Date: 19990416
Docket: IMM-3932-98
BETWEEN:
PHUL WATI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant claimed Convention refugee status on the basis of her being subjected to ongoing domestic abuse. The Convention Refugee Determination Division concluded that she had failed to discharge her onus of providing credible and trustworthy evidence to establish her claim.
[2] The applicant, 55, is a citizen of Fiji. In 1963, she began a common-law relationship with Muthu Krishna Gounder. The couple had four children, born between 1964 and 1971. The common-law relationship ended in approximately 1980, when the applicant discovered that Mr. Gounder was involved with another woman. Both during and after the common-law relationship, the applicant was involved in Mr. Gounder"s business enterprises. The applicant and her children continued to reside on Mr. Gounder"s farm after the end of their relationship.
[3] Except for a short visit with relatives in Canada in September 1989, the applicant remained in Fiji until December 1993, when she entered Canada again as a visitor. She married a Canadian in November 1994. Her request that her spousal application for permanent residence be processed within Canada, was refused in May 1995. Some five months later, she filed her refugee claim.
[4] The applicant"s position is that Mr. Gounder first became abusive towards her when she discovered his relationship with another woman. The tribunal concluded that the applicant"s allegations of his verbal and physical abuse, directly connected to the circumstances surrounding the end of their common-law relationship in approximately 1980, were not credible. Accordingly, this application for judicial review is focussed on the abuse alleged by the applicant to have occurred subsequent to the end of the common-law relationship. Her challenge of the tribunal decision is based on four principal arguments.
| (i) The tribunal"s assessment of the applicant"s credibility and the psychologist"s report |
[5] The applicant argues that the tribunal mischaracterized the evidence concerning domestic violence and erred in affording little weight to the psychologist"s report concerning the applicant"s post-traumatic stress disorder.
[6] An assistant superintendent of the Fiji Police Force confirmed in a letter that occasionally complaints were lodged by the applicant against Mr. Gounder "for domestic violence and other harassment". The tribunal, with reference to the assistant superintendent"s use of the words "domestic violence" stated:
| The panel interprets the terms "domestic violence" used here to mean verbal abuse and threats of physical violence, which is understood to have been described as such by [the assistant superintendent of Police] because of the domestic situation at the time -- the claimant continued to occupy the family home -- since he points out that the Fijian police recognised that she and Gounder were not longer in a spousal relationship when these complaints were made. That this abuse occurred after Gounder had moved out of the house is clear from the statement that Gounder was warned to stay away from her. |
The applicant challenges the tribunal"s interpretation of the assistant superintendent"s reference to "domestic violence" to mean only verbal abuse and threats of physical violence.
[7] In my view, however, the tribunal"s appreciation of the assistant superintendent"s letter must be assessed in the context of its understanding of the totality of the evidence. The tribunal took note of the applicant"s evidence, in her personal information form and in her oral testimony, that "many times Gounder would threaten her with a knife, hold her by the hair, attempt to undress her, sometimes assault her by grabbing her breasts, and many times threaten to sexually assault her". The tribunal also noted that the applicant "made the even more serious allegation that Gounder had forced her to have sexual intercourse two or three times in 1992 or 1993" and that he "would spit at her whenever he passed her and, ... this occurred many times after he sexually assaulted her". The tribunal found, however, owing to discrepancies in the applicant"s evidence, that she was not raped or sexually assaulted by Mr. Gounder after the couple separated.
[8] On the basis of the applicant"s evidence and the letter from the assistant superintendent of the Fiji Police Force, the tribunal then concluded that she "... was indeed subject to "occasional" mistreatment by Gounder between the time of their separation (in 1978-80) and her departure from Fiji". The tribunal understood and accepted, at least to a certain extent, that the claimant was subject to verbal abuse and threats of physical violence. In my view, it was open to the tribunal to reach its conclusions concerning the extent of the domestic abuse. The tribunal"s finding in this regard is the consequence of their assessment of the applicant"s credibility, not a misinterpretation of the officer"s reference to "domestic violence".
