Date: 20060818
Docket: IMM-5964-05
Citation: 2006 FC 1001
Ottawa, Ontario, August 18, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
VICTOR ROZARIO
EVA MARIA ROZARIO
and
RAJ CLEMENT ROZARIO
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Victor
Rozario, his wife Eva Maria, and their son Raj Clement are Christians from Bangladesh.
They claim status as Convention refugees and persons in need of protection.
They testified before the Refugee Protection Division of the Immigration and
Refugee Board (Board) that they had experienced persecution in Bangladesh
because of their religious identity, and that they fear that members of a
fundamentalist Islamic group will kill them if they return to Bangladesh.
[2] The
Board accepted that the Rozarios were Christians from Bangladesh, but did not
believe their evidence about what had happened to them in Bangladesh. The
Board also found that after they left Bangladesh their failure to claim asylum
in Bermuda was inconsistent with having a genuine, subjective fear of
persecution. In the Board’s view, the Rozarios are economic migrants and their
claim for protection was dismissed.
[3] On
this application for judicial review of that decision, the Rozarios argue that
the Board ignored evidence when it found that they face mere discrimination as
Christians in Bangladesh and erred when it drew a negative inference from their
failure to claim refugee status in Bermuda. For the reasons that follow, I
find that the Board did not find that the Rozarios face mere discrimination in Bangladesh
and so did not err as alleged. In the face of valid finding that there was no
objective basis to their claim, any error with respect to the existence of a
subjective fear of persecution was not material to the decision.
[4] To
argue that the Board found that they face discrimination and not persecution,
the Rozarios point to the following passage in the Board’s reasons:
[…] While the 2004
International Religious Freedom Report records increasing discrimination by
the majority Muslim toward minority religions since the election of the BNP
government in 2001, in particular the Hindu community which traditionally
supports the opposition Awami League, it describes relations between the religious
communities as “generally amicable”. Converts to Christianity from Islam would
be at risk but this is not the situation facing the claimants. [footnotes
omitted]
[5] On
a fair reading of this passage and with respect to the whole of the Board’s
reasons I do not agree that the Board found that what is being experienced by
religious minorities in Bangladesh is discrimination. Rather, the Board quoted
from an article in evidence before it which spoke of discrimination, and went
on to conclude that the objective documentary evidence was inconsistent with
the testimony of the Rozarios.
[6] Since
the Rozarios had established that they were Christians from Bangladesh,
the Board was obliged to consider, and did consider, whether the documentary
evidence established that similarly situated Christians in Bangladesh face
persecution. On the basis of the documentary evidence before the Board, it was
reasonably open to the Board to find that the evidence by itself did not
support a claim of persecution on account of religious identity. I have not
been persuaded that in so concluding the Board ignored evidence or engaged in a
cursory or highly selective review of the documentary evidence.
[7] As
noted above, the finding that the claim to protection was not objectively
well-founded was fatal to the application because the “well-founded fear”
contemplated in the definition of Convention refugee requires an applicant to
establish both an objective and subjective fear of persecution. It is, therefore,
not necessary for me to consider if the Board erred in drawing a negative
inference from the failure of the Rozarios to claim asylum in Bermuda. While
it is acknowledged that Bermuda is not a signatory to the United Nations
Convention Relating to the Status of Refugees (Convention), on the record
is not clear what the effect at law is of Bermuda’s status as an overseas
territory of the United Kingdom (a signatory to the Convention).
[8] For
these reasons, the application for judicial review will be dismissed.
[9] For
completeness, I note that in their further memorandum of argument the Rozarios
raised two new issues: whether the Board’s credibly findings were perverse or
capricious and whether there was a breach of procedural fairness because of the
Board’s conduct in questioning the principal applicant first, as contemplated
by the Chairperson’s Guideline 7. The credibility issue was abandoned
during oral argument, and the argument based upon reverse order questioning was
withdrawn.
[10] Counsel
posed no question for certification and I am satisfied that no question arises
on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
FEDERAL COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: IMM-5964-05
STYLE OF CAUSE: VICTOR
ROZARIO ET AL.
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: JULY 20, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: AUGUST 18, 2006
APPEARANCES:
DOUGLAS LEHRER FOR
THE APPLICANTS
A. LEENA JAAKKIMAINEN FOR
THE RESPONDENT
SOLICITORS OF RECORD:
VANDERVENNEN LEHRER FOR
THE APPLICANTS
BARRISTERS AND SOLICITORS
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
Email this Content