Date: 20061013
Docket: IMM-1231-06
Citation: 2006 FC 1205
Ottawa, Ontario, October 13, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JASMIN
AKTER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application is for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (the Board)
dated February 8, 2006, finding that the applicant was not credible and was
therefore neither a Convention refugee nor person in need of protection.
ISSUE
[2]
Did
the Board commit any reviewable error in its negative credibility findings?
[3]
For
the following reasons, the application shall be allowed.
BACKGROUND
[4]
The
applicant is a 30-year-old woman, citizen of Bangladesh. Her
estranged husband, as well as her parents and siblings reside in Bangladesh.
[5]
Along
with her father, the applicant participated in the country’s 2001 election
campaign on behalf of the Awami League (AL). In December 2001, Bangladesh
National Party (BNP) and Jamaat goons set fire to her father’s store, as a
result of their support of the opposition party, AL.
[6]
In
March 2002, she was promoted as executive member of her branch of the AL, responsible
for women labourers in the garment sector. During that same year, she rejected
the advances and marriage proposal of Humayun, a BNP goon who continued to
harass her. This harassment persisted even after her marriage to Ripon Hossain
on January 31, 2003. Humayun told her husband that he had intimate relations
with his wife, which led to different incidents of abuse at the hands of her
husband.
[7]
On
July 4, 2004, while her husband was out of the country, the applicant was
abducted by Humayun and three other men, blindfolded and taken to a house where
she was tortured and gang raped. She was found unconscious in a ditch and taken
to Mirpur
General Hospital where she
woke up. She was treated by Dr. Khaleda Akler and released on the third day,
July 7, 2004. Upon learning of what had happened to the applicant, her husband
told her father that she must not return to his home again.
[8]
The
applicant stayed at a friend’s house while her father made arrangements with an
agent to seek refuge in Canada.
[9]
The
applicant left Bangladesh on her birthday, August 6, 2004, and arrived in Canada on August
11, 2004, after spending four days in New York. On August 13, 2004,
she filed her claim for protection as a Convention refugee because she had a
well-founded fear of persecution from her husband and supporters of the
governing BNP for reasons of her membership, as a woman, in a particular social
group. She also feared persecution from supporters of the BNP because of her
political opinion, as an active member of the Bangladeshi opposition party, AL,
which she joined on August 15, 1999.
[10]
Her
claim for protection was rejected. It is that decision which forms the basis
of this application for judicial review.
DECISION UNDER REVIEW
[11]
The
Board’s decision was based solely on the applicant’s credibility. The Board
found that her demeanour betrayed her. She was not spontaneous in her
responses to the questions put to her. Rather she relied heavily on her
Personal Information Form (PIF) instead of giving a spontaneous recollection of
the facts as she alleged. Moreover, she was vague and there was no mention in
her PIF of some of the incidents she testified to having occurred in 2001.
Finally, the Board found that her lack of spontaneity in the manner in which
she answered the questions did not help her credibility. She also confused the
dates and sometimes she could not recall the dates in question.
[12]
The
applicant explained that she suffers from memory loss and cannot remember lots
of things after the incidents of July 4, 2004. However, the Board did not
accept her explanation.
[13]
The
Board also found that the supporting medical letter of certificate provided by
the applicant lacked in specifics. As a result, the Board gave no probative
value to the medical letter and doubted that she was gang raped. The Board
stated as follows:
[…] If the panel was to believe that the
letter was issued based on the medical records, as stated in the letter, then
the panel expected to see some specifics of the treatment provided during her
stay in the hospital until July 7, 2004, including the tests done to verify the
rape and tests ensuring the claimant did not or would not contract sexually
transmitted disease (STD), as she alleges to have been gang raped. The panel
does not understand why the letter would not mention any follow up at least to
monitor future pregnancy as a consequence. She said that her medical tests
taken did not show any of this even though her monthly cycle (period) had
stopped. The panel does not give any probative value to the letter due to lack
of corroboration, in general, with her testimony, as well as the letter itself
lacking in several specifics. The panel doubts her alleged rape.
