Calgary, Alberta, February 8, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a 36-year-old Fijian citizen. As an ethnic Indo-Fijian and a practicing Hindu, she claimed to fear persecution from native Fijians on the basis of her ethnicity and religious identity. She sought protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected her claim. At the conclusion of the hearing of her application for judicial review, I informed the parties that I would allow the application. These are my reasons for doing so.
[2] The applicant asserted that she had been subjected to many incidents of harassment and discrimination by the native Fijians who comprise the greater percentage of the country’s population and hold more political power than the Indo-Fijians. Following the first political coup in 1987, the situation became worse. The Hindus suffered from harassment in finding jobs, medical facilities and access to seats in various professional medical and engineering colleges (primarily reserved for native Fijians). In her volunteer position as a health and social worker, the applicant suffered harassment at the hands of native Fijians. Her husband, a taxi driver, was also harrassed by native Fijians and was denied fares many times.
[3] After the May 2000 coup, native Fijians forcibly entered the applicant’s property and threatened to kill her family; they took the crops and damaged the property. In 2001, they killed some of the family’s cattle and stole the rest. In 2002, her husband was stabbed by native Fijians while driving his taxi. In March of 2003, native Fijians attacked her husband and robbed him of all of his belongings. Also in 2003, the natives came to their home and demanded money. When the applicant refused, they threatened to burn down the house. Although the incident was reported to the police, no action was taken. In April of 2004, the family’s private temple was vandalized. In December, the native Fijians broke into the house, tied up the applicant and her husband and threatened them with a knife. Their property was damaged and valuables were stolen. Although the police promised to look into the matter, nothing happened.
[4] The applicant was forced to always return home before dark in order to avoid the native Fijians. Her son suffered at school. His food was stolen and his clothing was torn by the native children. The principal did not take action.
[5] The lease for the applicant’s family land – including two acres of farming property and the house where she had lived her entire life – was due to be renewed in March, 2005. The native Fijians who owned the land refused to renew the lease and ordered the applicant’s family to leave. The family was forced to relocate to a displaced persons camp.
[6] The RPD made no negative credibility findings. The claim was denied on the basis that the feared harm was harassment rather than persecution. Further, the applicant had not rebutted the presumption of state protection.
[7] Since the issue of state protection has the potential to be determinative, I will address that finding first. The applicable standard of review is that of reasonableness. As I indicated to counsel, the RPD’s decision does not withstand a somewhat probing analysis because the member engaged in an unwarranted selective analysis of the documentary evidence.
[8] Specifically, the RPD found that the documentary evidence “indicates that racial tensions are common but that where there is evidence of destruction of property the police have investigated them”. In support of that determination, the RPD cited a Response to Information Request dated June 14, 2000. The problem is that the research relied upon by the RPD pre-dates the May 2000 coup and is antecedent to the incidents described by the applicant. A Response to Information Request subsequent to the one cited by the RPD addressed the fall-out of the May 2000 coup. It stated that the attacks against the ethnic Indian Fijians continued after the military took power and that the police did little or nothing to stop the attacks on ethnic Indians, either before or after martial law was declared.
[9] The RPD also referred to a 2004 United States Department of State (DOS) Report to support its finding of state protection. At page 2 of its reasons, the RPD stated that “documentary evidence indicates that Fiji has a police service and that it investigates and prosecutes even their own members for abuses of human rights”. Here, the difficulty is that the quoted reference related to the issue of police brutality and the abuse of apprehended persons and prisoners. The section of the DOS Report that reported on the issue of racial and ethnic discrimination suggested that the prosecution of native Fijian land-owners who discriminate against Indo-Fijians is rarely successful.
[10] The RPD (again at page 2 of its reasons) quoted from the DOS Report regarding the problem of land tenure. In so doing, the RPD cited a passage that described the difficulty associated with the alleged illegal evictions of Indo Fijians from farm lands and the reoccupations of those lands by native Fijian landowners. The RPD stopped short of referencing the passage in its entirety. The last sentence of the paragraph stating that “almost none of these violations were prosecuted” was omitted from the quotation. Similarly, the next paragraph indicating that Parliament had taken no action in this respect was also excluded.
[11] In my view, the RPD engaged in a selective analysis of the documentary evidence. Counsel for the respondent, appropriately, acknowledged that on the face of the RPD’s reasons, it appears that the member chose to refer only to those portions of the documents that would lend support to the finding of state protection thereby alleviating any requirement to confront the evidence to the contrary. Where there is evidence that may be critical to an applicant’s claim, it is essential that the RPD deal with that evidence. Selective reference to evidence that leads in one direction, without recognition of evidence to the contrary, is not appropriate.
[12] Additionally, the RPD concluded that the applicant “did not indicate that the police were unwilling or unable to investigate the said crimes and prosecute the culprits”. However, in her personal information form (PIF) narrative, the applicant did indicate that both the 2003 and 2004 home invasions had been reported to the police.
[13] These omissions, in my view, taint the RPD’s finding as to the existence of state protection. While it may be, had the RPD considered the totality of the evidence, that it would have come to the same conclusion, it is critical that material evidence central to the applicant’s position, as it is here, be considered in the analysis.
[14] The finding with respect to discrimination is also flawed. To be considered persecution, the harm suffered or anticipated by an individual must be serious and systematic. The seriousness of the harm distinguishes persecution from conduct which is merely discrimination or harassment. However, the dividing line between the concepts can be difficult to establish: Sagharichi v. Canada (Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.).
[15] While it is not for the court to substitute its view for that of the RPD, where it appears that the reasoning is arbitrary, intervention is warranted. Here, the RPD determined that “a refusal to renew a land lease, even based on the ethnicity of the lessee, amounts to discrimination and not persecution”. The proffered justification for that conclusion was that the “incident of 2001 where she testified that her cattle were stolen and that of December 2004 where she states that her home was broken into and that some personal articles were stolen, are acts of common criminals”. Then, the RPD concluded that “the other incidents, even when taken cumulatively, amount to harassment and not persecution”.
[16] What is missing is any explanation for the distinction between the incidents of common criminality and those of harassment/discrimination. I am unable to discern (from the reasons) how the stolen cattle in 2001 and the break-in of 2004 constitute “acts of common criminality”, while incidents of the stabbing of the applicant’s husband, the robberies in 2002 and 2003, the break-in of 2003 and the theft of the crops and damage inflicted on the property in 2000 amount to “incidents of harassment”. It seems to me that where the cumulative effect of a number of discriminating acts has the potential to result in a finding of persecution, it is not open to the RPD to place some acts of one side of the line and other acts on the other side of the line, without providing some rationale for having done so. Its failure in this regard leaves the distinct impression that the incidents were dealt with in an arbitrary manner. To complicate matters further, the RPD failed to have regard to all of the incidents delineated by the applicant. Again, counsel for the respondent acknowledged the evident deficiency in the RPD’s reasoning.
[17] In the absence of proper analysis, the determination must be set aside and remitted for determination. Counsel did not pose a question for certification and none arises.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted for determination before a differently constituted Refugee Protection Division of the Immigration and Refugee Board.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3994-06
STYLE OF CAUSE: NALITA DEVI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: February 7, 2007
AND ORDER: LAYDEN-STEVENSON J.
APPEARANCES:
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Mr. Satnam Aujla
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Mr. Brad Hardstaff
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SOLICITORS OF RECORD:
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Aujla Merchant Law Group Calgary, Alberta
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John H. Sims, Q.C. Deputy Attorney General of Canada
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