Date: 20020528
Docket: IMM-1146-01
Neutral citation: 2002 FCT 603
BETWEEN:
MANJIT KAUR BAINES, KULVARAN SINGH BAINES
and MANJINDER SINGH BAINS,
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants seek to set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated February 5, 2001, whereby the Board found that the applicants were not Convention refugees.
[2] The main applicant and mother, Manjit Kaur Baines, born on September 11, 1963, and her two sons, Manjinder Singh Baines, born on July 22, 1983, and Kulvaran Singh Baines, born on February 10, 1987, all citizens of India, fled their country for Canada and claimed refugee status by reason of their membership in two social groups, Sikhs from the Punjab and their family. They allege a fear of persecution by the police.
[3] On February 5, 2001, the Board dismissed their claims on the ground that they were not credible. The entire issue before me, and indeed the only one raised by the applicants, concerns the Board's conclusion that they were not credible.
[4] According to the applicants, the Board made nine errors in reaching its conclusion. I begin with the Board's overall conclusion, which appears at page 2 of its Reasons:
[...] are not "Convention refugees" for the following reason: they are not credible. It has not been demonstrated with credible evidence that the police ever persecuted their family and that they would be at future risk of persecution if they returned to India.
[5] The first finding made by the Board in support of its conclusion was that the mother knew nothing of Kashmir Singh and his family, an alleged neighbour and a close friend of her husband. Kashmir Singh was apparently killed because of his membership in an outspoken small political faction group, to which her husband also belonged. By reason of his involvement in this political group and his friendship with Kashmir Singh, the mother's husband was allegedly beaten by the police until he fled the village. The applicants' story is that following the husband's departure, they became the target of police persecution.
[6] In their Memorandum, at paragraph 8, the applicants make the following submission:
8. We suggest it is capricious, as per s. 18.1(4)(e) of the Federal Court Act, to impeach a Punjabi woman's credibility because she knows only little about one of her husband's friend [sic], even if she perceived her husband and his friend as « very close friends » , and that the friend lived only 1 km away from her home.
[7] In my view, on the evidence before it, it was not capricious of the Board to draw an adverse inference regarding the mother's credibility. At pages 38, 39 and 40 of the January 15, 2001 transcript, the following questions and answers can be found:
BY REFUGEE HEARING OFFICER (addressing Claimant)
Q. Now, I want you to talk to me about Kashmir Singh. What do you know about Mr. Kashmir Singh?
A. Kashmir Singh was a friend of my husband.
Q. A close friend?
A. Very, yes.
Q. Did you know him personally?
A. Yes.
Q. Okay. You said that he used to come to your house. Is that correct, Madame?
A. Yes.
Q. Was he married?
A. Yes.
Q. Do you know the name of his spouse?
A. No, I don't know her name, he was the only one who used to visit our home.
Q. Okay. Did he have any children?
A. Yes, he had children, that's what my husband was saying, that he's married, he has children but I didn't ask more than that.
Q. Do you know what his position among the political party of (inaudible), your husband's party?
A. Yes, he was a member and then he made my husband a member.
Q. Do you know what was his position?
A. He was a good person and he was recognized.
Q. Any particular position in the party?
A. Yes, the leaders would come up, he would escort the leaders to the Sikh temple and they'd come there and preach.
Q. He was an escort, he escorted the leaders?
A. That's right.
[8] In my view, it was open to the Board to find that the mother lacked credibility by reason of her inability to answer basic questions concerning Kashmir Singh. Based on common sense and rationality, she should have been able to provide information to the Board regarding someone who was a close friend of her husband and who regularly came to their house.
[9] The applicants' story is that Kashmir Singh, a prominent leader of a political party who recruited the mother's husband into the party, lived 1 km from the applicants' family home. The evidence was also to the effect that Kashmir Singh regularly borrowed and shared farm tools and implements with the applicants' family, that he was of the same age as the husband, and finally that he was married with children.
[10] Yet, the mother's evidence was that she did not know the name of Kashmir Singh's wife, nor anything about his children. As it appears clearly from the above questions and answers, the mother could only provide very general answers.
[11] It is therefore my view that the Board's finding on this point is not unreasonable. At page 2 of its Reasons, the Board explains its finding as follows:
The panel finds that the claimant's lack of knowledge, concerning Kashmir Singh and his family, contradicts her assertion of a close relationship between her husband and Kashmir Singh who would be in a village only one kilometre away. Since the claimant describes her husband's second arrest as being associated with Kashmir Singh's fate, the panel does not believe that the March 31, 1997 incident occurred. The panel also does not believe that Kashmir Singh recruited her husband. The panel believes that the 1995 membership [sic] was adduced to display the name of Kashmir Singh, but it is not a genuine card. The panel does not believe that the claimant knew Kashmir Singh. Her credibility was affected.
[12] The applicants argue that cases like Armson v. Canada (MEI) (1990), 9 Imm. L.R. (2d) 150 (CAF) and Chan v. Canada (MEI), [1995] 3 S.C.R. 593, support the proposition that Canadian courts should not be too strict in demanding that refugee claimants meet Western style norms or concepts. It has often been argued that refugee claimants, in giving their testimony, have problems with interpreters and in adapting themselves to a completely different culture and to different norms and expectations.
