Date: 20040610
Docket: IMM-2745-03
Citation: 2004 FC 841
Ottawa, Ontario, June 10, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
PARDEEP KAUR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), of a decision by the Convention Refugee Determination Division of the Immigration and Refugee Board (panel), dated March 18, 2003. In this decision, the panel determined that the applicant was not a Convention refugee within the meaning of section 96 or a person in need of protection within the meaning of section 97 of the Act.
ISSUE
[2] The only issue can be summarized as follows: was it patently unreasonable for the panel to determine that the applicant lacked credibility and therefore dismiss her claim as a person in need of protection?
[3] For the following reasons, I answer this question in the affirmative and I would allow this application.
BACKGROUND
[4] The applicant alleges that she has a well-founded fear of persecution because of her perceived political opinion and her membership in a particular social group, the family. Essentially, the applicant alleges that she had been beaten and raped by the police, who were looking for her father, himself suspected of helping terrorists.
[5] Here are the facts as stated by the panel. The applicant is an Indian citizen from Punjab. In India, she lived with her parents. Her paternal uncle lived across the street from the family home.
[6] On December 31, 2001, her father saw the police arrest the applicant's uncle and he intervened to ask the reasons for this. The police asked him to mind his own business. Later, his father went to get the village sarpanch and they went to the police station. There, they told the applicant's father that they had never arrested his brother. Still accompanied by the sarpanch, the father went to file a complaint with the police department, where he was told that his brother had gone to join the terrorists and that he had even come to his home the night before with two terrorists. The father was then accused of helping them. He was arrested and tortured.
[7] The applicant's father had been released two days later and he was ordered to return to the station on April 1, 2002, in order to provide information about his brother and other terrorists. He was frightened and left his village on May 5, 2002, to go to New Delhi. On March 25, 2002, the family received a message from him saying that he was in Moscow.
[8] On April 2, 2002, the police descended on the family's home to find out what had happened to the applicant's father. The family told the police that he had left the country, which the police did not believe. The police then arrested the applicant and her mother. She was accused of knowing everything about her father. She was beaten and raped. She and her mother were released the next day, after the police had taken their pictures and fingerprints and after they had made them sign a blank sheet. The police ordered them to bring the applicant's father and uncle to the police station. It was then that, fearing for her life, the applicant left with her mother for New Delhi. She managed to leave India on June 2, 2002, to come to Canada.
IMPUGNED DECISION
[9] The panel determined that the applicant was not a refugee or a person in need of protection because of her lack of credibility. First, when she was first interviewed by an immigration officer, the applicant did not say that she had been raped during her detention in prison. Second, her testimony contradicted the medical report filed into evidence. Third, the applicant had no evidence that she had been in India at the time that she claims she was arrested, beaten and raped. Insofar as the evidence tending to establish that the applicant had been arrested and raped, the panel concluded by stating that it did not assign it any probative value since this evidence referred to facts on which the panel had heard the applicant and which they did not believe.
ANALYSIS
[10] The standard of review applicable to questions of fact, including the issue of whether an applicant is credible, is that of patent unreasonableness. Thus, the Court will not intervene unless the panel's decision was patently unreasonable.
Failure to mention rape at the first interview
[11] The panel questioned the fact that the applicant had been raped in prison since she made the rape the main point of her claim in her Personal Information Form (PIF) and in her testimony, but she did not mention it at all during her interview with the immigration officer responsible for deciding if the claim was eligible. Both parties agree that the panel was entitled to consider the notes from this interview in its analysis.
[12] The applicant claims that it must be determined how these notes can be used. In her opinion, her only duty was to answer the officer's questions, as required under subsection 100(4) of the Act. She claims that the panel could not require more from her and that it was not entitled to find that she lacked credibility because of discrepancies arising from the fact that she did not relate everything during this interview but did do so in documents written later on.
[13] It should be noted, however, that during this meeting, the applicant stated at page 178 of the Tribunal Record, " . . . as far as my age no I am not at ease weell [sic] I have problems in India . . ." (Emphasis added). I can easily understand that a young girl of 21 would not be at all comfortable discussing the rape she had suffered. I would agree with the panel's reasoning if there was only this evidence. However, the applicant mentioned the rape afterwards in her written documentation, in her oral testimony which is corroborated by the medical report. This medical report was completely dismissed by the Board. The applicant alleged that the rape took place on April 2, 2002. A medical report in the record indicates that she was treated from April 3 to April 5, 2002: " . . . she was treated for the multiple soft tissues injuries, bruises tenderness and redness on vagina area, . . ." (emphasis added.). I therefore find that it was patently unreasonable for the panel to disregard this significant evidence.
[14] The same can be said for the affidavit of the sarpanch from the applicant's village. The sarpanch confirms the arrest and the mistreatment suffered by the applicant and her mother. With other members of his council, the sarpanch helped these people to recover their freedom by giving a bribe to the police. The panel dismissed that evidence because it did not believe the applicant on the issue of the rape. Once again, I consider that determination to be patently reasonable.
[15] Furthermore, the applicant maintains that the panel should have addressed the issue of her membership in a family whose members were wanted, so that as a result the police was harassing the applicant to obtain information on them. I agree that the panel should have addressed that aspect of the claim.
CONCLUSION
[16] I therefore find that the reasons on which the panel relied in determining that the applicant lacked credibility are patently unreasonable and I allow this application for judicial review.
[17] The parties have not proposed a serious question of general importance for certification. There is no serious question of general importance to be certified.
ORDER
THE COURT ORDERS that:
1. The application for judicial review be allowed.
2. The applicant's claim be redetermined by a differently constituted panel.
3. No serious question of general importance be certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2745-03
STYLE OF CAUSE: PARDEEP KAUR
v.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 1, 2004
REASONS FOR ORDER
AND ORDER BY: BEAUDRY J.
DATE OF REASONS: JUNE 10, 2004
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Caroline Cloutier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Montréal, Quebec