Muniandy v. Canada (Minister of Citizenship and Immigration), 2002 FCT 557

Date: 20020514

Docket: IMM-3584-01

Montréal, Quebec, May 14, 2002

Before: Tremblay-Lamer J.

BETWEEN:

SHASIKALA MUNIANDY

Plaintiff

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Defendant

ORDER

The application for judicial review is allowed. The matter is referred back for re-determination before a panel of different members.

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

Date: 20020515

Docket: IMM-3584-01

Neutral citation: 2002 FCT 557

BETWEEN:

SHASIKALA MUNIANDY

Plaintiff

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Defendant

REASONS FOR ORDER

TREMBLAY-LAMER J.

[1]        This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") that the plaintiff is not a Convention refugee.

[2]        The plaintiff is a citizen of Malaysia. She alleged that she had a well-founded fear of persecution on account of her race and religion.

[3]        On May 30, 1997 the plaintiff allegedly married one Suresh. At this point she learned for the first time that Suresh was a Moslem. She said she then signed an agreement to convert to Islam.

[4]        The plaintiff said she had not seen Suresh again after their marriage. On June 14, 1997 local religious authorities and other officers came to find her at her parents' home, telling her that as a Moslem she could not stay with her family, which was Hindu. The plaintiff said she was then taken to a rehabilitation centre in Perak where she was taught the rites of the Moslem religion. She said she was held at that centre for a year and a half, from June 1997 to December 1998.

[5]        Once she returned to her parents' home she said she met her second husband, one Viswanathan, a Hindu. Following that marriage the plaintiff and her husband alleged they were the victims of attacks and threats by neighbours. She said her husband had to be hospitalized for a week.

[6]        Following the attack on her husband on August 31, 2000 the family decided to send the husband and wife to Canada. The couple left 10 days later and arrived in Canada, where they claimed refugee status.

[7]        The Refugee Division dismissed the plaintiff's claim, concluding that she was not credible and that her conduct was inconsistent with a person who had a well-founded fear of persecution.

[8]        In the case at bar, the finding that she was not credible was based on facts surrounding the plaintiff's first marriage. The reasons for decision did not indicate whether the Refugee Division dismissed the plaintiff's testimony as a whole or simply her testimony regarding her marriage to Suresh. The observations of Marceau J.A. in Pour v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1282 (C.A.), apply in the case at bar:

The Board found certain elements in the claimant's account of the events which prompted him to flee his country to seek refuge elsewhere to be hard to believe, and it is the role of the Board to make that judgment. However, the Board did not say whether its finding that the claimant was not credible led it to reject completely the claimant's assertions as to the genuineness of his fear, let alone, it would appear, how it led to this overall rejection of his testimony. In our view, this is where the inadequacy of the reasons becomes apparent and makes it inevitable that this Court must intervene.

[9]        As regards the Refugee Division's conclusion on subjective fear, it assessed the plaintiff's conduct in connection with the first marriage, as appears from the following passage:

When asked to explain why she had not left Malaysia sooner, for example, in early 2000, when her passport was valid and before she met her current husband . . . [My emphasis]

[10]      Since the plaintiff maintained that she was harassed and threatened after she met her second husband, and that it was this fear which led her to leave Malaysia, it is not clear that the Refugee Division's conclusion would have been the same if it had believed the plaintiff about the second marriage.

[11]      For these reasons, for the application for judicial review is allowed. The matter is referred back for re-determination before a panel of different members.

Montréal, Quebec

May 15, 2002

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               IMM-3584-01

STYLE OF CAUSE:                                                     SHASIKALA MUNIANDY

Plaintiff

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Defendant

PLACE OF HEARING:                                                Montréal, Quebec

DATE OF HEARING:                                                  May 14, 2002

REASONS FOR ORDER BY:                                    TREMBLAY-LAMER J.

DATE OF REASONS:                                                  May 15, 2002

APPEARANCES:

Michel Le Brun                                                                  FOR THE PLAINTIFF

Thi My Dung Tran                                                             FOR THE DEFENDANT

SOLICITORS OF RECORD:

Michel Le Brun                                                                  FOR THE PLAINTIFF

Montréal, Quebec

Morris Rosenberg                                                              FOR THE DEFENDANT

Deputy Attorney General of Canada

Montréal, Quebec