Date: 20011105
Docket: IMM-2626-00
Neutral citation: 2001 FCT 1203
BETWEEN:
JAHAN FERDOSI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of, and an order setting aside, a decision dated May 4, 2000, of the Convention Refugee Determination Division ("CRDD" or the "panel") of the Immigration and Refugee Board whereby the applicant was found not to be a Convention refugee.
Facts
[2] The applicant, Ms. Jahan Ferdosi, is a citizen of Bangladesh, born in Dhaka on February 15, 1970. She sought Convention refugee status on the basis of her fear of persecution because of her membership in a particular social group, namely women who fear persecution from their husbands in the absence of state protection, should she be returned to Bangladesh.
[3] While studying at the University of Dhaka, the applicant fell in love with a man whom her parents refused to allow her to marry. Instead, she was pressured into an arranged marriage with her husband on March 2, 1998.
[4] On the day of her marriage, the applicant was sexually assaulted by her husband. This act, the applicant alleges, was subsequently repeated frequently. Soon after her marriage, the applicant's husband demanded that she ask her father for an increased dowry, in the form of a television set and antenna. When she refused, she was beaten, but did not tell anyone. His abuse of her continued throughout the marriage.
[5] In July 1998, the applicant was again beaten by her husband when she refused to give him her gold ornaments. Subsequent to this, he forcibly took the ornaments.
[6] In mid-September 1998, the applicant asked her husband for her share of the dowry money he had received. His response to this request was a severe beating and a demand that she obtain further dowry to be used for her husband's business. Thereafter, the applicant left the home of her husband and went to her parents, informing them of her situation. On the following day the applicant's husband contacted her at the home of her parents and threatened to kill her if she did not return with more money from her father.
[7] The applicant then filed a complaint with the police and that complaint was supported by her father. She was informed the police had spoken to her husband, but had taken no other action as they deemed the matter to be a domestic dispute. On receiving no effective assistance from police, the applicant filed a complaint with the Bangladesh Women Affairs Directorate of the Bangladesh government. Subsequently the applicant's husband again threatened to kill her for he considered her complaints were damaging his reputation.
[8] In October 1998, the applicant again complained to the authorities. She was told they would look into the matter, but that they did not have the resources to address all the complaints they received. Later, the applicant's husband again contacted her and informed her that he would kill her within the week. As a result of this threat, the applicant fled to the home of a relative in Dhaka. She applied for a passport. When her application was denied, her father arranged for a flight out of Bangladesh with the assistance of a broker. Prior to her departure from Bangladesh, the home of the applicant's parents was raided by her husband and several "goons" in an unsuccessful attempt to find her.
[9] At the hearing of her refugee claim, the CRDD determined that the applicant's testimony was not credible, in part because she was found to be evasive in her testimony. The panel denied her claim, holding that she was not a Convention refugee, as defined in the Immigration Act, R.S.C. 1985, c. I-2, as amended.
Issues
[10] The applicant raises two issues:
1) that she was denied a fair hearing by the apparent bias of a member of the panel; and
2) that the reasons of the panel, in finding her evidence not credible, were based on conclusions not supported by the evidence, or conclusions that had no nexus to the ultimate issues for determination of the panel.
[11] For the applicant it is submitted that aggressive questioning by a CRDD member, without evident appropriate respect for her situation as an abused woman, speaking and listening through an interpreter, created a reasonable apprehension of bias on the part of the panel. In particular, counsel refers to two passages in the transcript of the hearing before the panel, where the member, dissatisfied with the applicant's answer to certain questions, commented that the answer was not credible. In one situation the panel member said:
Well, maybe you'd like to say something more, because just (sic) that is not credible. So its up to you. You're here to defend your case, but so far it doesn't stand.
Again, when the applicant indicated she did not know the name of her husband's or her father-in-law's business, the panel member commented:
I have much difficulty in believing.
[12] Reading the transcript one has a sense that at times the questioning by the panel members was somewhat aggressive, but in my opinion a reasonable person, knowledgeable of the applicant's claim and the responsibilities of the panel, would not conclude that the panel's conduct and questioning raised a reasonable apprehension of bias. The test set out in [1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board, [1978] 1 S.C.R. 369 at 394, is not here met.
[13] The basic reason for the panel's rejection of the applicant's claim was because it found the claimant generally lacked credibility because of "various contradictions, omissions and implausibilities".
