Federal Court Decisions

Date: 20020207

Docket: IMM-348-01

Neutral citation: 2002 FCT 140

BETWEEN:

                                                                LAKHWINDER KAUR

                                                                                                                                                    Applicant

                                                                              and

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

NADON J.

[1]                 The applicant seeks to set aside a decision of the Refugee Division of the Immigration and Refugee Board (the "Board") dated December 28, 2000, pursuant to which she was found not to be a refugee.

[2]                 The applicant, born on April 1, 1971, is a citizen of India. She claims a well-founded fear of persecution by reason of her imputed political opinion and membership in a particular social group.

[3]                 The applicant arrived in Toronto, Ontario, on July 19, 1999, and claimed refugee status in Montreal on July 26, 1999. Her story, in brief, is as follows.

[4]                 She married Parsem Singh in March 1988. Between May 1988 and December 1991, the applicant and her husband were harassed and mistreated by the Indian police because they were suspected of helping militants. More particularly, the applicant's father-in-law died in August 1990 "because of police torture", and in December 1991, her husband was killed by the police "in a fake encounter". During that period of time, the applicant, her husband and other family members were beaten and mistreated by the police.

[5]                 In February 1992, the applicant joined the Punjab Medical Institute for Nurse Training. After the course, which lasted 18 months, she began looking for work and completed her high school studies. Between June 1994 and April 1996, she worked at the Chitra Hospital as a nurse. As of May 1996, she worked at the Baath Hospital in Jalandhar.

[6]                 According to the applicant, the police continued to harass her relatives. As they did so, the police apparently kept asking for news of the applicant. The applicant changed employment and began working at the Chawla Hospital, again as a nurse. While she worked there, a man from the village of Sansarpur, one of her patients, asked her if she would marry his son, Sukhjit Singh. The son occasionally came to the hospital to visit his father, and the applicant thus had occasion to meet him and to discuss the possibility of marriage. After discussing the matter with her parents, who consented to the marriage, the applicant then informed Sukhjit Singh that she would marry him. On April 16, 1997, the marriage took place.

[7]                 The applicant then states that someone who came to the hospital in August 1998 to visit a friend or a relative, recognized her as having been previously married to a man suspected of militancy. Shortly thereafter, according to the applicant, the police raided her house in Sansarpur in the early hours of August 19, 1998. She claims that she and her husband were tortured and that the police accused her of having lived "underground" in order to help militants. According to the applicant, the police had been looking for her "for a long time". Her husband was also allegedly tortured and the police accused him of having married a militant's wife. She then says that she lost her job because her employer became aware of her past life. She states that on June 2, 1999, the police again came to her house and arrested her and her husband, as well as her father-in-law. The applicant states that she and her husband were tortured and released after seven days. Apparently, her father-in-law was released the day following the arrest.

[8]                 As a result, the applicant and her husband decided to leave India and made arrangements to that effect with an agent. The plan was to first send the applicant to Canada, and her husband would shortly follow. On July 19, 1999, the applicant boarded a flight leaving New Delhi accompanied by her agent. After her arrival in Toronto on July 19, 1999, she applied for refugee status in Montreal on July 26. She claims to have inquired about her husband after her arrival in Canada, and that she was informed that the police had "raided" the agent's premises in New Delhi and had arrested her husband. The applicant states that she has not heard from her husband since.

[9]                 After reviewing the evidence, the Board concluded that the applicant was not a refugee primarily on the ground that "core portions" of her story were implausible. At pages 2 and 3 of its Reasons, the Board states the following:

Having analyzed all the evidence both oral and written, the panel finds that the claimant is not a "Convention refugee" for the following reasons:

The panel assessed the evidence and found core portions of the claimant's story to be implausible. The claimant, after the death of her first husband led a rather normal life. The difficulties of being a widow were evident in her testimony and the evidence. She never the less managed to get her life on track by obtaining a nursing degree and employment and remarrying. Her allegations that she would be targeted following the August 1998 incident are too farfetched to believe. The evidence showed that after her first husband was killed she was not harassed by police. The evidence also showed that after 1992 the police would only ask her relatives about her and nothing else. The panel does not find it plausible that the police, at the height of militancy would only inquire about the claimant and nothing else and then, all of a sudden target, arrest and beat her in 1998. The claimant's story is out of sequence with the reality, as described in documentary evidence concerning the situation in the Punjab today. The documentary evidence shows that by 1992 the police had crushed the militant movement. Any activities of the police following 1992 were directed at high-profile militants. In the claim at bar the claimant's first husband was a suspected militant and was killed in 1991. The claimant simply does not fall within the category of someone at risk.

[10]            The Board then went on to buttress its findings by reference to the documentary evidence concerning the Punjab, which led it to conclude, at page 4, as follows:

The panel has no reason to doubt the opinions of the above-mentioned experts and finds that the claimant does not have any type of profile which would make her a suspect or target of police if she were to return to India.