[13] However, problems with interpreters or problems of adaptation and understanding of other cultures have nothing to do, in my view, with whether an applicant is telling the truth about events which occurred in his or her country. Knowingly little about a very close friend of the family or any other piece of information that should be in an applicant's knowledge has nothing to do with cultural differences. In any event, it is not sufficient to raise "cultural differences". Proof thereof must be made.
[14] The Board's finding concerning the mother's lack of knowledge about Kashmir Singh and his family is sufficient, in my view, to support its overall conclusion that the applicants were not credible. I do not therefore propose to address all of the points raised by the applicants, but will comment on two of the other issues raised.
[15] The applicants' testified that the mother and her eldest son were beaten and tortured in a police station on August 16, 1999. The Board, in addressing that part of their story, states at page 3 of its Reasons that:
4. [...] But, she alleges that, hardly six weeks earlier, she was hit by a wooden stick and by leather belts. She had her head pounded against a table, injuring her eyebrow and she was hit with a broken bottle, injuring her arm. All that before the alleged rape.
Even if the claimant possesses good recuperative power, the panel does not find plausible that the claimant would have suffered what she alleges, only a few weeks earlier, and be able to answer so soon after that that she suffered no medical problem. The panel is confirmed in its previous finding that the August 16, 1999 incident never happened.
5. Doctor Pelletier (Exhibit P-8) confirms that the claimant bears a scar on her left elbow and one on her eyebrow. Exhibit P-8 is silent concerning alleged scars resulting from being hit by a wooden stick and belts. The panel finds that, in view of the claimant's lack of credibility, Exhibit P-8 is insufficient to corroborate the claimant's allegations concerning the incident of August 16, 1999. The panel cannot speculate about the cause of the claimant's reported injuries, but the panel does not believe that they were caused in the manner described by the claimant.
[16] The applicants' submissions regarding this finding appears at paragraphs 25 to 28 of their Memorandum:
25. The panel finds the medical report at exhibit P-8 « insufficient to corroborate the claimant's allegations concerning the incidents of August 16th, 1999X;
26. A medical report cannot link cause and effect. It is not reasonable and indeed an error, to conclude scars do not « corroborate » allegations of torture, no matter how insufficient the medical report is perceived to be;
27. It continues [footnote omitted]:
" The panel cannot speculate about the cause of the claimant's reported injuries, but the panel does not believe that they were caused in the manner described by the claimant. "
28. It is suggested the panel makes a mistake of law when it concludes it would « speculate » about the applicant's injuries given evidence from her testimony, her medical and psychological evidence, and documents on country conditions that confirm her situation is widespread. This, we believe, establishes a rape, and allows the inference she might be again. We read from Re: Naredo et M.E.I., 130 DLR 4d, page 754, Justice Urie:
" As is usual in these cases, to answer the questions required the Board to draw inferences from the facts established in evidence. To do so is the Board's duty, in any event. "
[17] In my view, the Board made no error of fact or of law, when it made its finding. With respect to the psychological evidence to which the applicants refer in paragraph 28 of their Memorandum, the Board's conclusion is found at pages 4 and 5 of its Reasons:
8. The claimant adduced a psychological report (Exhibit P-10) which describes the claimant as suffering from Post Traumatic Stress Disorder (PTSD). It is rather surprising to find in that report a political judgement on the situation in India. At page 4, the psychologist writes that the claimant « was living in the political context of oppression of the Sikhs in India » . The psychologist refers to documents from 1990 to 1995 to make such a statement. However, the claimant's alleged family problems with police are said to have started in September 1995. Exhibit A-7 en liasse contains articles from various sources, which indicate the return to calm and normal life before 1995. Exhibit A-5 at page 13 confirms the end of the insurgency and the anarchy, which prevailed until 1991. The psychologist appears to have gone beyond her professional domain by making assessments of the political situation in a foreign country to justify her findings. Such assessments lay in the domain of the Refugee Division. As to the PTSD syndrome, Exhibit A-8 indicates that there are several other problems, which could be confused with PTSD. The psychologist does not indicate that she tested the claimant to eliminate from her diagnosis the other various possible alternatives to the diagnosis she rendered. In the absence of such evidence and because of inappropriate political judgement, the panel finds that the psychological report does not warrant any probative value. ...
[18] I am also of the view that the Board made no reviewable error in reaching that conclusion. It is trite law that in assessing the evidence before it, including reports of a medical nature, the Board is entitled to weigh that evidence and draw the necessary inferences. The Board concluded that it could not give any weight to Dr. Pelletier's report (Exh. P-8), nor to the psychologist's report (P-10). The applicants have not persuaded me that in reaching that conclusion, the Board made an error.
[19] In summary, I am of the view that there was sufficient evidence in the record to support the Board's conclusion that the applicants were not credible. As a result, I have not been persuaded that the Board erred in dismissing the applicants' claims to refugee status.
[20] For these reasons, this application for judicial review shall be dismissed.
Marc Nadon
JUDGE
O T T A W A, Ontario
May 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1146-01
STYLE OF CAUSE: MANJIT KAUR BAINES and Others
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUÉBEC
DATE OF HEARING: JANUARY 31ST , 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE NADON
DATED: MAY 28, 2002
APPEARANCES:
MR. JEAN-FRANÇOIS BERTRAND FOR THE APPLICANTS
MR. MICHEL PÉPIN FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
BERTRAND, DESLAURIERS FOR THE APPLICANTS
MONTRÉAL, QUÉBEC
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA