Ottawa, Ontario, April 23, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review by Gurdev Kaur Sadeora challenging an unfavourable decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) rendered on August 14, 2006. Ms. Sadeora’s claim to protection was brought under sections 96 and 97 of the Immigration Refugee and Protection Act (IRPA), S.C. 2001, c.27 but the Board rejected it on the basis of implausibility and because of the availability of an internal flight alternative (IFA).
Background
[2] Ms. Sadeora’s claim to protection from persecution was based upon an alleged history of horrendous abuse meted out to her and the members of her family between 1994 and 2003. She claimed that in June, 1994 her husband, Avtar Singh, had witnessed the murder of a police officer in their home village of Ferozepur. Not long after this event, Mr. Singh was abducted, assaulted and held for three (3) days. According to Ms. Sadeora, when he returned home, he was badly injured. A few months later, her husband was again abducted, held for ten (10) days and then returned home in a badly injured condition. This incident was shortly followed by her own abduction during which she claimed to have been tied up and beaten to the point of unconsciousness. When she was released and returned home, she learned that her husband had died on March 10, 1995 from his earlier injuries.
[3] On April 14, 1995, Ms. Sadeora’s eldest son, Harjinder Singh, was beaten by persons who wanted to know what he knew about the 1994 murder of the police officer. This was followed by two further alleged abductions of Harjinder Singh in 1996. On those occasions, Mr. Singh was supposedly beaten, tortured and again questioned about the 1994 murder. These events led both of Ms. Sadeora’s sons to flee to Thailand where they remained for five (5) years.
[4] Not long after Harjinder Singh’s return to India, he was allegedly kidnapped and murdered. Finally, Ms. Sadeora claimed to have been abducted on April 19, 2003. The description of this event contained within her Personal Information Form (PIF) was as follows:
On April 19, 2004 [later corrected to 2003], some people grabbed me from rickshaw and they hanged me oppositely and did bad behavior. I was in so bad condition that I can not explain in words. They told me that they killed my husband & son and it is my turn to die. I begged in front of them for my life that I am already died, (because of my husband and son’s death), please do not kill me.
[Quoted from original text]
[5] On December 14, 2003, Ms. Sadeora came to Canada as a visitor upon the invitation of her daughter. She later claimed refugee protection on the strength of the above-noted history of persecution.
The Board Decision
[6] In its decision, the Board correctly observed that Ms. Sadeora had been unable to identify the persons who were responsible for the events she had described. Nevertheless, the Board relied upon several witness affidavits which had been tendered to corroborate Ms. Sadeora’s story and concluded that her fear of persecution “is at the hands of Sikh militants or members of Sikh terrorist groups in India”. Having drawn an inference that the terrorists referred to in the witness affidavits were Sikh terrorists, the Board went on to make the following findings:
(a) the documentary evidence “does not corroborate [Ms. Sadeora’s] allegations that she would still be at risk of being seriously harmed or killed at the hands of Sikh militants or terrorist groups in India” because those groups were essentially defeated or inactive by the mid 1990’s;
(b) there is “no serious possibility that [Ms. Sadeora] would be subjected to persecution if she were to relocate to Delhi”;
(c) it was “implausible that the same Sikh terrorists who allegedly murdered her husband in 1995 also murdered her son Harjinder Singh in June 2002”;
(d) it was “implausible that Sikh militants in Punjab would have attacked and threatened to kill [Ms. Sadeora] in April, 2003”;
(e) “Had such incidents involving Sikh militants or terrorists been occurring in Punjab in 2002 and 2003, I find it implausible that such incidents would not be reported in the substantive documentary evidence.”;
(f) there is “no serious possibility that [Ms. Sadeora] would be subjected to persecution at the hands of Sikh militants or terrorist groups if she were to relocate to Delhi” which was a viable IFA; and
(g) it was implausible that Ms. Sadeora would be threatened by Sikh militants in Delhi.
Issues
[7] (a) What is the standard of review for the issues raised on this application?
(b) Did the Board commit any reviewable errors in its decision?
Analysis
[8] It is not disputed that the appropriate standard of review for the Board’s evidence-based plausibility conclusions is patent unreasonableness. On this point, I would adopt the statement of Justice Michael Kelen in Chen v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1611, 2002 FCT 1194 at para. 5 where he held:
5 Credibility findings of the Board are entitled to the highest degree of curial deference, and the Court will only set aside credibility decisions, or grant leave for applications for judicial review of credibility findings, in accordance with the criteria outlined above. The Court should not substitute its opinion for that of the Board with respect to credibility or plausibility except in the clearest of cases. For this reason, applicants seeking to set aside credibility findings have a very heavy onus to discharge both at the stage of seeking leave, and at the hearing if leave is granted.
[9] Notwithstanding the significant deference that is owed to the Board’s credibility and plausibility findings, this is a case where the Board’s implausibility findings do not stand up to scrutiny.
[10] It is noteworthy that nowhere in the Board’s decision is there an explicit finding that Ms. Sadeora lacked credibility. There are no findings of testimonial deficiencies or inconsistencies and there are no clear findings that the incidents described by Ms. Sadeora did not occur. What the Board seems to have based its decision upon are plausibility conclusions which, for the most part, lack clarity.
[11] Having drawn an inference that the alleged persecutors of Ms. Sadeora and her family were Sikh terrorists, the Board then concluded from the documentary evidence that the alleged incidents in 2002 and 2003 were implausible because Sikh terrorism had largely disappeared by then. One is left to wonder whether the Board found that those events did not occur at all or only that they did not occur at the hands of Sikh terrorists. Even if one was prepared to accept that the Board had found that the events of 2002 and 2003 did not occur at all, the Board made absolutely no findings of implausibility or otherwise with respect to the alleged events of 1994, 1995 and 1996. It is simply impossible to tell from the decision whether the Board accepted that Ms. Sadeora, her husband and their son had been repeatedly abducted and assaulted and, in the case of her husband, murdered, between August, 1994 and November, 1996.