[14] The decision notes that the applicant was not spontaneous, but was very vague and ambiguous in her testimony. No examples other than those that follow are set out in the panel's decision. There are passages in the transcript where the applicant did not answer questions or make further comment when invited to do so but it is difficult to assess the panel's appraisal that she was "vague and ambiguous" apart from these examples. The transcript does demonstrate there were serious difficulties with translation services through which the applicant testified and listened to questions at the hearing.
[15] The specific examples referred to in the panel's decision were, first, that she was vague in describing her husband's and her in-laws' occupations. She did describe them as engaged in contracting for construction and supplying but she did not know the names of their businesses or their specific addresses. The panel found that lack of knowledge marred her credibility because her marriage was arranged by her father and the panel assumed she ought to have been aware of her husband's status and his family background.
[16] Second, the panel notes that her parents did not seem to have taken action to protect her life even after they knew that her husband had beaten and threatened her several times. That the panel found implausible. In my view, the reference to this aspect of her story does not reflect the evidence that was before the panel which was that the parents did not know of the abuse of the applicant by her husband until she told them on September 15, 1998, when she left her husband and returned to live with them. Within a few days of that, following further threats from her husband, she filed written complaints with the police and other authorities and at least two of those were supported by letters from her father. That evidence belies the references in the panel's decision to her parents' failure to seek to protect her.
[17] The panel found implausible her answer to a question about her power to divorce in Bangladesh under the marriage contract made between the two families, hers and her husbands. She claimed not to have been aware of the content of the contract until after she had come to Canada and until then she did not believe that her husband had given her the power to divorce. In fact, the marriage contract is said to have contained a clause giving her the right to divorce. While it is not clear from the transcript, it appears the applicant was referring to her actual power to divorce her husband, facing his threats to kill her, and not to any contractual right of which she claims ignorance until after she arrived in Canada.
[18] The panel found her story implausible since she failed to mention in her complaints to authorities in Bangladesh the earlier occasions when her husband had beaten and threatened her. Her complaint concerned only an occasion on September 15, 1998 when she was so severely beaten that she left the home she shared with her husband and her mother-in-law. The panel notes the claimant did not provide a credible explanation as to why she had omitted the earlier important events in her complaint against her husband.
[19] Finally, the claimant did not provide a credible explanation concerning why her letters of complaint to Bangladesh authorities, written in Bengali, were signed with her English signature instead of her Bengali signature. In the result, the panel gave no weight to these documents of complaint.
[20] While the evidence on this last point is not entirely clear, the panel did not tie its concern about the nature of the signatures on the document with its ultimate determination concerning the applicant's claim to Convention refugee status. Counsel for the applicant urges that few if any of the specific examples of the panel's findings of implausibility and lack of credibility relate to its ultimate determination. It is said there is no nexus between these examples and the decision that she is not a Convention refugee.
[21] Aside from the general conclusion that her evidence was "very vague and ambiguous" which is not explained otherwise than by the examples referred to, in my opinion the panel's ultimate conclusion is made without reference to the basic claim put forth by the applicant. Thus for example, it does not explain why her signature in English in certain letters, her failure to mention certain incidents in those letters, her claim to ignorance of the contents of her marriage contract while in Bangladesh and her apparent ignorance of the details of her in-laws' and her husband's businesses undermined her story in toto. Did the panel mean that it did not believe she had been married under an arranged marriage, or that she had been abused by her husband, or that she had left him and complained to authorities, or that he had threatened to kill her on a number of occasions? Had the panel so concluded, it clearly would have determined that her claim to refugee status was without foundation and the basis for that determination would be clear. That may be what it intended but one is left to infer the grounds for the ultimate decision that she did not qualify as a Convention refugee.
[22] In these circumstances, the decision of the panel can only be said to be made without reference, that is, without being related, to all of the evidence before it. While one might be tempted to conclude that even accepting her story without question would not have led the CRDD to conclude that she is a Convention refugee, to so conclude in this case would be unfair to the applicant, and would in effect make the decision that should have been made by the hearing panel.
[23] In the circumstances an Order goes allowing the application for judicial review and setting aside the decision, referring the claim back for reconsideration by a different panel of the CRDD.
[24] No question was proposed for certification pursuant to s-s. 83(1) of the Act.
(signed) W. Andrew MacKay
_____________________________
JUDGE
OTTAWA, Ontario
November 5, 2001.
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