Date: 20060725
Docket: IMM-6516-05
Citation: 2006 FC 914
Ottawa, Ontario, July 25, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
NASIMA AKHTER
REZWAN ABBAS
SHANEWAZ ABBAS
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] The Applicant, a citizen of Bangladesh, and her two dependant sons had their refugee claim denied by the Immigration and Refugee Board (Board). The basis of the refugee claim was the Applicant's contention that she feared persecution on the basis that she was a single woman, with children and who owned property. This is the judicial review of a decision to deny the refugee claim.
II. Facts
[2] The refugee claim was refused because the Board concluded that the Applicant had not met the burden of demonstrating, with sufficient credible or trustworthy evidence, that she and her sons would face a serious possibility of harm if they were returned to Bangladesh.
[3] The gravamen of the Applicant's claim was that she and her family were persecuted by "local hooligans, mastans [mafia] and other people"; all in relation to her ownership of land. After filing her PIF, the Applicant amended the PIF to include an incident where she claims that she was raped.
[4] The Board had serious doubts about the Applicant's credibility. The Board's decision is based on the number of deficiencies in the Applicant's evidence such that the presumption of truthfulness was rebutted. These deficiencies included:
· whether the Applicant was divorced or married particularly based on the Notice of Divorce filed to corroborate her status;
· the inauthenticity of other corroborative documents;
· inconsistencies in her evidence;
· her demeanour;
· lack of credible reason for delay in seeking refugee status; and
· failure to adduce evidence to support her section 97 claim.
The children's claim was dismissed as well because it was dependent on that of their mother's.
III. Issues
[5] The issues can be summarized as:
(a) Did the Board err in its treatment of documentary evidence filed by the Applicants?
(b) Did the Board err in aspects of its numerous adverse inferences as to the Applicants' credibility?
(c) Did the Board err in rejecting the minor Applicants' claims?
(d) Did the Board err in rejecting the minor's claims?
(e) Did the Board err in determining that the Applicants had not met the requirements of section 97 of the Act?
IV. Analysis
A. Standard of Review
[6] The acceptance or rejection of evidence is within the Board's jurisdiction, as is the probative value of documentary evidence. However the Board cannot ignore key evidence which goes to the core of the claim or fail to explain why such evidence is not accepted. (See Florea v. Canada (Minister of Employment and Immigration) (F.C.A.), [1993] F.C.J. No. 598 (QL); Menaker v. Canada(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1431 (QL)). The appropriate standard of review with respect to the facts of this case, including the documentary evidence, is patent unreasonableness.
[7] Issues of credibility have been consistently held in this Court to be subject to the patent unreasonableness standard (see Aguebor v. (Canada) Minister of Employment and Immigration (1993), 160 N.R. 315)). I see no reason to depart from this standard.
B. Documentary Evidence
[8] The Board put considerable emphasis on alleged discrepancies with the Notice of Divorce filed to show that the Applicant was a single woman. The Canadian High Commission in Bangladesh had reported that the document "appears to be false". The Respondent contends that this matter was not central to the decision, but it is evident that the Board saw this as a critical matter of credibility.
[9] The Applicant directly challenged the High Commission's report both with an explanation of why the conclusion was wrong and also filed further documents rebutting the conclusion and confirming the Applicant's contention that she was divorced.
[10] While there was evidence on which the Board could have questioned her credibility on this issue and hence question the authenticity of her new documents (she had filed documents both in Canada and the United States describing herself as married), the Board made no mention of the Applicant's explanation challenging the High Commission's conclusion nor did it refer to these new documents and explain why these documents were insufficient.
[11] An example of this failure is the evidence of a Reconciliation Order. The High Commission had cited that the absence of a Reconciliation Order as one of three critical factors confirming that the Applicant's divorce may not be true. The Reconciliation Order was ultimately filed with the Board yet no mention is made of the document.
[12] In my view, given the importance attached to the whole question of the Applicant's marital status, a cornerstone of her claim, as well as the adverse credibility conclusions both specifically and generally, it was patently unreasonable to fail to mention this evidence.
[13] The same might be said about the questions concerning the police reports. The Board had before it sufficient evidence that the police reports were questionable; such as that the stamps used were not the same as those employed by the police station. However, the Board reached conclusions about the number sequence of police reports and therefore the potential for false reports which were difficult to support. Given the Court's disposition of this judicial review, this is an area which warrants reconsideration as well.
C. Adverse Inferences
[14] As with the documentary evidence, there was some basis for the Board's conclusion about discrepancies and credibility. The difficulty is that there were some explanations advanced by the Applicant on key issues which do not appear to have been considered.
[15] Firstly, the Board found an inconsistency between the Applicant's statements that her father gave her land in 1991 and her evidence that she was in possession of the land from 1992 until 2002. The explanation given is that there is a difference between when land title passed to the Applicant and when she took physical possession of the land. The Board did not address this explanation yet it is a legal concept which is well-known and its rejection as an explanation deserved explanation.
[16] Secondly, the Board did not accept the Applicant's evidence that she did not disclose her rape to anyone other than relatives because further disclosure was inconsistent with a conservative Muslim society.
[17] Contrary to the Board's conclusions, there was no inconsistency in her evidence that her sister-in-law and brother were the only ones who knew about her rape and her statement that she only told "relatives".
[18] Further, the Board did not accept her concern that wider disclosure of her rape would subject her to humiliation from family members. In rejecting this explanation the Board said:
It is not reasonable to expect, especially among educated Canadian citizens and permanent residents, that siblings would humiliate a woman for being a victim of rape.
[19] The issue is not what educated Canadian citizens and permanent residents would do since the inquiry should have been what her siblings in Bangladesh might do. The Board failed to consider its Gender Guidelines and failed to view the response in light of her and her family's cultural norms. This is not to say that the Applicant must be believed but merely that the Board had to consider cultural norms as one aspect of the credibility analysis.
[20] Thirdly, the Board held that the Applicant made inconsistent statements about why she had not sold her properly in Bangladesh. The Board found that she had said that the mastan would take all her money and in her PIF said that she would have to pay a 50% commission to the mastan. The evidence discloses that the Applicant said neither of these things.
[21] The Court is aware that an assessment of the Applicant's overall credibility might support the Board's conclusion, it is not certain that that would be the case if these three findings had not been made.
D. Demeanour
[22] This is a matter wholly within the Board's jurisdiction and is entitled to considerable defence. I can find no basis for concluding that the finding is patently unreasonable.
E. Delay
[23] The Applicant's failure to seek protection in the United States is a relevant consideration. It was in no way the controlling factor in assessing the credibility of the claim. There is nothing unreasonable in the Board's consideration.
F. Minor Applicant's Claim
[24] The Applicant's reliance on Khan v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1187 (QL) is misplaced. In the present situation, while the 13 year old's claim had individual aspects, the minor Applicant's claim rested largely on the mother's claim. It was not an error to dismiss this claim in these circumstances.
G. Section 97 Claim
[25] The Applicant cannot succeed on this ground. It is apparent that the Board turned its mind to the section 97 claim. While the conclusions are brief, they do show that the Board considered section 97 not just in form but in substance.
IV. Conclusion
[26] In view of the Court's concern about some, but not all, of the Board's findings, this judicial review must be granted. The matter is to be referred back to a new panel for a new determination.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is granted, and the matter is to be referred back to a new panel for determination.
"Michael L. Phelan"
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