Date: 19990308
Docket: IMM-4029-97
BETWEEN:
BALJIT KAUR BAINS
AKASHDEEP SINGH BAINS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
| A. INTRODUCTION |
[1] These are applications for judicial review pursuant to section 18.1 of the Federal Court Act R.S.C. 1985, c. F-7 [as amended] in which the applicants request the Court to set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (hereinafter "the Refugee Division"), dated September 2, 1997, dismissing their claims to be recognized in Canada as Convention refugees. The principal applicant is the mother of the other applicant, who is a minor, and since the child"s claim is dependent on that of his mother (hereinafter "the applicant") it is necessary in these reasons only to consider the claim of the principal applicant.
[2] The applicant claimed refugee status because of her well-founded fear of persecution in India by reason of her membership of a particular social group, namely her family relationship to her brother, a well-known suspected Sikh terrorist.
| B. FACTUAL BACKGROUND |
[3] In her documentary and oral testimony to the Refugee Division the applicant stated that her family had been the subject of detention and other forms of harassment at the hands of the Punjab police since the early 1980s as a result of her brother"s active membership in the All India Sikh Student Federation and, more importantly, the suspicion that he had been involved in acts of terrorism. In 1990 her brother fled to Germany, but returned to India in 1994 when their mother was ill. He was subsequently arrested and is apparently still in prison in New Delhi.
[4] The applicant testified that, prior to her brother"s imprisonment, the police arrested and detained her father and husband on several occasions in an attempt to obtain information about her brother"s activities and whereabouts. She also gave evidence that, after being arrested, beaten and detained for a day, her husband left India in 1994, and has since contacted her from Italy. However, she has not been in communication with him since 1996 and does not know where he is.
[5] The applicant also stated that, although never herself arrested, she and other female members of her family were instructed to attend at a police station. In addition, the police came so frequently to question her at the school where she taught that in 1996 the school principal was forced to dismiss her from her position as a teacher. With the assistance of an agent, the applicant left India for Canada in July 1996. On her arrival, she made a refugee claim.
| C. THE REFUGEE DIVISION"S DECISION |
[6] The central issue before the Refugee Division was whether, on the evidence before it, the applicant had established that her fear of persecution if she were returned to India was objectively well-founded. The Refugee Division heard evidence from a Mr. Somal, who was qualified as a lawyer in India, but has lived in Canada since 1983. He has had a long-standing interest in police abuses in Punjab through his former professional activities and his ongoing association with human rights organizations.
[7] In its reasons for decision the Refugee Division summarized as follows Mr. Somal"s evidence on the applicant"s fear of persecution in Punjab:
[He] is of the opinion that while at the present time there is some relief from police atrocities in Punjab, people like the claimant, who are related to suspected militants, are still at risk. He states that persons who are witnesses against the police are most at risk. In his view, if the claimant returns to India, she might be taken into custody and interrogated with respect to her brother"s links with terrorists in Canada, and that she may be arrested in order to bring her husband before the police.
[8] Without expressly referring to this evidence again, the Refugee Division concluded that the applicant"s fear of persecution had no reasonable basis in fact. The Refugee Division based this finding of fact on the documentary evidence of both Mr. Brack, the Deputy Program Manager of Immigration at the Canadian High Commission in New Delhi, and Mr. Brooks, of the Canadian Security and Intelligence Agency, who was familiar with the security situation in Punjab from first-hand experience. Their evidence was contained in the notes for a speech that Mr. Brack had given at a conference on Punjab in Montreal in January 1997, and in interviews conducted at that time. The documentary evidence also contained the text of an interview that Mr. Ravi Nair, Executive Director of the South Asia Human Rights Documentation Centre, had also given during the same conference.
[9] The evidence of these three people contradicted the oral testimony given by Mr. Somal at the Refugee Division"s hearing of the applicant"s claim. Thus, Mr. Brack stated that "people who are not high profile militant suspects are not a risk in Punjab today", and that "Sikhs with some connection to the militancy, say through a family member, would not now be targets of Punjab police." The Refugee Division relied on Mr. Brooks" statements as evidence that "there are only a few high-profile militant suspects left at large, with virtually none of them residing in Punjab itself." Although less sanguine than Mr. Brack and Mr. Brooks about the cessation of human rights abuses by the Punjab police, Mr. Nair also said that a family member of a person suspected of anti-state activities would not now be considered a high profile suspect.
