Date: 20010216
Docket: IMM-361-00
Citation: 2001 FCT 89
BETWEEN:
PAWEN KAUR KHALON
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX, J.
A - Introduction
[1] Pawen Kaur Khalon (the applicant), a 21 year old Sikh woman from Punjab India, challenges by way of judicial review the December 23, 1999 decision of the Refugee Division of the Immigration and Refugee Board (the tribunal) rejecting her claim for refugee status on the grounds of race, religion and membership in a particular social group: a woman in the particular circumstance of her situation i.e. having been arrested and on a police list on account of her relationship with a Sikh militant.
[2] The applicant argues the tribunal did not consider her Convention ground of membership in a particular social group: gender.
[3] The tribunal framed, in its decision, her claim in terms of "(imputed) political opinion because of her alleged association with an active member of the All India Sikh Students Federation (AISSF) who was also suspected by the police of being a member of the Khalistan Commando Force".
[4] The tribunal rejected the applicant's claim finding her not to be a credible witness "regarding her relationship with Manjit Singh which is the foundation for her claim".
[5] The tribunal did not believe her testimony that she fell in love with Manjit Singh in college, had been arrested in September of 1994 walking to class with him and threatened by the police with sexual assault if she did not help them in their interrogation of him.
[6] The applicant had also testified that after Manjit Singh dropped out of college in April of 1996 she did not see him again until October 1997 when he left a note at her family home inviting her to flee with him to the United States or Canada (where her sister lived in Surrey). The applicant testified they travelled to Seattle, stayed six weeks, broke up because Manjit Singh wanted to renew his activities with the AISSF. He left her. She was then driven to Canada by the agent Manjit Singh had hired.
[7] The Tribunal concluded:
| "Considering all of the evidence, the Refugee Division is of the opinion that the claimant has fabricated her relationship with the putative AISSF member, Manjit Singh. Since her refugee claim depends entirely on her alleged association with this man it follows there is no credible evidence to support her claim" |
| Since the credibility findings above are determinative of the claim, there is no need to deal with the other identified issues. |
B - Analysis
[8] Counsel for the applicant did not seriously challenge the credibility findings made by the tribunal to the effect her relationship with Manjit Singh was a fabrication i.e. it never happened.
[9] Rather, his attack was on the tribunal's failure to consider her claim of a well founded fear of persecution by reason of her gender despite the fact such ground had been clearly identified in Section 10 of her PIF's addendum and despite the fact her PIF and her testimony provided evidence of such persecution because she was a woman. She wrote in her PIF "the maltreatment that I suffered with the police detention, experiences of interrogation and physical torture left me humiliated, dejected and frightened. I felt a great deal of personal shame and I feel that I have suffered because I am a woman in Indian society".
[10] I am prepared to accept, as a matter of refugee law, gender can constitute membership in a particular social group. Justice La Forest in Canada (Attorney General v. Ward), [1993] 2 S.C.R. 689 at 739 mentioned gender as an example of the first of three categories encompassed by the notion of "particular social group". See also the recent House of Lords judgment in Islam (A.P.) v. Secretary of State [1999] H.L.J. No 16.
[11] As I see it the real issue before me is whether, in substance, the applicant advanced a gender claim as an independent ground for refugee status.
[12] I do not accept the applicant's contention that simply because there was a mention of gender as a ground for a refugee claim, that claim was raised at the hearing of her claim. To accept such a proposition would be to recognize form over substance.
[13] After examining the applicant's PIF, reviewing the transcript of her testimony before the tribunal and considering the arguments put to the tribunal I am satisfied the applicant did not pursue gender as a independent ground of her refugee claim.
[14] It is quite apparent to me from her PIF, and, as the tribunal found, the centerpiece of her claim, read as a whole, related to her fear of persecution imputed on account of her association with Manjit Singh, an alleged Sikh militant. The gender references in her PIF, when viewed in the context of the PIF itself and her testimony cannot be interpreted as evidence of the pursuit of an independent claim but evidence related to the consequences (her arrest) of her alleged association with Manjit Singh which the tribunal said was fabricated.
[15] A reading of her testimony confirms this view. Specifically, when asked about her fear of returning to India, the applicant did not mention persecution on account of gender but rather persecution by the police, by the AISSF and fear of Manjit Singh himself.
[16] Finally, during his questioning of her, her counsel did not at all focus on evidence related to her fear of persecution in India as a woman who had an affair with a suspected militant. He also made no argument on the point.
Disposition
[17] For all of these reasons, this judicial review application is dismissed. No certified question was proposed.
(Sgd.) "F. Lemieux"
Judge
February 16, 2001
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: IMM-361-00 |
| STYLE OF CAUSE: Pawen Kaur Khalon |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: February 12, 2001 |
| REASONS FOR ORDER OF LEMIEUX, J. |
| DATED: February 16, 2001 |
APPEARANCES:
| Mr. Paul Sandhu For the Applicant |
| Ms. Emilia Pech For the Respondent |
SOLICITORS OF RECORD:
Paul Sandhu
Barrister and Solicitor
| Surrey, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |