Date : 20040611
Docket : IMM-5571-03
Citation : 2004 FC 850
BETWEEN :
LOVEDEEP SINGH DHANJU
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("the Board"), dated June 18, 2003, in which the applicant was determined not to be a Convention refugee or a person in need of protection. The applicant seeks an order setting aside this decision and referring the case back for determination.
[2] The applicant is a thirty-year-old female citizen of India and a Sikh. She claims to have a well-founded fear of persecution by the authorities in India by reason of her imputed political opinion and as a member of a particular social group. She also claims to be a person in need of protection.
[3] On May 13, 2003, a hearing was held to decide the applicant's claim and, on June 18, 2003, the Board found the applicant not to be a Convention refugee as she did not have a well-founded fear of persecution. The Board also concluded that she was not a person in need of protection and that there was no credible basis for her claim.
[4] The applicant's allegations can be summarized as follows. In May 2001, the applicant, her mother and father were arrested by the police and beaten while in custody. In addition to being beaten, the applicant was sexually assaulted by a police officer while she was detained, and her and her mother were released only after a bribe was paid. However, the police did not release her father and she still does not know his whereabouts. Following the applicant's release from custody, a doctor treated her for her injuries.
[5] The reason for the arrest and beating was that the police wanted to know the whereabouts of her brother, as he was to be a key witness in an upcoming case brought against the police by the father of Balwant Singh who disappeared after being arrested in November 2000. The police also arrested the applicant's brother in November 2000 and he later went into hiding after learning of the applicant's arrest.
[6] In its decision, the Board found that the applicant simply did not demonstrate that she was credible or that the alleged events had in fact occurred. The Board observed that the documentary evidence indicated that the situation in Punjab was now under control and that the pattern of disappearances appeared to have ended.
[7] At the hearing, the applicant testified that if she were to return to India, the police would either kill her or send her to jail where she would be subjected to cruel treatment, the reason being that the police are still actively looking for her brother. The applicant also testified that her brother had since disappeared and that the plaintiff in the case, the father of Balwant Singh, had also disappeared. The Board then questioned the applicant as to why the police would still pursue her if the case was not going forward. The applicant testified that the police are probably scared of her family. The Board found this answer to be unacceptable, querying why the police would have released her if they wanted to kill her. The applicant claimed that the Sarpanch, due to its authority, convinced the police to release her.
[8] The Board continued to question the applicant about the Sarpanch's authority and why the Sarpanch could not have the applicant's father released as well. In response to this, the applicant stated that the Sarpanch did not have the authority to have her father released. The Board found that these inconsistencies affected the applicant's credibility and that she did not demonstrate that she would be wanted by the police if she were to return to India.
[9] Additionally, regarding the Balwant Singh case, the applicant did not provide the Board with any information such as court filing papers, the hearing date, or the names of the lawyers involved. Based on this and the applicant's testimony, the Board concluded that she did not demonstrate that such a case existed.
[10] The Board found the applicant's allegations lacked credibility and concluded that no reliable evidence was presented to establish that the applicant had a serious possibility of persecution or that she would be subjected personally to a danger of torture, to a risk to her life or to a risk of cruel and unusual treatment or punishment in India.
[11] In this application for judicial review, the applicant submits that the Board's negative credibility findings were made in a perverse or capricious manner or without regard to the evidence. Specifically, the Board erred in ignoring psychological and medical evidence submitted on behalf of the applicant that supported her claim for refugee status.
[12] The applicant submits that the Board erred by not admitting the medical evidence she presented prior to the hearing. The fact that the applicant is a victim of torture and rape and, as stated in her psychological report, is suffering from post-traumatic stress disorder, could have explained her confusion in answering certain questions at the hearing. The applicant submits that it was an error for the Board not to have examined the medical and psychological documentation when assessing her credibility and that it was improper for the Board to draw negative inferences and disbelieve her testimony in light of the corroborative evidence submitted in support of her claim.
[13] The respondent submits that, since the applicant's submission regarding an explanation for her confusion at the hearing was raised before the Board, she is not permitted to raise it now as the explanation could have been offered to the Board itself. Additionally, the respondent submits that a close examination of the medical and psychological evidence presented by the applicant shows that neither her psychologist nor her medical doctor concluded that her psychological condition could impeach her ability to testify to the point that she would contradict herself.
