Date: 199906121
Docket: IMM-5069-98
BETWEEN:
Enter Style of Cause just after [Comment] code
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PARAMJIT KAUR, GURPREET KAUR, GURRASHPAL SINGH,
MOHANVIR KAUR and GURVIR SINGH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
[1] These reasons arise out of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees. The decision of the CRDD was made at Montreal, Québec, the 21st of September, 1998.
The applicants are all citizens of India. They are Sikhs from the Punjab. Paramjit Kaur is the mother of the other applicants and was their designated representative before the CRDD. In its reasons, the CRDD indicates that Paramjit Kaur (the "principal applicant") bases her claim to refugee status on the grounds of gender persecution, imputed political opinion and membership in a particular social group, namely, her family. The children base their claims on that of their mother.
The facts underlying this application are essentially not in dispute. They are recited by the CRDD in its reasons for decision in the following terms:
Mrs. Kaur's husband was involved with the All India Sikh Students Federation (AISSF) since 1992. The husband was arrested in January 1996 while he was driving two AISSF members into hiding in the state of Haryana. He was again arrested in November 1996 as he was holding a secret meeting in the family house. One of the conditions of his second release was to report to the police station on a regular basis. He rather preferred to go underground.
On January, March, and April 1997, the police came to the house looking for the husband. During their last visit in April, they took the claimant to the police station and kept her for a few hours. She was apprehended again in the evening on July 10, 1997. She was later raped by three policemen. She was released the following morning after being warned that her next arrest would be even worse. After spending a few days at her sister-in-law's house, she remained in New Delhi until September 27, 1997 the date at which she left India and arrived in Toronto. She claimed refugee status on October 3, 1997.
The CRDD was dissatisfied with the principal applicant's responses to questions regarding her husband's involvement with the AISSF and as to why he did not leave India with his wife and children. It found her responses to these questions to be contradictory. Without further explanation, it determined that the principal applicant was "...not endeavouring to tell the truth,..." and it therefore chose to disbelieve, on a balance of probabilities, that the principal applicant was raped. The CRDD did not profess itself to disbelieve her evidence regarding visits by the police to her home and her apprehensions. It acknowledged:
The Panel understands that due to social and cultural reasons, the claimant was not able to answer questions related to her husband's alleged involvement with the AISSF.
The CRDD chose to give precedence to certain of the documentary evidence
before it over the testimony and Personal Information Form narrative of the principal applicant. It wrote:
This Panel has decided to give precedence to above mentioned documentary evidence over the claimant's oral and written testimony since the Immigration and Refugee Board has relied for years on analysis and opinions expressed by Cynthia Keppley Mahmood, the Chandigarh Tribune is a respected newspaper established since 1881, and the claimant lacked credibility in the part of her testimony related to incidents she allegedly personally experienced.
The last words of the immediately foregoing quotation are the first indication that the CRDD doubted the principal applicant's testimony regard incidents she allegedly personally experienced, apart from the alleged rapes.
In the response to an information request provided by Cynthia Keppley Mahmood relied on by the CRDD, Ms. Mahmood wrote:
Women. You didn't ask about women, but in my opinion women all over India are at risk of custodial rape and other abuses. Furthermore, internal flight is impossible for nearly all categories of women in India, on cultural grounds. In my opinion a Sikh woman who has in any way been involved with police in Punjab has a well founded fear of persecution upon return.
The CRDD described Ms. Mahmood as..."an anthropologist at the University of Maine and a well-known specialist in Sikh militancy,...".
The CRDD chose to rely upon the documentary evidence provided by Ms.
Mahmood over the testimony of the principal applicant. At the same time, it chose to ignore the quoted paragraph from Ms. Mahmood's documentary evidence that is directly relevant to the principal applicant's claimed experience.
In Gill vs. The Minister of Citizenship and Immigration1, Mr. Justice Rothstein wrote:
A panel is entitled to accept, reject and weigh documentary evidence. If a panel states it is relying on specific documentary evidence, however, it cannot arbitrarily disregard integral portions of that evidence (D'Mello v. Canada (MCI), [1998] F.C.J. No. 72 (T.D.), per Gibson, J. (QL)). The omission of the last two sentences in a paragraph that are interrelated to preceding sentences and which materially affect the application of the preceding sentences to the facts of the case at bar raises a serious concern...
In this case, it is not two sentences of a paragraph that is relied on but rather a brief separate paragraph that is apparently ignored or at least not commented on. While that paragraph is not interrelated to the portion of Ms. Mahmood's paper that is relied on by the CRDD, it is certainly directly relevant to the basis of the principal applicant's claim and, I am satisfied, can be said to "materially affect" the principal
applicant's claim. In ignoring this paragraph, while at the same time relying on another portion of the document in which it is contained to reject the applicant's own sworn evidence, and thus her claim and the claims of her children, I am satisfied the CRDD commits a reviewable error.
In light of the foregoing, this application for judicial review will be allowed, the decision of the CRDD under review will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
Neither counsel recommended certification of a question. No question
will be certified.
JUDGE
Ottawa, Ontario
June 21, 1999
__________________1 [1998] F.C.J. No. 1139 (F.C.T.D.).