Date: 20000417
Docket: IMM-2771-99
BETWEEN:
SORAYA AKTER
and
ISRATH JAHAN,
Plaintiffs,
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board dated April 20, 1999, by which the Refugee Division concluded that the plaintiffs were not Convention refugees.
FACTS
[2] The principal plaintiff Soraya Akter and her daughter Israth are citizens of Bangladesh.
[3] The principal plaintiff married Eunus Rahman, a politician and businessman, on January 10, 1994. In the same year he was imprisoned by his political opponents.
[4] The police harassments and visits of the Bangladesh Nationalist Party ("BNP") and Jamaat-e-islami ("Jamaat") in December led the principal plaintiff to seek refuge with her parents. In 1995 her husband fled to Canada, where he claimed refugee status: this was denied.
[5] In May 1995, the principal plaintiff opened a school with the help of other women. The school was denounced because it did not teach religious values. The members of the "Salish" committee, a mediation committee in the village, drew this fact to the attention of the principal plaintiff's brother and made propaganda out of it. The latter hit the principal plaintiff.
[6] In January 1996 the principal plaintiff's brother asked her to divorce her husband and marry a "Maulana". She refused and he beat her again. She told the police but as the latter considered it was a family problem they decided not to intervene.
[7] In March her brother confiscated the principal plaintiff's share of the estate.
[8] In April 1996 her brother accused her of having relations with a neighbour, Selim Miah, and carrying the latter's child. Mr. Miah and the principal plaintiff received notices to appear before the "Salish". Her mother sent her to stay with her husband's parents. The committee condemned her to fifty strokes of the cane, and Selim Miah received a fine of 5,000 takas. He allegedly paid a bribe to the principal plaintiff's brother.
[9] She said her brother subsequently accused her of stealing his money.
[10] She fled Bangladesh with her daughter Israth in June 1996.
[11] The plaintiffs claimed refugee status, alleging a fear of persecution because of their membership in a particular social group (family and women).
BOARD'S DECISION
[12] The Board raised several omissions, contradictions and improbabilities.
[13] It noted that the principal plaintiff argued that it was not necessary to obtain leave from her brother, the senior member of her family, to open a school. When the Board pointed out that custom required authorization, she alleged that her uncle had given it to her.
[14] The Board noted that the principal plaintiff stated that all the students were women, while on another occasion she stated that there were children and illiterate women.
[15] The Board did not believe that she was sentenced to fifty strokes of the cane by the "Salish", as a result of suspicions that she was pregnant. The Board noted that the principal plaintiff was not pregnant at this time and could not have been sentenced, as she said she was. Further, she had no information about how the trial was conducted. She also had no copy of her indictment, alleging that she had torn it up in a fit of anger. Further, letters from the Potenga Cooperative Society and Potenga Women Education Center did not mention the problems with the "Salish" and the police.
[16] The principal plaintiff related that she had gone to live with her parents after the problems she had at home. The Board noted that her parents' house was three or four kilometres from her house.
[17] The Board noted that the birth certificates were dated June 20, 1996, whereas the plaintiffs were born on February 3, 1974 and November 25, 1994. The principal plaintiff could not explain this contradiction.
[18] The Board dismissed the principal plaintiff's claim. As the claim by Israth, her daughter, was based on that of her mother, it met the same fate.
PLAINTIFFS'ARGUMENTS
[19] The plaintiffs submitted that the panel made an error in concluding that it was not plausible for the principal plaintiff to have opened a school for women without her brother's authorization. The principal plaintiff's explanation was logical and plausible.
[20] The plaintiffs alleged that the panel made an error when it concluded that the principal plaintiff had adjusted her responses when she felt cornered. The principal plaintiff respectfully submitted that she testified on oath and all her oral and written statements were true and made in good faith.
[21] The plaintiffs submitted that the panel made an error when it concluded that there was a contradiction in the principal plaintiff's story since she mentioned the fact that 25 children were attending her school. The principal plaintiff maintained that this was just a mistake, since it was women who were attending her school. She immediately corrected her statement, specifying that she was talking about 25 students, not children. The plaintiffs noted that this was a minor point.