[10] Finally, the Refugee Division rejected as proof of the well-foundedness of the applicant"s fear a report by a psychologist to the effect that the applicant was suffering from depression and other symptoms of post-traumatic stress disorder, and that these were likely to worsen if she were returned to India.
| D. THE ISSUES |
[11] At the hearing of the application for judicial review, counsel for the applicant, Mr. Waldman, identified as the principal issue the Refugee Division"s failure to give any explanation in its reasons for preferring the documentary evidence of Mr. Brack and Mr. Brooks over the viva voce evidence of Mr. Somal, an expert witness who has testified before the Board on several occasions about human rights abuses in Punjab.
[12] In addition, Mr. Waldman argued that the Refugee Division"s failure to mention the documentary evidence submitted to it on behalf of the applicant underscored the fact that the Refugee Division had been unduly selective in the evidence upon which it had relied to make the critical findings of fact. Accordingly, he concluded, the Refugee Division had erred in law by failing to discharge its statutory duty to give adequate reasons for its decision, or to consider the evidence as a whole.
[13] A secondary issue concerned the Refugee Division"s rejection of the psychologist"s report as evidence of the well-foundedness of the applicant"s fear. Counsel suggested that the report was also relevant for the purpose of establishing that there are "compelling reasons arising out of [the applicant"s] past persecution" to continue to regard her as a Convention refugee under subsection 2(3) of the Immigration Act, despite a change of circumstances causing the fear of persecution to cease to exist. However, as the applicant has not been recognized as a refugee, this subsection is not relevant in this proceeding: Singh v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.; IMM-75-95; July 4, 1995).
[14] Accordingly, the issues to be decided in this application for judicial review may be formulated as follows:
| 1. Did the Refugee Division err in law in dismissing the applicant"s claim on the basis of reasons that do not explain why it preferred certain documentary evidence over both viva voce and documentary evidence of expert witnesses, and failed to refer to other documentary evidence that had been submitted in support of the claim? |
| 2. Did the Refugee Division err in law when it decided that a psychologist"s report that the applicant was suffering from post-traumatic stress disorder was not relevant for determining whether she had a well-founded fear of persecution? |
| E. LEGISLATIVE FRAMEWORK |
[15] Federal Court Act R.S.C. 1985, c. F-7 [as amended].
| 18.1(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal ... (c) erred in law in making a decision or an order, whether or not the error appears on the fact of the record; |
18.1(4) Les mesures prévues au paragraph (3) sont prises par la Section de première instance si elle est convaincue que l"office fédéral, selon le cas : ... (c) a rendu une décision ou une ordonnance entachée d"une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; |
[16] Immigration Act R.S.C. 1985, c. I-2 [as amended].
| 2(1) "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person"s nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, ... |
2(1) "réfugié au sens de la Convention" Toute personne : a) qui, craignant avec raison d"être persécutée du fait de sa race, de sa religion, de la nationalité, de son appartenance à un groupe social ou de ses opinions politiques : (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, |
| 69.1(11) The Refugee Division may give written reasons for its decision on a claim, except that (a) if the decision is against the person making the claim, the Division shall, with the written notice of the decision referred to in subsection (9), give written reasons with the decision; |
69.1(11) La section du statut n"est tenue de motiver par écrit sa décision que dans les cas suivants : a) la décision est défavorable à l"intéressé, auquel cas la transmission des motifs se fait avec sa notifica-tion ; |
| F. ANALYSIS |
Issue 1
[17] Mr. Waldman did not suggest that the Refugee Division had erred in law by applying an incorrect test of "well-founded fear of persecution". In its reasons the Refugee Division accurately states that there must be both a subjective and an objective basis for the fear, and that the applicant must prove on the balance of probabilities that there is "more than a minimal or mere possibility" that she will be persecuted: Ponniah v. Canada (Minister of Employment and Immigration) (1993), 13 Imm. L.R. (2d) 241, 245 (F.C.A.). Nor did Mr. Waldman allege that the Refugee Division had adopted an unduly narrow concept of "persecution", although he questioned on this ground some of the evidence on which it relied.
[18] Mr. Waldman did not impugn the Refugee Division"s findings of fact as perverse. However, he did point out what, in his submission, were the strengths of the evidence of Mr. Somal that the Refugee Division rejected, and the weaknesses of the evidence of Mr. Brack and Mr. Brooks that it accepted. This analysis was an important underpinning of his argument that it was an error of law for the Refugee Division to prefer without explanation the evidence of Mr. Brack and Mr. Brooks to that of Mr. Somal.