[9] Similarly, I have not been able to find any reviewable error in the tribunal"s assessment of the psychologist report. In commenting as to whether the applicant"s complaints were tantamount to malingering, the psychologist concluded:
| (f) the fact that Ms. Wati identified her chest and genital areas as retaining, holding pain (to be expected given the details of the abuse, nevertheless not something Ms. Wati would know to recognize if intended to malinger), ... |
The tribunal attributed little weight to the psychologist report in general and to the above-mentioned conclusion in particular, principally because it did not believe the information the applicant shared with the expert. With respect to the issue of malingering and the psychologist report in general, the tribunal found as follows:
| The panel does not find that this statement is persuasive or sufficient to rule out malingering by the claimant, since it would seem to be human nature for someone who feigns pain to touch or hold that part of the body allegedly affected. As a result, the panel accords [the psychologist]"s report little weight. Moreover, the report is based in part on an account of events which this panel finds to be not credible, hence the report has little value. |
| [10] In Zapata v. Canada (Solicitor General) (1994), 82 F.T.R. 34, Justice Gibson stated: |
| The C.R.D.D. must give appropriate weight to professional opinion directly related to the applicant before it and to documentary evidence that, read together with the professional opinion, is corroborative of the position of the applicants or, put another way, that reflects the impact of the case specific professional opinion. |
It is not apparent to me that this statement is of assistance to the applicant in this case. The tribunal considered and dealt with the psychologist"s report. The tribunal accepts, at least to a certain extent, the same complaints of domestic abuse that the psychologist noted in her report. However, on the basis of the tribunal"s conclusions concerning discrepancies in the applicant"s evidence, it did not find that she had been raped or sexually assaulted between 1980-1993. In the words of the tribunal, the applicant "fabricated this aspect of her claim and steadily exaggerated over the prosecution of her claim from PIF to the final sitting of the hearing".
[11] The tribunal"s obligation was to receive and consider the psychologist report. The tribunal received evidence from the applicant over three days. It is not because the psychologist did not discredit the applicant"s allegations concerning "marital rape", as described in the report, that the tribunal itself could not do so. The tribunal"s treatment of the psychologist"s report was consistent with its appreciation of the applicant"s credibility. The decision by the tribunal to afford "little value" to the psychologist"s report is not a reviewable error.
| (ii) The tribunal"s finding concerning the harm and persecution |
[12] As I understand the applicant"s argument, the tribunal erred in failing to make any determination as to whether the domestic abuse suffered by the applicant constituted persecution. I respectfully disagree with this submission.
[13] In my view, the tribunal assessed the extent to which the applicant was subjected to domestic abuse. The tribunal"s finding fell short of the applicant"s claims because of the issue of her credibility. In any event, the tribunal made its finding on the extent of the abuse and concluded that the harm she suffered did not amount to persecution. In the tribunal"s words:
| Thus, the panel finds that the claimant was indeed subject to "occasional" mistreatment by Gounder between the time of their separation (in 1978-80) and her departure from Fiji in 1995 [sic] , but that her complaints to the police were taken seriously because they recognised she was no longer his spouse during this period. The claimant was not, nor was she perceived to be, a member of the particular social group, women in spousal relationships in Fiji. Although the police recognised her independent status and investigated and acted upon her complaints, Gounder"s offences evidently did not warrant court action. Therefore the panel concludes, on the balance of probabilities, that whatever harm she occasionally suffered during this period did not amount to persecution. In any case, she was not subjected to this harm for a Convention reason. Even she believes that Gounder"s motive was that he desperately wanted her to move out of the house on his farm. |
[14] In The Law of Refugee Status (Toronto: Butterworths, 1991), Professor James Hathaway discusses the meaning of persecution (at pp. 101, 104-5 and 108):
| The traditional Canadian formulation of the persecution standard focuses on the existence of persistent harassment by or with the knowledge of the authorities of the state of origin. It involves the "constant infliction of some mental or physical cruelty", "persistent or urgent efforts to harm or cause to suffer", and "pursuit with enmity", such as to provoke "an irrepressible fear of asking the authorities ... for protection". |
...