[22] The plaintiffs argued that the panel made an error in objecting that it was plausible for the principal plaintiff to have been charged with carrying a man's child when she was not pregnant at the time. She indicated that she was not responsible for the plausibility of the charge, since it was not she who had laid it. Further, since the "Salish" arrived at its conclusion in the absence of the principal plaintiff, it was logical and plausible for the principal plaintiff to be unable to provide the details requested.
[23] The plaintiffs noted that the panel objected to a contradiction between the testimony of the principal plaintiff and her P.I.F. Since the "Salish" was composed of members of the Jamaat, it was logical that the two letters filed did not specifically mention the "Salish" since it mentioned the members of the Jamaat. The plaintiff was not responsible for the style of these letters or their content.
[24] The plaintiffs noted that the panel blamed them for being unable to explain why the two births were registered on the same day, when the birth certificates were obtained in June 1996. The plaintiffs stated that they did not know the reason for this.
DEFENDANT'S ARGUMENTS
[25] The defendant maintained that the inferences on which the panel based its decision were drawn reasonably and in accordance with the rules of law applicable in the case at bar. The Board was justified in assessing the principal plaintiff's credibility based on such criteria as rationality and common sense.
[26] The defendant submitted that, in assessing the credibility of the principal plaintiff, the Board could also take her conduct and the way she testified into account.
[27] The defendant noted that the principal plaintiff tried to complete her evidence by giving explanations already offered but not accepted by the panel. She had a duty to resolve any inconsistencies in her account, with evidence the Board thought satisfactory.
POINT AT ISSUE
[28] Did the Board err in dismissing the plaintiffs' claims on the ground that they were not credible?
ANALYSIS
[29] The Federal Court of Appeal has formulated the standard of control applicable to findings of improbability in Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[30] The plaintiffs argued that the panel made an error when it dismissed their explanations that the students were women and not children. I note that the Board raised the absence of authorization to open the school as a major improbability. They characterized the question of whether the students were women or children as a "minor element of contention". This characterization makes it clear that the Board based its finding on the question of authorization, rather than the question of the students. The decision to accept or reject the principal plaintiff's explanations about her mistake was one for the Board to make as the judge of fact.
[31] As regards to the trial, the Board dismissed the principal plaintiff's allegation that she was sentenced to fifty strokes of the cane because she was carrying the result of an illicit relationship with her neighbour. The Board pointed out that the principal plaintiff was not pregnant and it was unlikely that such a sentence was imposed on her. This finding was based on the principal plaintiff's testimony that she was not pregnant.
[32] The Board's findings on the other improbabilities relating to the dates of birth and place of residence, like those noted above, were based on the evidence.
[33] The Board was in a better position to assess the credibility of the plaintiffs through the testimony and conduct of the principal plaintiff.
[34] As the Board concluded that the principal plaintiff was not credible, it could dismiss the allegations that she was charged with theft by her brother and sought by the police.
[35] In Sheikh v. Canada (M.E.I.), [1990] 3 F.C. 238, and in particular at 244, the Federal Court of Appeal stated per MacGuigan J.A.:
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.
[36] Counsel for the plaintiffs did exceptional work in drawing the Court's attention to certain points which might support his position.
[37] Although counsel for the plaintiffs raised certain minor errors in the decision, there is nothing which could justify intervention by this Court.
[38] The Board's decision was based on the evidence submitted. It was not based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.
[39] The application for judicial review must be dismissed.
[40] None of the counsel submitted a serious question for certification.
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|
Pierre Blais
Judge
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VANCOUVER, BRITISH COLUMBIA
April 17, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-2771-99
STYLE OF CAUSE: SORAYA AKTER et al.
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: APRIL 5, 2000
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: APRIL 17, 2000
APPEARANCES:
MICHEL LE BRUN FOR THE APPLICANT
LISA MAZIADE FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHEL LE BRUN FOR THE APPLICANT
LISA MAZIADE FOR THE RESPONDENT
Morris Rosenberg
Deputy Attorney General of Canada
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