[19] In this regard, he made three points. First, he argued, Mr. Somal was recognized by the Refugee Division as an expert witness. It was therefore under a particular duty to explain why it rejected his evidence, especially since Mr. Somal was subject to questions at the hearing, while the evidence that it accepted was buried in the mass of documentary materials typically considered in refugee determination proceedings, and had not been tested by cross-examination.
[20] Second, Mr. Waldman submitted that, in expressing his opinion that persons are not "at risk in Punjab", except for "high level militant suspects", including "a perceived leader of a militant organization, or someone suspected of a terrorist attack", Mr. Brack may have had in mind only the risk of death, torture or prolonged detention and interrogation. In other words, he may have intended to include in this risk assessment a much narrower range of human rights abuses than those included within the concept of "risk of persecution" as understood in the law of refugee protection. This may include the kind of repeated harassment to which the applicant in this case testified that she and her family was subjected by the Punjab police.
[21] Third, Mr. Waldman observed that it was difficult to understand how the Refugee Division reconciled the evidence of Mr. Brack and Mr. Brooks with that of the applicant when she testified that she had been the subject of harassment in 1996, a time when, according to the evidence accepted by the Refugee Division, only high-profile suspects were at risk. I take it that Mr. Waldman"s point here is that the existence of this apparent contradiction in the evidence of witnesses required an explanation.
[22] Counsel for the respondent, Ms. O"Leary, emphasized that weighing the evidence and making findings of fact, including the assessment of the credibility of claimants, is at the heart of the Refugee Division"s specialized jurisdiction. Judicial intervention is therefore justifiable only in the most egregious cases. In addition, a tribunal is not required to refer to every piece of evidence before it in order to discharge its statutory duty to give reasons for its decisions.
[23] Counsel at the hearing seemed to agree that the Refugee Division regarded the applicant as a generally credible witness. However, that is not how I read its reasons for decision. It seems clear to me that the Refugee Division did not believe much of the evidence given by the applicant. The reasons start by listing those aspects of her testimony that the Refugee Division found "problematic", by which it seems to have meant "untrue".
[24] Thus, the Refugee Division stated: "we found it unreasonable to believe" the claimant"s account of her husband"s departure from India in 1994; the claimant"s evidence of her family"s harassment "did not ring true"; "we think it unlikely" that the applicant was forced to leave her teaching position; "we think it highly unlikely" that the applicant"s family is currently being harassed; and "we find it patently unreasonable" to believe that, with her brother in prison and the general decline in terrorist activity and police abuse, the claimant and her family will continue to attract the attention of the Punjab police.
[25] On the other hand, the Refugee Division did accept, somewhat grudgingly it must be said, that the applicant was the sister of a militant who was in prison for terrorist activity or associations. Thus, on the basis of the Refugee Division"s findings that the applicant was not credible in certain important aspects of her testimony, it had to determine the well-foundedness of her fear of persecution almost exclusively on evidence as to whether persons who fit the applicant"s profile have a well-founded fear of persecution in Punjab.
[26] The Refugee Division disbelieved the claimant"s evidence about her husband"s departure from India because it found her account to be inherently implausible. It did not accept the other aspects of her testimony because they seemed inconsistent with the documentary evidence about general conditions in Punjab after the early 1990s. While the Refugee Division may have made no explicit finding one way or the other about the general credibility of the applicant, it can be inferred from its more particular findings that it did not regard the applicant as a very credible witness.
[27] The question is whether the decision is erroneous in law because the Refugee Division was unduly selective in the evidence on which it relied, and gave no explanation at all for its rejection of the oral and documentary evidence of two expert witnesses, and other documentary evidence, with respect to police abuse within the relevant time-frame.
[28] In Gourenko v. Canada (Solicitor General) (F.C.T.D.; IMM-7260-93; May 4, 1995), Simpson J. identified the two factors to be considered when determining whether a tribunal"s failure to refer to documentary evidence constitutes an error of law: the reliability of the author and the relevance of the evidence to the issues in the case. These factors would also seem to me to be relevant in considering whether the Refugee Division erred in law in not explaining why it preferred other evidence over that of Mr. Somal.
[29] As for the allegation that the Refugee Division was unduly selective in the evidence on which it relied, it is conceded that no tribunal is obliged to refer to all the evidence submitted to it. The question is, however, whether the Refugee Division was so selective that it misconstrued or distorted the basis of the applicant"s claim: Penelova v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.; IMM-6979-93; November 17, 1994).
