Ottawa, Ontario, Monday the 20th day of June 2005
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
DAWSONJ.
[1] Kalwant Kaur is a citizen of Malaysia who claimed protection and status as a Convention refugee. She claimed that her ex-husband and his brothers sexually and emotionally abused her when she was in Malaysia, and that they would harm her if she returns to Malaysia. She brings this application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("RPD" or "panel") that she is neither a Convention refugee nor a person in need of protection.
[2] While in Malaysia, Ms. Kaur divorced her husband, Gurdip Singh. She gave up all claims to money or property in order to obtain custody of her children. She testified before the RPD that:
- after he learned that she wanted to divorce him, her husband phoned and threatened her, saying that she would not see her children get married;
- those threats were repeated many times;
- her husband moved to a different town because of the shame of being divorced. While he was away, he let Ms. Kaur and her children live temporarily in his house "because of the children";
- while she lived in her husband's house after the divorce, she was afraid, she changed the house locks, and repeatedly changed phone numbers;
- in the Sikh faith, family honour is important and honour killings are common in Malaysia because such killings regain lost family honour; and
- her ex-husband's brothers left her phone messages to the effect that she could have an accident at any time and be killed.
[3] The reasons of the RPD are regrettably sparse. No express finding of credibility is made. The panel accepts Ms. Kaur's testimony of abuse while married to Mr. Singh, but finds there "is no credible and trustworthy evidence before me to indicate that [her ex-husband] would persecute her if she were to return to Malaysia". This finding could only have been made if the RPD rejected Ms. Kaur's testimony, and yet it gave no proper reasons for doing so. No reasons at all were given by the RPD for rejecting Ms. Kaur's evidence as to her fear of persecution by other members of her ex-husband's family.
[4] It is trite law that it is the responsibility of the RPD to determine the credibility of testimony given before it. However, it is equally trite law that where the RPD rejects sworn testimony, reasons must be given for doing so. Those aspects of the testimony which appear not to be credible are to be specifically identified by the RPD and the reasons for such conclusion are to be clearly articulated. Here, the RPD did not do so, and its failure is an error in law that requires the decision to be set aside.
[5] In so concluding, I have noted that the RPD did make one finding of implausibility. It found that Mr. Singh's action in allowing Ms. Kaur and her children to stay in his house when he was out of town was "not the action of an abusive ex-spouse". However, this ignores the evidence that Mr. Singh made repeated death threats to Ms. Kaur from the time he learned of her desire for a divorce and while she was living in his house. The panel does not otherwise explain how it finds that a spouse whom the panel accepted was abusive while married to Ms. Kaur, and who continued to utter death threats against her is not an "abusive ex-spouse". This implausibility finding is flawed to the extent it ignores the evidence of ongoing threats, and is, in any event, insufficient to justify the complete rejection of Ms. Kaur's testimony.
[6] Before parting with this application, I wish to comment on the panel's rejection of a psychiatric report which concluded that "longstanding difficulties with her mood, self-esteem, sleep disturbance and anxiety [...] may be consistent with a Dysthymic Disorder. Ms. Kaur most likely suffers from Dysthymic Disorder. She also meets criteria for Post-Traumatic Stress Disorder, chronic type". The panel rejected this report because:
- it was "procured to try and influence the outcome of her claim";
- the visit to the psychiatrist was initiated by Ms. Kaur's counsel and not by a doctor; and
- the report was prepared after a 1½ hour interview with the psychiatrist.
[7] The panel found "on a balance of probabilities, that claimant's circumstances [...] that she has trouble sleeping sometimes have more likely been caused by the fact that her second marriage is falling apart and the prospect of her removal from Canada because of a failed sponsorship by her second husband from whom she is currently estranged is a prospect that she did not and could not anticipate".
[8] With respect to the grounds the RPD relied upon for rejecting the report, all evidence should be obtained and tendered for the purpose of trying to influence the trier of fact, the credibility of an expert psychiatrist's report is not lost only because it was requested by counsel, and a 90 minute interview may be of sufficient length to allow a psychiatrist to form an opinion. The RPD's reasons are insufficient to permit it to substitute its opinion for that of the psychiatrist as to the cause of Ms. Kaur's sleep difficulties.
[9] For the above stated reasons, the application for judicial review is allowed. Counsel posed no question for certification and I agree that no question arises on this record.
ORDER
[10] THIS COURT ORDERS THAT:
1. The decision of the RPD dated October 28, 2004 is hereby set aside.
2. The matter is remitted for re-determination by a differently constituted panel of the RPD.
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9508-04
STYLE OF CAUSE: KALWANT KAUR V. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: JUNE 14, 2005
REASONS FOR ORDER AND DAWSON J.
ORDER
APPEARANCES:
LINDA M. MINUK FOR THE APPLICANT
OMAR SIDDIQUI FOR THE RESPONDENT
SOLICITORS OF RECORD:
WINNIPEG, MANITOBA
JOHN H. SIMS, Q.C.