Khan v. Canada (Minister of Citizenship and Immigration), docket IMM-3428-97

Date: 19980821

Docket: IMM-3428-97

     Applicants

     Respondent

     REASONS for ORDER and ORDER

DENAULT J:

[1]      The applicants seek judicial review of a decision of the Convention Refugee Determination Division ("the Tribunal") in which it was determined that the main applicant Syeda Razia Begum, her husband Himmotur Rahman Khan, and their two children, all citizens of Bangladesh, are not Convention Refugees as defined in subsection 2(1) of the Immigration Act.

[2]      It was found that the principal applicant and her husband were not credible on the major and pertinent elements of proof. The Tribunal then enumerated five factors for dismissing the applicants' claims on account of non credibility. In order to dispose of this application, it will be sufficient for this Court to consider but two of these factors.

[3]      As a first ground for finding the principal claimant not to be credible, the Tribunal determined that, insofar as she was working under the pen name of Rusama (Syeda Rusama Razia) as a former newscaster for the Bangladesh Television and Radio Corporation, "the different permutations and combination of the name raise[d] concerns for the Panel". The Tribunal also disposed of the claim of the principal claimant's husband, who had his own story of persecution, in the following way: "The incidents related by the principal claimant's husband were insufficient to support a positive determination, given his wife's lack of credibility."

[4]      I am of the view that this application must succeed, and consequently, the decision of the Tribunal dated July 21, 1997, be set aside.

[5]      With respect to the identity of the principal claimant, the file contains documents including a birth certificate, high school and university certificates whose authenticity was unchallenged, and numerous newspaper articles containing her pen name as well as her photo. Moreover, the principal claimant indicated in her personal information form her real name as well as her pen name (page 38 of the Tribunal Record). Even the Respondent admits (paragraph 27 of the Respondent's Memorandum) that the Tribunal's concerns as to this question do not reflect the documentary evidence filed at the hearing. I am of the view that the Tribunal's finding on this point was made in a capricious manner and without regard for the material before it.

[6]      As to the dismissal of Mr. Khan's claim in a summary way because his wife's lack of credibility, this conclusion was reached by the Tribunal without having given any reasons. In Mehterian v. Canada (Minister of Employment and Immigration), June 17, 1992, A-717-90, the Federal Court of Appeal set the test to be met by the Refugee Division under paragraph 69.1(11) of the Act which requires that written reasons be given on a claim where the decision is against the person making the claim: these reasons must be sufficiently clear, precise and intelligible so that the claimant may know why his claim has failed. The dismissal of Mr. Khan's claim on account of non credibility of his wife, when he had his own allegations of persecution, does not meet that test and constitutes a reviewable error.

[7]      For these reasons, the application is granted, the Refugee Division's decision of July 21, 1997 is set aside and the matter is referred back for reconsideration by a newly constituted panel. No serious question of general importance is involved in this case for certification and consideration by the Court of Appeal pursuant to section 83 of the Immigration Act.

     J.F.C.C.