[12] The Board’s finding that it was not plausible that the persons who were allegedly involved in the 1995 murder of Ms. Sadeora’s husband were also responsible for her son’s murder in 2002, fails to answer the fundamental question as to whether those events occurred as she had described. The same problems arise with respect to the Board’s finding that it was not plausible that Ms. Sadeora was attacked by Sikh militants in April, 2003. The Board does not exclude the possibility that the attacks occurred but only that Sikh terrorists were not the perpetrators. The question remains: if not Sikh terrorists, then by whom?
[13] The identification of Sikh terrorists as the likely perpetrators of the alleged crimes was based, after all, on an inference drawn by the Board. Ms. Sadeora did not identify the assailants as Sikh terrorists nor did any of the several affiants or witnesses. If it was implausible that Sikh terrorists were responsible, the Board had a duty to at least consider other possibilities including the possibility that the perpetrators were common criminals or, as was suggested by one witness, that they were associated in some way with the public authorities. In other words, if the perpetrators were not Sikh terrorists, then perhaps the Board’s inference was invalid and not Ms. Sadeora’s testimony.
[14] There can be a danger in basing a refugee decision solely on an inference tied to plausibility findings and, as the Federal Court of Appeal noted in Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, 160 N.R. 315 at para. 3, “it may be easier” to have such a finding reviewed than where an adverse credibility ruling is based on testimonial inconsistencies. The Board’s plausibility findings can be useful in assessing a claimant’s credibility but they should not be used as a substitute for a thorough credibility assessment and a clear determination about whether the essential allegations of persecution made by a claimant were accepted or rejected by the Board. In this case, Ms. Sadeora was entitled to know in clear and unmistakable terms whether and to what extent the Board believed her evidence: see Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 238, 130 N.R. 236 (F.C.A.). The Board decision here fails in that fundamental respect.
[15] The other fundamental problem with several of the Board’s plausibility conclusions is that they describe situations or events that are not inherently implausible. This Court has defined implausibility as something that is “outside the realm of what could be reasonably expected”: see Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, 2001 FCT 776.
[16] While there was a solid evidentiary foundation for the Board’s finding that Sikh terrorism in Punjab had markedly declined after the mid 1990’s, the decision, nevertheless, acknowledged that that phenomenon had not entirely disappeared by 2003. The Board specifically drew upon country condition documents which described on-going Sikh terrorism - albeit at a significantly reduced level. Violence in Punjab was described as “becoming less common” but that “incidents do occasionally occur such as explosions caused by bombs on buses and trains”. Such incidents were also noted to occur in the rest of India and were not confined exclusively to Punjab. The Board went on to quote from one publication which stated that “occasional acts of terror are still executed from time to time, primarily by surviving elements of groups based in Pakistan”. The same report noted that “the occasional terrorist activities that still occur in the State, have, by and large, been restricted to concealed bombs left behind in soft targets – predominantly public transport”. Against this record, it was patently unreasonably for the Board to say that the events described by Ms. Sadeora in 2002 and 2003 were outside the realm of what could be reasonably expected. As counsel for the Applicant correctly observed, a reduction in generalized violence is not a complete answer to the question of whether a refugee claimant faces an individualized risk and it is no basis for concluding that such events were implausible. Evidence of a reduction in terrorist violence in Punjab does not exclude from the realm of reasonable possibilities that such events could still occur on an occasional or isolated basis.
[17] The Respondent argued that the Board’s IFA determination could, by itself, support the denial of Ms. Sadeora’s claim and there is certainly authority to that effect: see Singh v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 886, 2006 FC 709 at para. 18.
[18] This case is different, however, because the Board’s IFA analysis was inextricably linked to its assessment of Ms. Sadeora’s risk profile. With the Board’s manifestly deficient analysis of the allegations of persecution and, in particular, its failure to determine whether some or all of the events Ms. Sadeora described had occurred and, if so, by whom, the Board could not carry out a meaningful IFA analysis. Indeed, the Board itself recognized the link between the two issues by basing its IFA analysis in part upon its earlier findings of implausibility with respect to the ongoing levels of Sikh terrorism in Punjab.
[19] I am not satisfied that the Board correctly appreciated the concept of implausibility which, in turn, undermines its finding that it was implausible that Ms. Sadeora would be targeted in Delhi if she was to take up residence there.
[20] Based upon the foregoing, I will allow this application and remit this matter for redetermination on the merits by a differently constituted panel of the Board.
[21] Counsel for the Applicant has proposed a number of questions for certification relating to the Board’s treatment of the Gender Guidelines. Because of my determination of this proceeding on other grounds, those proposed questions do not arise. Counsel for the Respondent did not identify a question of general importance for certification. In the result, no question will be certified in this case and no issue of general importance arises on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the matter to be remitted for redetermination on the merits by a differently constituted panel of the Board.
"R. L. Barnes"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5050-06
STYLE OF CAUSE: GURDEV KAUR SADEORA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: APRIL 11, 2007
AND JUDGMENT BY: Justice Barnes
APPEARANCES:
|
David Matas
|
|
|
Omar Siddiqui
|
|
SOLICITORS OF RECORD:
|
David Matas Barrister and Solicitor 602-225 Vaughan Street Winnipeg, MB, R3C 1T7
|
|
|
Aliyah Rahaman Department of Justice Prairie Region 301 – 310 Broadway Winnipeg, Manitoba R3C 0S6 |