[14]
Finally,
the Board considered the Chairperson’s Guidelines on Gender Related Claims.
However, the Board concluded that given the applicant’s lack of credibility,
the Guidelines were not applicable.
ANALYSIS
Standard of review
[15]
Where
questions of credibility are involved in assessing refugee claims, the standard
of review is patent unreasonableness. The Federal Court of Appeal in Aguebor v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 732 (F.C.A.) (QL) stated at paragraphs 2 to 4:
In his memorandum, counsel for the appellant
relied on the decision of this Court in Giron v. Minister of Employment and
Immigration [(1992), 143 N.R. 238 (F.C.A.).] in support of his argument
that a court which hears an application for judicial review may more easily
intervene where there is a finding of implausibility. Because
counsel are using Giron with increasing frequency, it appeared to us to
be useful to put it in its proper perspective.
It is correct, as the Court said in Giron,
that it may be easier to have a finding of implausibility reviewed where it
results from inferences than to have a finding of non-credibility reviewed
where it results from the conduct of the witness and from inconsistencies in
the testimony. The Court did not, in saying this, exclude the issue
of the plausibility of an account from the Board's field of expertise, nor did
it lay down a different test for intervention depending on whether the issue is
"plausibility" or "credibility".
There is no longer any doubt that the Refugee
Division, which is a specialized tribunal, has complete jurisdiction to
determine the plausibility of testimony: who is in a better position
than the Refugee Division to gauge the credibility of an account and to draw
the necessary inferences? As long as the inferences drawn by the tribunal are
not so unreasonable as to warrant our intervention, its findings are not open
to judicial review. In Giron, the Court merely observed that
in the area of plausibility, the unreasonableness of a decision may be more
palpable, and so more easily identifiable, since the account appears on the
face of the record. In our opinion, Giron in no way reduces
the burden that rests on an appellant, of showing that the inferences drawn by
the Refugee Division could not reasonably have been drawn. In this
case, the appellant has not discharged this burden.
Did the Board err when it found that the
applicant's evidence lacked credibility?
[16]
The
Board referred to several areas where it doubted the applicant’s evidence. Most
importantly, it found that she was not spontaneous and failed to mention dates.
While the Board was at liberty to find that such behaviour did not support her
credibility, it erred in using these signs of demeanour as the basis for
doubting the applicant’s evidence including that she had been gang-raped.
[17]
There
is a limited jurisprudence relating to refugee applicants who allege being
victim of gang rape. However, these cases all reflect a certain demeanour
marked by lethargy, lack of memory, reluctance to relive the incidents through
testimony and memory loss. These are all symptoms shown by the applicant and
which form the basis for the Boards credibility findings. (Annan v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 1038 (F.C.T.D.)
(QL); Sivayoganathan v. Canada (Minister of
Citizenship and Immigration, [1994] F.C.J. No. 1653 (F.C.T.D.) (QL); Schopova
v. Canada (Minister of Citizenship and Immigration), 2003 FC 904, [2003]
F.C.J. No. 1155 (F.C.) (QL); and Sivalingham v. Canada (Minister of
Citizenship and Immigration, [1994] F.C.J. No. 1554 (F.C.T.D.) (QL)).
[18]
Based
on the jurisprudence on this subject matter, the Board erred in rejecting the
applicant’s testimony based on her behaviour and it was therefore unreasonable
for the Board to draw a hasty conclusion while ignoring the unusual
circumstances upon which the applicant allegedly sought refuge in Canada.
[19]
As
is noted by counsel for the applicant, following James C. Hathaway in The
Law of Refugee Status, (Markham: Butterworths, 1991) at page 72, “persons
suffering from genuine, post-traumatic anxiety are often unable adequately to
recall information, much less relate it in an articulate manner”.