[30] I have concluded that the Refugee Division did not err in law on the basis of a comparison of the relative cogency of the evidence that the Refugee Division either simply summarized without further comment (that is, the oral evidence of Mr. Somal) or did not mention at all, and that on which it based its decision.
[31] Mr. Somal"s evidence was viva voce and he has been recognized as an expert witness; his evidence purported to relate to current conditions and specifically addressed the risk likely to be faced by relatives of suspected terrorists. These factors certainly give it cogency.
[32] On the other hand, during the years that he has lived in Canada, Mr. Somal"s connections with India have necessarily been indirect, through human rights organizations and others who have direct knowledge of country conditions. Moreover, he might be regarded as a less than entirely detached observer of the Punjabi political scene, and his evidence was given on behalf of the claimant at the hearing by the Refugee Division in the context of the facts of a particular case.
[33] The documentary evidence to which the Refugee Division did not refer seems to me less cogent than Mr. Somal"s testimony. The reports of individual instances of abuse are not inconsistent with an ongoing, but much reduced, level of abuse by the Punjab police, and Mr. Brack certainly did not assert that such things did not happen any more. Of the documented cases of abuse referred to, only one concerned a person who seems to have been detained solely by virtue of his family relationship with a terrorist. However, since that person was a relative of one of the bodyguards who assassinated Prime Minister Indira Gandhi, the case seems on an altogether different plane from the one before me.
[34] The affidavit sworn by Mr. Navtiran Singh in connection with another refugee claim concerned a person who had made complaints against the police, a group that Mr. Somal also identified as particularly at risk. The applicant is not in this category. Mr. Waldman argued that Mr. Somal had testified that those who were known by the police to have seen them committing a human rights abuse were thereby at particular risk of persecution. Despite some ambiguity in his evidence, Mr. Somal seems to me to have meant to identify as exposed to a high risk of persecution those who were witnesses in legal proceedings against the police, not anyone who was known by the police simply to have observed an abuse.
[35] To turn to the evidence supporting the Refugee Division"s findings, I acknowledge that it was not the subject of cross-examination, and although there might be no question of credibility involved, cross-examination would no doubt have assisted in identifying its limitations and nuances. Nonetheless, the documentary evidence relied on by the Refugee Division related to the relevant time-frame; was provided by senior public officials of the Canadian Government with first-hand experience of country conditions; and was supported in a very material respect by a knowledgeable director of a human rights organization specializing and located in South Asia.
[36] In addition to the evidence about the general decline in violence and police abuses in Punjab, Mr. Nair"s evidence that persons were not high profile suspects by virtue of their family relationship to a suspected terrorist was directly relevant to this case. The fact that he did not make this statement in the context of this or any similar proceeding only enhances its cogency. Moreover, Mr. Nair"s credentials in human rights in the area are impeccable. In my view, Mr. Nair"s evidence reinforces that of Mr. Brack and Mr. Brooks on which the Refugee Division relied.
[37] Having considered the strengths and limitations of the evidence before the Refugee Division, I have concluded that there was enough evidence in law to support its findings of fact. In addition, the relative strengths and limitations of the evidence as a whole are such that it was not an error of law for the Refugee Division merely to summarize without comment Mr. Somal"s evidence, to prefer without explanation the documentary evidence on which it relied, or to omit to refer to other documentary evidence.
Issue 2
[38] Nor do I think that the Refugee Division committed a material error of law in finding that the psychologist"s report was not directly relevant to the well-foundedness of the applicant"s fear of persecution. Such reports have been held to be relevant to the issue of the credibility of a claimant for refugee status. In addition, the fact that a person is suffering from post-traumatic stress disorder is evidence that the individual has been subject to stressful conditions, and is consistent with the fact that the person has been persecuted and fears its repetition, or simply fears that she will be persecuted: Singh v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.); IMM-75-95; July 4, 1995).
[39] In this case, the Refugee Division did not believe the applicant"s evidence that the police had harassed her and her family. The report therefore might have been considered by the Refugee Division in assessing the credibility of the applicant. However, since the Refugee Division accepted that she was the sister of a suspected terrorist, the fear that she felt both for her brother and herself might explain her present psychological difficulties. Given the latitude enjoyed by the Refugee Division as the finder of fact, the decision not to accept this report was not in all the circumstances of this case a material error of law.
[40] For these reasons these applications for judicial review are dismissed.
OTTAWA, ONTARIO John M. Evans
March 8, 1999. J.F.C.C.