Date:
20080502
Docket: IMM-4566-07
Citation: 2008 FC 567
Ottawa, Ontario, May 2, 2008
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
ABU JAFAR SAYEED
BIBI AMINA SAMAN
MOHAMMAD SAYEED
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of the decision by
the Refugee Protection Division of the Immigration and Refugee Board (the
panel) dated October 11, 2007. The panel determined that the applicants are not
Convention refugees or persons in need of protection under sections 96 and 97
of the Act.
ISSUES
[2]
Although
the parties did not propose any issues for determination, in my view, the
application raises the following issues:
(a) Did the panel err in making a
decision that breaches a principle of natural justice or procedural fairness?
(b) Did the panel err in
determining that the minor applicant is a citizen of Bangladesh and Mauritius?
(c) Did the panel err in finding
that the applicants failed to establish an objective fear of persecution, a
risk of torture, cruel and unusual treatment or punishment or a risk to their
lives?
(d) Did the panel err in
determining that there was an internal flight alternative available in Bangladesh?
(e) Did the panel err in finding
that the applicants’ behaviour was inconsistent with a subjective fear of
persecution?
FACTS
[3]
The male
applicant, Abu Jafar Sayeed, is a citizen of Bangladesh; the female applicant
is a citizen of Mauritius.
[4]
Both
applicants applied for refugee status in Canada because they feared persecution in their
respective countries. The principal applicants met in 1987 in Italy where they both had permanent resident
status. They lived together for two years before marrying. Mr. Sayeed wanted to
marry in his homeland, Bangladesh, but was unable to go
there until April 1991.
[5]
When the
applicants arrived in Bangladesh, Mr. Sayeed’s father, a
Muslim fundamentalist, opposed the marriage. Mr. Sayeed says that his father
threatened to kill him if he went ahead with the wedding.
[6]
The
applicants hid in the home of Mr. Sayeed’s maternal grandmother who helped them
organize a wedding ceremony in secret. In the meantime, practising Muslims in the
village obtained a fatwa, an order of a religious arbitration panel, sentencing
both applicants to be flogged and executed. To prevent this torture, the
grandmother sent both applicants to live with Mr. Sayeed’s sister in Dhaka.
[7]
On May 14,
1991, the applicants fled Bangladesh and returned to Italy.
[8]
In March
1992, Mrs. Saman travelled to Mauritius
to visit her family and to try to convince them to accept her marriage. She
learned that her family had promised her to another man, and after she told them
of her marriage, the family threatened to harm her. She stayed in a hotel
pending her return to Italy.
[9]
A son was
born to the applicants in Italy on October 9, 1993.
[10]
In May
1994, the applicants entered the United States on a visitor visa. They lived there without status until
May 2003 when they applied for refugee protection in Canada.
IMPUGNED DECISION
[11]
This case
was the subject of three hearings before the panel. The first took place on
July 15, 2004, before Mr. Arvanitakis. That hearing was adjourned
because the panel had erroneously reviewed documentary evidence relating to Mauritania, not Mauritius. The second hearing occurred on
September 20, 2005. This time, the presiding member adjourned the hearing
because there was no interpreter present who could communicate with Mrs. Sayeed
in Creole. That member stated that he believed that his colleague,
Mr. Arvanitakis, was seized of the case. Finally, the hearing proceeded in
its entirety before Ms. Paule Robitaille on August 14, 2007.
[12]
The
panel’s negative finding is based on the absence of objective fear, the
possibility of an internal flight alternative and the absence of subjective
fear.
[13]
The panel
determined that the narrative did not reveal a serious fear:
(a) The panel found that there was
no objective fear on the part of Mrs. Saman because her family made the threats
more than 16 years earlier. During her 1992 visit, her father did not act on
his threats, even though she was easy to find and vulnerable because she was
alone. The panel stated that there was no evidence that Mrs. Saman had a
well-founded fear of persecution should she return to Mauritius.
(b) The panel analyzed the
documentary evidence and noted the lack of violence on the part of families
when women do not obey their wishes.
(c) With respect to Mr. Sayeed,
the panel also found no objective fear. It noted that his father, who had made
threats during the visit in April 1991, had died and that the alleged risk had
therefore disappeared. The panel stated that Mr. Sayeed raised a new allegation
at the hearing, claiming that his life would be at risk because of his brothers
who would want to protect their inheritance. The panel did not believe the
inheritance story. It pointed out that Mr. Sayeed also indicated that his
father had excluded him from his will and that the brothers had divided the
money and properties between them.
(d) Nor did the panel believe that
the fundamentalist Muslims in Mr. Sayeed’s area would still be targeting him
sixteen years later.
