Date: 20040309
Docket: IMM-5010-03
Citation: 2004 FC 353
BETWEEN:
SIEW LAN THEIK
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Romance, Religion, and Regulation do not always blend well. Siew Lan Theik is a young Buddhist woman from Malaysia. She fell in love with and wanted to marry a young Muslim man, Slamat Bin Hussein. It is common ground that Malaysian law prohibits marriage between Muslim men and non-Muslims. She was put under pressure, with threats of violence, from various quarters to stop seeing her boyfriend or to convert to Islam. The situation did not go down very well with her parents either, who are devout Buddhists.
[2] She fled to Canada and asked to be conferred protection as a refugee within the meaning of the United Nations Convention relating to the status of refugees or otherwise as a person in need of protection, the whole as contemplated by part 2 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27. The Immigration and Refugee Board determined that she was neither a Convention refugee nor a person in need of protection. She was given leave to have that decision judicially reviewed in accordance with sections 72 and following of the Act and section 18.1 of the Federal Courts Act, R.S.C. 1985 c. F-7, as amended.
[3] In its decision, the panel noted that her problems began when she and her boyfriend were found in a room together. The Islamic religious department and the police raided the place. The police took her to their station. She was released after two hours of questioning. She was told not to see her boyfriend again.
[4] A few days later, four Malay men, including her boyfriend's brother, came to her parents' house where she lived, and said she had to convert to Islam in order to save her boyfriend from action from the religious department. In fact, he was later subjected to religious "re-indoctrination".
[5] She went into hiding. She tried without success to obtain a work permit for Singapore and then, on the advice of a friend, came to Canada.
[6] Since arriving here, she has been informed that her boyfriend's family is still looking for her as are the police.
[7] The Board took the position, as I do, that credibility is at the heart of the case. She was criticized because some of the details she gave during her interview were not found in her written Personal Information Form ("PIF"). For example, in her interview, she said that the four Malaysian men said they wanted to bring her to the mosque to convert her to Islam. In her PIF, she mentioned that she was called upon to convert to Islam but did not specifically mention that they were going to take her to the mosque. She said she did not know if they wanted to take her to the mosque or somewhere else. This was said to contradict her testimony. Not in my view.
[8] In her testimony, she mentioned a telephone conversation with her boyfriend after she had arrived in Canada in which he told her of his six month ordeal with the religious department. She was criticized for not mentioning this in her PIF amendments. Her explanation was that nobody told her she had to do so. The Board found this further diminished her credibility. Not in my view.
[9] According to the immigration officer's notes, she had not been detained by the police. However, she always said that she had been interviewed by them for two hours. There is obviously a play of words here about the meaning of "detention". She is not a jurist. Even a jurist, unless a criminal law specialist, might confuse detention, arrest and being "invited" by the police to be interviewed. The panel was clearly wrong in not accepting her explanation and in not believing her on the point.
[10] Her subjective fear is questioned because she had gone to Singapore looking for a work permit. When she failed to obtain one, she returned to Malaysia and then left for Canada. There is no evidence in the record that Singapore would be a suitable place for a Convention refugee, and there is nothing in the record to support the panel's unfavourable inference.
[11] She had a lawyer's letter indicating that she was being investigated under the Malaysian Penal Code. The panel says "If the panel was to believe this, then it fails to understand why there was no warrant out against her to arrest her". This is an astonishing leap into the unknown by the panel which gave no weight to the letter due to the lack of detail and the lawyer's failure to provide a copy of the charge or the police report. The letter said she was under investigation and did not say there was a warrant. It can hardly be said that the claimant is not credible because the letter is not long enough to suit the Board.
[12] I hold that the findings of fact, and the inferences drawn from fact, were patently unreasonable in many material respects, and that the Court must intervene (Aguebor v. Minister of Employment and Immigration, [1993] 160 N.R. 315 (F.C.A.).
[13] Judicial review is granted and her application is referred to another panel for a new hearing.
[14] Counsel for the applicant suggested, pursuant to section 74 of the Act, that there is a serious question of general importance to certify to the Federal Court of Appeal which is: in the absence of an affidavit or explicit declaration from the immigration officer certifying that his or her notes are exact and complete and were delivered to the applicant, can the Board set up the notes in contradiction of the information filled out by the applicant in her PIF?
[15] I see no need to certify this question in the context of this case. It is well established that the notes are receivable in evidence: Mongu v. Canada (Solicitor General) (1994), 86 F.T.R. 59. However, there are occasions when the weight given them has to be contrasted with the sworn testimony of an applicant. Notes of interview are the work product of the interviewer, not the interviewee, and may not be the best evidence.
"Sean Harrington"
Judge
Ottawa, Ontario
March 9, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5010-03
STYLE OF CAUSE: SIEW LAN THEIK
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: FEBRUARY 23, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: MARCH 9, 2004
APPEARANCES:
Michel Le Brun FOR APPLICANT
Sébastien Da Sylva FOR RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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