Date: 20071115
Docket: IMM-4315-07
Citation: 2007 FC 1199
Ottawa, Ontario, November 15, 2007
PRESENT: The Honourable Mr. Justice Orville Frenette
BETWEEN:
BIJOYA
CHAKRABARTY
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
UPON motion dated November 15, 2007 for
an order granting the Applicant a stay against her removal scheduled for November
16, 2007;
AND UPON considering the written
material submitted by the parties and by having heard counsels’ oral
submissions on November 15, 2007.
The facts
The Applicant is a citizen of Bangladesh. She is 55 years old,
married, mother of two daughters who reside in Canada and one is a Canadian citizen.
The Applicant arrived in Canada on March 31st
2005, with a valid visitor’s Visa. On April 22nd 2005, she sought
refugee status and protection, based upon religious persecution in Bangladesh, but her request was denied
by the Refugee Protection Division.
She sought a judicial review of this decision
but her application was not authorized. She then applied for a Pre-Removal Risk
Assessment (PRRA) decision, but her request was refused on August 30, 2007. She
then applied for a judicial review of that decision, which has not yet been
authorized.
The Applicant declared that she and her husband,
practicing the Hindu Religion in a Country where 88% of the population belong
to the Muslim Faith; they were victims of threats, physical violence by members
of the Bangladesh Nationalist Party and Jamat-e-Islami Terrorists.
Her husband laid a complaint with the local
police about those threats but no action was taken. She recalled that on one
occasion, the local BNP Leader came to their house telling them to leave their
house within 48 hours, otherwise they would be burned to death and were told to
leave Bangladesh. She fled to Canada in 2005 and her husband went
into hiding.
During the hearings of the RPD and PRRA, she
described her real fear that she would be raped and/or killed if she returned
to Bangladesh. Documents emanating from
reputable organizations describe the state of violence and acts against the
religious minorities in Bangladesh.
On January 11th 2007, the Government
declared a state of emergency because of violence in the Country.
The Standard of review
It is well known in law that on questions
of credibility, plausibility and the weight to be given to evidence are largely
questions of fact and are therefore within the jurisdiction and the expertise
of the PRRA officer.
Therefore, a high level of deference must be granted
to the decisions of the PRRA officer on the basis of such findings of fact.
The Court will not intervene in the PRRA
officer’s assessment of these matters, unless it is patently unreasonable. It
is only reviewable if it is unsupported by the evidence or is capricious or
perverse: Aguebor v. Minister of Employment & Immigration
(1993), 160 N.R. 315; Harb v. Canada (Minister of
Citizenship and Immigration), 2003 FCA 39, [2003] F.C.J. No. 108.
To succeed, an Applicant
must demonstrate that the findings are irrational or illogical and cannot be inferred
from the evidence: Voice Construction Ltd. v. Construction and General
Workers’ Union, Local 92, 2004 SCC 23, [2004] S.C.J. No. 2.
The law
on a stay motion
The
Applicant must satisfy the tripartite
test set out in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.)
and RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, namely:
1.
Whether
there is a serious question to be considered;
2.
Whether
the litigant, would, unless the interlocutory injunction was granted, suffer
irreparable harm;
3.
The
balance of inconvenience, in terms of which of the two parties would suffer the
greater harm from the granting or the refusal of an interlocutory injunction
pending a decision on the merits.
1. Serious issue
a) Documentation
The Applicant bases her contestation of the PRRA
Officer’s decision on the fact that she did not give sufficient weight to the
documentation submitted by her which supported her fear. The Respondent answer’s
that the PRRA Officer did consider all the documentation, some of which showed
that extremist BNP members were responsible for acts of violence against Hindus
in Bangladesh.
The PRRA officer held that these documentation
reports were general in nature and did not address the Applicant’s particular situation.
The PRRA officer also attached little importance to letters from the Applicant’s
two daughters, because the events had been previously found not credible by two
IRB. However, the RPD did not have the letters when he reached his decision.
The PRRA officer did write that the Hindus were a minority of 10% in Bangladesh, which 88% practised the
Islamic Religion.
The PRRA officer considered the letters written
by the Applicant’s daughters but he did not attach any weigh because of their
interest in the matter. The PRRA officer wrote that none of these documents showed
that the Applicant faced a personalized risk if she returned to Bangladesh. Furthermore, the information
contained in those letters was not “new”, and was solely based upon opinions,
without details to support the source of such information.
The Applicant contends that she and her husband
have been subjected to threats of harm and death if she returns to Bangladesh. There is documentation which
supports the fact of violence and the letters of their daughters and others reveals
personalized risk.
b) State Protection
The Applicant alleges fear of harm for herself
and her husband is she returns to Bangladesh.
The PRRA officer recognized the violence which the Hindus face in Bangladesh. The Respondent counters that
she has not provided evidence that the Bangladesh Government was not presumed
capable of protecting its citizens.
However, the Applicant reported that her husband
has tried to obtain Police protection, but in vain.
c) New Evidence
The Applicant argues that the PRRA officer
disregarded “new evidence”, i.e. the two letters from her daughters which
confirms her risks is she returns to Bangladesh, declaring them to be “self
serving”, with references to family information. He also excluded the letters
written by Hindu religious organizations.
I do not wish to pre-judge a future assessment
of this matter if the judicial review sought proceeds, and I realize that the
questions of credibility, plausibility and weigh are in the domain of the PRRA
officer but I believe that the Applicant has raised a serious issue to be
considered. The PRRA officer stated:
[T]he assessment reaffirms the existence
of violence to which members of the Hindu minority in Bangladesh may occasionally be subject […]
[…]
[…] The objective situation in Bangladesh confirms the existence of
violence targeting religious minorities. […]
If one joins these facts to the fears and risks
confronting the Applicant, it is necessary to appreciate fully the “other or
new evidence” of personalized risks, such as the daughters’ letters and other
information.
I believe the PRRA officer could not fairly
reach a just decision, by simply excluding such evidence. In a case which concerned
similar problems, my colleague Justice Martineau allowed a judicial review of a
decision of PRRA office because the latter had not properly assessed evidence
of personalized risk: see Fi v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1125, [2006] F.C.J. No. 1401.
In the above case, the PRRA officer had given no
credibility to a letter from the mayor of Bert –Lid written on Palestinian National
Authority (PNA) letterhead confirming the Applicant’s fears.
On another point, uncontradicted oral testimony cannot
be simply discarded without valid reasons or unless it is patently
unbelievable: see Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
In summary, there are serious issues to be
considered.
2. Irreparable Harm
The PRRA decision confirms the existence in Bangladesh of violence targeting
religious minorities. The Applicant and her husband are part of the minority
Hindu Faith.
The country is in a state of emergency since
January 11, 2007. The Applicant fears for her safety and life is she returns to
Bangladesh. The evidence adduced
confirms her fears of the probability of suffering irreparable harm.
3. Balance of inconvenience
It is in the public interest to enforce
removal orders as soon as possible (Refugee Protection Act, S.C. 2001,
C.27, s. 48(2)). However, a delay would not be against public interest in this
case. The Applicant would suffer serious consequences if a delay was not
granted. The balance of inconvenience weighs in her favour.
ORDER
THIS COURT grants the application for a
stay of removal scheduled for November 16th 2007, until the Applicant’s
motion on leave and judicial review of the PRRA decision is finally determined.
"Orville
Frenette"
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