[14]
With
respect to an internal flight alternative, the panel was of the view that Dhaka
or Rangpur were two places where the applicants could escape the risks posed by
the fundamentalist villagers.
[15]
The panel
gave three reasons why the applicants’ behaviour was inconsistent with a
serious fear of persecution:
(a) They married in Bangladesh and lived there for a month
before returning to Italy.
(b) They risked losing their
permanent resident status in Italy by living in the United States for almost ten years.
(c) They stayed there without
status but could have returned to Italy
at any time.
ANALYSIS
Standard of review
[16]
The
appropriate standard of review in this case is reasonableness. The Court should
treat findings of fact, particularly credibility findings, with great deference
(Aguebor
v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.); Dunsmuir
v. New
Brunswick, 2008
SCC 9, at paragraphs 55, 57, 62, and 64).
[17]
According
to the Supreme Court, the factors to be considered are justification for the
decision, its transparency and intelligibility. The outcomes must be defensible
in respect of the facts and the law (Dunsmuir, at paragraph 47).
Did
the panel err in making a decision that breaches a principle of natural justice
or procedural fairness?
[18]
The
applicants allege that the panel lacked jurisdiction because the hearing was
held before three different members. In my view, the question should be
restated as an issue of procedural fairness or natural justice. If the
applicants were prejudiced, the Court should return the matter for reconsideration.
[19]
The
applicants rely on the comments by the member who presided at the second
hearing on September 20, 2005:
But, my primary issue is that a case,
when a case is seized it’s either a de novo case and identified as such
or it’s… and Mr. Aranatakis (phonetic) has made no… he was the sitting member
before, made no mention that he was withdrawing form [sic] the claim or that he
did not intend to proceed. Basically he was saying that we have to adjourn
because Mauritius got confused with Mauritania. And the documents were not
properly filed.
. . .
So I am in a difficult situation, you
know. I think it’s fairly (inaudible) cases. My colleague has heard the
evidence, has certified the signature, has confirmed the contents of the PIF.
That’s evidence. So I don’t think I have much choice but to adjourn it and
also I will adjourn with the notation that you may be requesting a separate
interpreter for Madame.
[20]
The
applicants herein submit that Mr. Arvanitakis heard the evidence on July 15,
2004, in particular, the evidence as to the minor applicant’s citizenship,
which is in dispute. This is an excerpt from the transcript:
BY PRESIDING MEMBER (to Claimant, Mr.
Sayeed)
Q. And your son is a citizen of
which country?
A. Because presently he
is a citizen of both my country and my wife’s because I have registered his
name in the embassy with my passport and so did my wife.
Q. And they… Bangladesh accepts dual citizenship?
A. Yes. Yes, they have put it in
my passport.
BY PRESIDING MEMBER (to Claimant, Mrs.
Saman)
Q. And Mauritius too, they accept dual citizenship,
Madame?
A. Yes.
Q. Okay all right. So we have
established the country.
[21]
In my
view, the applicants’ right to procedural fairness was not breached in any way
by the change in members conducting the hearing. Contrary to what Mr. Lang said
(September 20, 2005), Mr. Arvanitakis did indeed discuss the fact that he
would probably not be reassigned to this case after the adjournment:
You will be notified in writing of the
next hearing. At the next sitting you do not have to bring your son. We are
satisfied that he is your son and he is here, unless, though… unless there is
another panel. I am not sure I will be… For caution sake you better bring him,
yes. I am sorry for that. There is a possibility I will be the panel, but in
case… but I might not be the panel.
[22]
The
hearing on August 14, 2007, was a de novo hearing. Evidence as to
the minor applicant’s citizenship was led before Ms. Paule Robitaille.
Therefore, the Court cannot accept the applicants’ argument.
[23]
There is
another reason to dismiss this argument. The applicants were represented
by counsel throughout and this issue was never raised at the hearings, which
amounts to an implied waiver: Kamara v. Canada (Minister of Citizenship and
Immigration),
2007 FC 448, at paragraph 26, [2007] F.C.J. No. 598:
… The jurisprudence of the Court is
clear; such issues dealing with procedural fairness must be raised at the
earliest opportunity. Here, no complaint was ever made. Her failure to object
at the hearing amounts to an implied waiver of any perceived breach of
procedural fairness or natural justice that may have occurred. See Restrepo
Benitez et al. v. M.C.I. 2006 FC 461 at paras. 220-221, 232 and 236, and Shimokawa
v. M.C.I., 2006 FC 445 at paras. 31-32 citing Geza v. M.C.I. 2006
FCA 124 at para. 66.
Did
the panel err in determining that the minor applicant is a citizen of
Bangladesh and Mauritius?