| Drawing on these basic precepts, persecution may be defined as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection. |
...
| The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard. [References omitted.] |
[15] The tribunal concluded that the extent of the harm, according to its findings, did not meet the test of persecution in the context of its assessment of her particular social group and the police response to her complaints. In my view, the tribunal understood that even "occasional" mistreatment and abuse can, in certain circumstances constitute persecution. This is clear from its reasons, supra paragraph 13, and from its subsequent consideration of the issue of state protection.
| (iii) The tribunal"s determination of the applicant"s particular social group |
[16] The tribunal found that the relevant particular social group in this case would be " "woman in spousal relationships in Fiji" (which include common-law marriage)". The applicant submits that this characterization is too narrow.
[17] The tribunal justified its scope of the particular social group in part on the basis of documentary evidence, submitted by the applicant, from the Fiji Women"s Rights Movement. This is how the tribunal interpreted the documentary evidence:
| The first source states, for instance, that there is widespread acceptance of partner abuse in Fiji and, "Although domestic violence comes under the crime of assault, sentences tend to be very lenient compared to other crimes." The second source cites statistics on the incidence and notes that, "Fiji police say that violence against women in the home is the most common form of assault." And, it goes on to say that, in 1993, husband-wife disputes accounted for 84.7% of all disputes reported to the police. |
[18] The tribunal was not required to define the particular social group as "women in Fiji" or "women subject to violence and abuse in Fiji".: Canada (Minister of Employment and Immigration) v. Mayers, [1993] 1 F.C. 154 (C.A.), at 158-9 and 168-9. It was open to the tribunal, on the basis of the documentary evidence, to conclude that women victims, not in a spousal or perceived spousal relationship, are not a particular social group in Fiji.
| (iv) The tribunal"s finding concerning state protection |
[19] In its reasons, the tribunal noted that the applicant "... called the police from a neighbour"s house about ten times over the years and each time they came, so she was able to return home, although Gounder was never charged and he was detained only once, in 1992, for several hours".
[20] After reiterating its concerns with respect to the applicant"s credibility, "except for occasional incidents of verbal and possibly minor physical abuse" between 1980 and 1993, the tribunal considered the issue of state protection and concluded as follows:
| However, even if the panel found her completely credible, the evidence of her own particular experience would refute the general documentary evidence of inadequate protection for the social group composed of women in spousal relationships in Fiji. She says that the police responded each time she called upon them. And contrary to her allegation (which the panel does not believe) that the police excused Gounder"s sexual assault of her, the more credible evidence (from her friend, Mr. Rao) that the police were fully aware of how her situation changed in the eyes of the law after the couple"s separation, when she was no longer his common-law wife. [References omitted.] |
[21] In Kadenko v. Canada (Solicitor General) (1996), 206 N.R. 272, the Court of Appeal set out the applicant"s burden of proof on the issue of state protection:
| When the state in question is a democratic state, as [in Israel], the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state"s institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. [Emphasis added.] |
[22] The record discloses very little, if any, information concerning the level of democracy in Fiji, with respect to its institutions of governance. The tribunal noted the applicant"s testimony of the police response to her complaints and the report of the assistant superintendent of the police force. The burden was on the applicant to bring clear and convincing evidence of the absence of state protection. At the very least, she had to establish more than her complaints to the police were unsuccessful. The record discloses no such evidence and the applicant"s final argument must also fail.
[23] Accordingly, despite the thorough submissions of the applicant"s counsel, this application for judicial review must be dismissed. Neither party suggested the certification of a serious question.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
April 16, 1999