there was insufficient information to establish the relationship
between the Applicant, her spouse, and Dashi Chokyi and requiring an
explanation as to why the latter was not included as a dependent in the
permanent residence application. After receiving this letter, the Applicant
returned to her daughter’s home, but she had left and the neighbours did not
know where she had gone. The Applicant states she continued to search for her
daughter but was unable to find her.
[12]
The couple sent a response to CHC, including an
affidavit explaining why they did not include their daughter as a dependent on
their application: that they were estranged from her, unable to locate her, and
could not find any information about her whereabouts. They also told CHC that
they were no longer certain that Dashi was even eligible as a dependent because
they were unsure of her marital status.
[13]
On May 29, 2014, CHC sent a further letter to
the Applicant stating that her documentary evidence was insufficient to
establish the relationship between the parents and Dashi, but that the results
of a DNA test would suffice instead.
[14]
The Applicant and her spouse could not provide
any DNA test results, however, because of their estrangement from their
daughter. Instead, they provided additional evidence of their relationship,
including copies of text messages, the phone cards, and statements from two
friends from the small village in Tibet, evidencing their on-going relationship
through the years after the Applicant’s spouse obtained his positive refugee
decision.
[15]
The Applicant’s interview took place on
October 13, 2015, and the Officer refused the application two days later on the
basis that the Applicant provided “several
inconsistencies answers and could not provide a credible or plausible
explanation for [her] inconsistences and discrepancies” (Certified Tribunal Record at 2 [CTR]). The Officer
based the refusal on subsections 11(1) and 16(1) of the Act, which read as
follows:
11 (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not inadmissible
and meets the requirements of this Act.
16 (1) A person who makes an application
must answer truthfully all questions put to them for the purpose of the
examination and must produce a visa and all relevant evidence and documents
that the officer reasonably requires.
[16]
In the Global Case Management System [GCMS]
notes that accompany the Decision, the Officer provided the following
additional analysis:
While I am satisfied that the PA [the
Applicant] have [sic] some type of romantic relationship which has
continued for many years, I am not satisfied that the PA has been truthful at
interview. She has provided implausible explanations for her discrepancies, and
non-credible responses to many questions. While I recognize that there is some
secrecy and lack of knowledge of the whole process when a Tibetan child is sent
from Tibet to India, it is not reasonable that a mother would send her 14 years
old [sic] daughter to another country and not know basic information
such as the school, the agent or the friend who referred the agent. Further,
the PA’s explanation of including a specific address for Dashi on the Family
Information Form in 2013 changed significantly, which diminishes her overall
credibility. Further, which [sic] I can understand that the PA may not
have had direct contact with Dashi after she left Tibet, I don [sic] not
find her answer truthful regarding her assertion that she did now know Dashi’s
whereabouts for six years, given that she received news six weeks after leaving
Tibet that Dashi was safely in India.
[…]
While none of the inconsistencies and
discrepancies, in and of themselves, are reflective of low-credibility, when
taken in combination, I am not satisfied that the PA is credible in her
responses and has been truthful and, therefore, have insufficient information
to be satisfied that PA has complied with the Act. This application is refused
under A11 and A16.
(CTR at 3)
III.
Analysis
[17]
The Applicant submits that the Officer erred in
making unreasonable credibility and implausibility findings and misconstruing
the evidence. As such, the standard of review that applies is reasonableness (Ramalingam
v Canada (Citizenship and Immigration), 2011 FC 278 at para 14; Mescallado
v Canada (Citizenship and Immigration), 2011 FC 462 at para 14).
[18]
On the issue of credibility, given the abundance
of evidence on file documenting the fact that the Applicant and her spouse had
been together for many years, had children together, and stayed strongly
connected during their separation, it was incumbent on the Officer to provide
some explanations as to why the Applicant’s evidence on her family situation
was not believed or credible, rather than just citing “implausible
explanations”, and “non-credible responses to
many questions” without further detail.