[24]
The
applicants submit that the panel erred in determining that the minor applicant is
a citizen of Bangladesh and Mauritius. They claim that the minor applicant is stateless. They
cite Pachkov v. Canada (Minister of Citizenship and
Immigration),
[1999] F.C.J. No. 29 (F.C.T.D.), at paragraph 28:
[28] By finding that the applicant was a Latvian
citizen, the Board made an unreasonable error in the assessment of the facts,
which cannot be justified in light of the evidence in the record and which led
it to impose on the applicant the burden of rebutting a presumption of Latvian
State protection although he is not a citizen of that country. In my view, that
error, whether it is termed an error of fact or of law, warrants the Court’s
intervention. On one hand, the decision is based on that premise and, on the
other hand, that error may have influenced the assessment of the record and the
applicant’s credibility. I am therefore not satisfied that were it not for that
error, the decision would have been the same.
[25]
The facts
in this case differ from those in the case cited above. At paragraph 19,
Mr. Justice Teitelbaum wrote:
[19] On the facts in the case at bar, the
applicant’s PIF states that he is not a Latvian citizen, and his testimony
shows that he is not a citizen of Latvia.
Furthermore, the applicant put in evidence a document issued by the Latvian
authorities certifying that Mr. Pachkov is not a Latvian citizen (applicant’s
record, page 98).
[26]
In the
case before us, there is no evidence that the minor applicant is stateless. On
the contrary, the applicants maintained throughout the process that he was a
citizen of Bangladesh and Mauritius. At the hearing on August 14,
2007, the questions about the minor applicant’s citizenship were intended to
establish whether he held dual citizenship in Bangladesh and Mauritius, and that he was not an Italian
citizen.
As for the principal claimant’s son,
Mohammad SAYEED, citizen of both Bangladesh and Mauritius, since he bases his claim on his parents’ claims and there was no
evidence presented related to his fear in particular, I have arrived at the
same conclusion for him too.
Did
the panel err in finding that the applicants failed to establish an objective
fear of persecution, a risk of torture,
cruel and unusual treatment or punishment or a risk to their lives?
[28]
The
applicants challenge the panel’s findings about the existence of an objective
fear relative to Mrs. Saman’s claim in Mauritius. They allege that the panel did not
consider the evidence in the amended PIF to the effect that the applicant’s
father had threatened her with death.
[29]
The panel
considered this issue, and I do not believe that the intervention of this Court
is warranted. At page 2, the panel wrote as follows:
… [Mrs. Saman] alleged in an amended PIF
that her father threatened her of death in 1993 after the birth of her son. She
fears that this threat is still alive today.
Based on what Mrs. Saman told the
tribunal, I cannot conclude that her life and the one of her son or husband (if
he were to accompany her) would be seriously at risk in Mauritius today.
[30]
The
applicants also submit that the panel erred in determining that it was their
marriage that had prompted the persecution. The applicants maintain that it was
the fact that they had lived together before marriage that led to the threats
and the fatwa. However, after reading the decision in its entirety, the Court
notes that this allegation was considered.
Did
the panel err in determining that there was an internal flight alternative
available in Bangladesh?
[31]
Claimants
bear the onus of establishing that there is no internal flight alternative
available in their country. Applicants must also prove that conditions exist
that would prevent them from relocating elsewhere in their country (Chorny
v. Canada (Minister of Citizenship and
Immigration), 2003
FC 999, [2003] F.C.J. No. 1263, at paragraph 8).
[32]
The
applicants herein are asking that the evidence be re-assessed. With respect,
the Court does not agree with them that an intervention is necessary.
Did
the panel err in finding that the applicants’ behaviour was inconsistent with a
subjective fear of persecution?
[33]
On this
point, the applicants claim that the panel assessed their behaviour
retroactively, without considering their intentions and state of mind at the
time they made the decision. They submit that they did not take any risks by
leaving Italy for the United States because they provided a
reasonable explanation. The fact that the panel rejected this explanation and
made an inference is not unreasonable, and it was open to the panel to do so.
[34]
It is
common ground that the panel can draw inferences from applicants’ behaviour (Mejia
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1087, [2006]
F.C.J. No. 1365; Manokeran v. Canada (Minister of Citizenship and
Immigration),
2006 FC 111, [2006] F.C.J. No. 146; Munoz v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1273; [2006] F.C.J. No. 1591).
[35]
The
parties did not submit a question for certification, and there is none in the
docket.
JUDGMENT
THE COURT ORDERS that the
application for judicial review is dismissed. There is no question to be
certified.
“Michel
Beaudry”
Certified true
translation
Mary Jo Egan, LLB
Email this Content