[20]
Moreover,
a review of the transcripts of the hearing reveals that at the point at which
the applicant was been questioned about the events of July 4, 2004, the Board
intervene as follows (page 24 of the Minutes of a Hearing on May 31, 2005):
BY R.P.O. (TO Claimant)
Q.
So
continue on the story you were telling us, on what happened on the 4th
of July, 2004.
A.
So they beat
me up from the street. For a little while, they drive, drove me and stopped,
and then they took me into a room. And then, they opened the blindfold and
showed me a gun, a pistol, and said “If you scream, I’ll kill you.” And after
that, they asked me to undress.
BY
PRESIDING MEMBER (to Claimant)
Q.
How many
were they?
A.
Four.
Q.
So all
four of them misbehaved with you? Yes?
A.
One person
who had a video camera, who turned on the video
camera. They were creating pressure on
me to undress.
Q.
Okay. We
don’t want to go through all that. Okay. They were four?
A.
Yes.
Q.
There were
four men.
A.
Yes.
Q.
The
question was if all four of them misbehaved with you?
A.
Three
persons.
BY R.P.O. (to Claimant)
Q.
And how
did you get out of that house?
A.
I don’t
know actually, because the time I get out from that room, I didn’t have my
sense.
BY PRESIDING MEMBER (to Claimant)
Q.
Somebody
helped you, or … When you came to your senses, what do you remember?
A.
When I
regained my senses, then I saw I’m in the hospital.
Q.
Somebody
told you later on how they found you and brought you to the hospital?
A.
Yes, later
I was told.
Q.
Okay.
Tell us what you were told?
A. A guard who rescued
me from the street and then who brought me to the hospital.
[21]
This
passage of the Board’s questions to the applicant is revealing. When the
applicant sought to go into detail of what had transpired, the Board said
“Okay. We don’t want to go through all that. Okay…”
[22]
While
the Board may have intended to show sensitivity by shutting off the applicant’s
testimony in this way, it is not reasonable for the Board to refuse to hear the
details of the applicant’s story, gruesome and distressing as this might be and
then turn around and say that the applicant is not credible and only to
conclude as follows:
The panel doubts her alleged rape.
[23]
The
applicant’s testimony is not contradicted. The tribunal had a medical report
regarding the applicant’s hospitalization from July 4 to 7, 2004, which
corroborates her testimony that she was tortured and raped. There is no
apparent mistake in the medical report. The tribunal made no finding that the
medial report was a forged document. It can be read at paragraph 2 and 3 of the
medical report:
The examining Doctor also found that
there was four circumscribed burn marks on her back, which seemed to me by
cigarette, of about 7x8mm in diameter and of skin depth.
The doctor based on the examination and
the Patient’s statement confirmed that she was tortured and raped. After proper
treatment of her womb she recovered and was discharged on 7th July 2004.
[24]
For
this reason alone, the Board erred by reaching its decision on an erroneous
finding of fact and made a perverse and capricious conclusion without regard to
the material before it contrary to section 18.1(4)(d) of the Federal
Courts Act, R.S.C.
1985, ch. F-7.
[25]
The Board unfairly assessed the applicant’s testimony and failed
to consider relevant evidence when it concluded that she was not raped.
[26]
The parties did not
submit questions for certification.
JUDGMENT
THIS COURT ORDERS that:
1. The application for
judicial review is allowed;
2. The matter is sent
back for redetermination by a newly constituted panel.
3. No question is
certified.
“Michel
Beaudry”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-1231-06
STYLE OF
CAUSE: JASMIN
AKTER
and
THE MINISTER OF
CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal,
Quebec
DATE OF HEARING: October 4, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: October 13, 2006
APPEARANCES:
Jeffrey Platt FOR
APPLICANT
Alexandre Tavadian FOR
RESPONDENT
SOLICITORS OF RECORD:
Jeffrey Platt FOR
APPLICANT
Montreal, Quebec
John H. Sims, Q.C. FOR
RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec
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