[14] As noted by Mr. Justice Martineau in Lubana v. Canada (Minister of Citizenship and Immigration), 2003 FCT 116 at paras. 7- 12, a case involving a factual situation similar to this one:
The determination of an applicant's credibility is at the heartland of the Board's jurisdiction. This Court has found that the Board has well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility and the subjective fear of persecution of an applicant: see Rahaman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1800 at para. 38 (QL) (T.D.); and Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 at para. 14.
. . .
Normally, the Board is entitled to conclude that an applicant is not credible because of implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakenable terms": see Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.); Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)...
. . .
...[A] lack of coherency or consistency in the claimant's testimony should be viewed in light of the claimant's psychological condition, especially where it has been medically documented: see Reyes v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 282 (QL) (C.A.); Sanghera v. Canada (Minister of Employment and Immigration) (1994), 73 F.T.R. No. 155; and Luttra Nievas v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 34 (QL) (T.D.).
[15] In light of the circumstances of this case, and taking into account the evidence on the record and the Board's decision in its entirety, I find the Board's findings regarding the applicant's credibility to be patently unreasonable.
[16] Although the applicant failed to submit extremely pertinent medical and psychological evidence 20 days prior to the hearing, as required by Rule 29 of the Refugee Protection Division Rules, the applicant's explanation at the hearing regarding why the delay occurred was more than reasonable and, as such, the Board erred by not admitting the documents into evidence.
[17] Furthermore, the letters submitted by the applicant provide the basis for her claim and are entirely relevant in order to fairly evaluate it. The documents all confirm her story of being beaten and raped by the police, specifically the letter from the doctor that attended to her after she was released from custody. The doctor notes that the applicant was admitted into a hospital from May 4 - 12, 2001 inclusive and that she was treated for "a fractured collar bone (left), a wound above left knee, multiple blunt injuries, [indecipherable] tissue injuries, bruises and abrasions on neck, breast, thigh and vaginal area tenderness...[and] was in a condition of traumatic shock" [emphasis in original]. Dr. David Woodbury, Director of the West Montreal Counselling Centre, who has had 32 counselling sessions with the applicant also provided a letter, and in it he notes that she is suffering from "Posttraumatic Stress Disorder (PTSD) with Panic Attacks, as well as Major Depressive Disorder, Single Episode, without Psychotic Features...". It was unfair for the Board not to have considered, or at least mentioned it, in its decision. The applicant in this case had a right for her story to be heard, and the maxim audi alteram partem applies here. The Board erred by failing to admit the letters into evidence.
[18] Additionally, in contrast to the Board's finding, the fact that the applicant does not know the whereabouts of her father or brother, as well as Balwant Singh and his father, actually supports the applicant's fear of persecution by the police. Further, when questioned by the Board as to why the police may want to harm her were she to return, the applicant responded that they might fear her family, presumably due to the accusations she may make regarding the cruel treatment she was subjected to while in custody. For the Board to conclude that this is not an acceptable explanation is wholly unreasonable given the circumstances of this case. The fact that all the witnesses seem to have "disappeared" supports the applicant's fears.
[19] Lastly, I would like to address one other point that was raised at the hearing by counsel for the respondent, and that is whether the respondent was prepared to address the issue of whether the Board erred by failing to admit the applicant's medical and psychological documents into evidence. Counsel for the respondent took the position that it was not prepared to do so, claiming that the issue had not arisen in the written submissions before the Court.
[20] I disagree with the respondent and note that the applicant raised this specific issue in both her initial application for judicial review as well as in her affidavit. Further, the respondent, in its reply, addressed the matter directly. Thus, contrary to the respondent's submission, the fact that the issue was raised at the hearing could not have come as a surprise to the respondent, as it addressed it in its reply, beginning at paragraph 9.
[21] Accordingly, this application for judicial review is allowed and the matter is sent back for redetermination and rehearing by a differently constituted panel.
JUDGE
OTTAWA, Ontario
June 11, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5571-03
STYLE OF CAUSE: LOVEDEEP SINGH DHANJU v. MCI
PLACE OF HEARING: MONTREAL
DATE OF HEARING: 18 MAY 2004
REASONS FOR JUDGMENT: Justice Paul Rouleau
DATED: June 11, 2004
APPEARANCES:
Me Stewart Istvanffy FOR THE APPLICANT
Me Marie-Claude Paquette FOR THE RESPONDENT
SOLICITORS OF RECORD:
Me Steward Istvanffy
Montreal, Quebec FOR THE APPLICANT
Me Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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