[11]            Ms. Rochester, for the applicant, submits that the Board made a number of errors in concluding that her client was not a refugee. Specifically, she argues that the Board erred in the following respects: (1) the Board did not consider the totality of the evidence before it; (2) the Board disregarded a medical reported dated November 11, 2000, prepared by a Dr. Donghier (Exhibit P-15), and the applicant's personal documents (Exhibits P-1 to P-12); (3) the Board erred in concluding that the applicant's profile was not such as to attract police attention should she return to India.

[12]            Ms. Rafai Far, for the respondent, argues that the Board's conclusion that a substantial part of the applicant's story was implausible, is entirely supported by the record. As a result, she submits that this judicial review application should be dismissed.

[13]            The starting position, with respect to implausibility, is the Federal Court of Appeal's decision in Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315, where Décary J.A., for the Court, made the following remarks at paragraph 4:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of t he record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged his burden. [Emphasis added]

[14]            Are the conclusions and inferences drawn by the Board in the present case so unreasonable as to warrant my intervention? In my view, they are not.

[15]            The Board did not find it plausible that the police would suddenly, in 1998, after years of neglect, take an active interest in the applicant. The Board was of that view because since the death of the applicant's husband in December 1991, the police had not shown any interest whatsoever in her. Following that conclusion, the Board went on to state that the applicant's story was "out of sequence with the reality, as described in the documentary evidence concerning the situation in the Punjab today."

[16]            Whether or not the documentary evidence fully supports the Board's view that the applicant's story is out of sequence with reality, I am nonetheless of the view, on the evidence, that the Board's conclusion regarding the implausibility of the police taking an interest in the applicant in 1998 is certainly not an unreasonable conclusion.

[17]            In reaching that conclusion, the Board seems to have accepted, or at least did not dispute, the applicant's story that between 1988 and 1991, she had been mistreated by the police by reason of their suspicion that her first husband was a militant. However, the Board could not accept that part of her story commencing in August 1998.

[18]            Ms. Rochester argues that the Board erred because it did not mention nor give any weight to the medical report written by Dr. Donghier (Exhibit P-15). Since Dr. Donghier's evidence did not indicate when, in time, the injuries to the applicant had occurred, they could have occurred either in 1998 or in 1991, or during both periods. Since the Board did not dispute the applicant's pre-1992 story, Dr. Donghier's evidence could be taken to support the injuries which occurred at that time. However, Dr. Donghier's report cannot be put forward as supporting, per se, the 1998 mistreatment of the applicant.

[19]            Since, in my view, the Board's conclusion regarding the implausibility of the 1998 events is not unreasonable, I cannot fault the Board for not having referred to or given any weight to Dr. Donghier's report. Consequently, in the circumstances of the case, the omission to refer to the Donghier report is not an error.

[20]            With respect to Ms. Rochester's submission that the Board failed to consider or analyse Exhibits P-1 to P-12, I have not been convinced that that constitutes an error. It is now trite law that the Board does not, as a matter of principle, have a duty to consider every factual issue or to discuss every single piece of evidence introduced before it. Whether or not a particular piece of evidence should be specifically considered and analysed, will depend on the particular circumstances of the case. In the present case, it is my view that the circumstances did not oblige the Board to discuss any particular piece of evidence, including Exhibits P-1 to P-12. I should mention that the Board, in its Reasons, indicated that the evidence before it included a medical report and some of the applicant's personal documents. Thus, the Board was certainly aware of these documents. As Hugessen J.A. stated in Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598, Court No. A-1307-91, judgment June 11, 1993:

The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed.

[21]            Finally, with respect to the Board's conclusion regarding the applicant's profile, I must regretfully conclude that I see no merit in Ms. Rochester's submission. In my view, Ms. Rochester's submission amounts to stating that it is possible that her client might have been suspected and, hence, arrested by the police. In my view, neither I nor the Board can disagree with that submission. However, that is not the issue which was before the Board. The issue was whether, in the light of all the evidence, including the documentary evidence, it was plausible that the applicant would attract police attention and consequently be arrested. The Board concluded that it was not plausible. As Lutfy J. (as he then was) stated in Singh v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 25, Court File No. IMM-2803-95, judgement dated January 10, 1997, at paragraph 9 of his Reasons:

[9]           The tribunal, in my opinion, received sufficient evidence to support its decision concerning the changed circumstances in India. The record also establishes some contrary evidence on the same issue, including family correspondence warning the applicant not to return to India. However, it is not the function of this Court to determine whether a different view could have been reached from an analysis of the same evidence. In my view, there is no reviewable error in the manner in which the tribunal reached its decision.

[22]            In the instant case, the documentary evidence referred to by the Board in support of its conclusion is not entirely supportive of its conclusion. However, much of it is and, in my view, there was certainly enough in the documentary record to justify the Board's conclusion that the applicant, in the light of all the circumstances, did not have a profile which would attract police attention. The fact that some of the documentary evidence could lead to a different conclusion is not sufficient to allow me to conclude that the Board made a material error which would justify my intervention.

[23]            For these reasons, notwithstanding Ms. Rochester's forceful arguments to the contrary, this application for judicial review shall be dismissed.

                                                                                               Marc Nadon

                                                                                                           Judge

O T T A W A, Ontario

February 7, 2002.