[19]
The Officer did raise a specific credibility
issue relating to the Applicant’s daughter’s address as listed on the
Applicant’s immigration forms, stating that the Applicant’s explanations
regarding this address “changed significantly”
(CTR at 3).
[20]
I do not see, however, how any evidence on this
point could reasonably call into question the Applicant’s credibility. There is
only one address on the Family Information Form that she submitted and that was
the last address that the Applicant states where she knew her daughter lived.
Nor does a review of the GCMS notes and the interview transcript contained
therein show that there is any inconsistency in the Applicant’s explanation
about the address. She states that she understood from the interpreter that she
had to put an address there and therefore she put her daughter’s last known
address. The same interpreter that she referred to was the same individual who
signed the forms as an interpreter. The last known address is a perfectly
justifiable approach in these circumstances. I do not find it reasonable to
draw a negative credibility finding from these facts.
[21]
The Officer also appears to have drawn a
negative credibility finding from the fact that the Applicant asserted that she
had no contact with her daughter for six years but that she also received news
six weeks after Dashi Chokyi left to India that she had arrived safely at a
school there. Again, I do not find that this finding is reasonable. On light of
the larger cultural and political context of rural Tibet, which is discussed
more below, it does not strike me as non-credible that the Applicant would not,
upon hearing news of her daughter’s safety, either be able or desire to inquire
further. Along the same lines, the fact that the Applicant did not learn the
details of her daughter’s departure once her and her husband left Tibet again
does not raise credibility issues – the agent had been engaged some six years
prior, and that part of the story was long past.
[22]
As for the Officer’s finding that the
Applicant’s explanations were implausible, I find it equally unreasonable.
Plausibility findings should only be made in the clearest of circumstances (Ansar
v Canada (Minister of Citizenship and Immigration), 2011 FC 1152 at para
17). This is because, as noted in Santos v Canada (Minister of Citizenship
and Immigration), 2004 FC 937 at para 15, “plausibility
findings involve a distinct reasoning process from findings of credibility and
can be influenced by cultural assumptions or misunderstandings. Therefore,
implausibility determinations must be based on clear evidence, as well as a
clear rationalization process supporting the Board's inferences, and should
refer to relevant evidence which could potentially refute such conclusions”.
[23]
A reasonable finding of implausibility, then, would
have to take into account the cultural, economic, and political context of
rural Tibet, and it is not clear to me that the Officer adequately did so.
[24]
The Applicant, for example, explained in the
interview that she knew little and sought to learn little about her daughter’s
whereabouts in India because she was concerned about her family’s safety should
the Chinese authorities learn about Dashi Chokyi’s departure. Indeed, in the
GCMS notes, the Officer even acknowledged the necessity of such an approach (“I recognize that there is some secrecy and lack of knowledge
of the whole process when a Tibetan child is sent from Tibet to India”
(CTR at 3). Nonetheless, the Officer found it unreasonable that a mother would
send her 14-year-old daughter to another country without knowing details about
the school there, the agent who facilitated the departure, or the friend who
referred the agent, and found her explanation on this point.
[25]
The error in this analysis is that it
failed to take into account the fact that the Applicant is from rural Tibet,
has no formal education, and lived in a village so remote that her husband had
to leave town for several days to even find an agent to facilitate the exit. The
Applicant provided evidence that, in rural Tibetan culture, such business was
the role of men, while women stayed home and minded the children. The Officer
addressed none of these facts in analyzing the plausibility of the Applicant’s
narrative, and while the Applicant’s lack of knowledge about the specifics of
her daughter’s trip to India might be implausible in a Canadian context, the
Officer failed to explain why it was thus within the political climate and
remote location in which the Applicants were situated. As such, the Officer’s
dismissal of the Applicant’s “implausible explanations”
was unreasonable.
[26]
In sum, as with the credibility findings, I do
not find that the Officer adequately or in clear enough terms explained why the
Applicant’s responses regarding her daughter are implausible in light of the
evidence. For these reasons, the matter will be returned for reconsideration by
another visa officer.
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