Date: 20000822
Docket: IMM-6226-99
BETWEEN:
KABITA DHAR,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), which concluded that the applicant was not a Convention refugee.
[2] The applicant, a citizen of Bangladesh, claimed to have a well founded fear of persecution in her country because of her religion, the Hindu religion, and her gender. As members of the Hindu religious minority, she and her family were victims of communal violence; the perpetrators were not punished by the authorities. Her family lost agricultural lands to influential members of the Islamic fundamentalist community.
[3] In January 1995, the applicant was admitted to college but she quit after two years "due to the constant pressures and harassments"1 she was facing from the student wing of the Bangladesh Nationalist Party (BNP) and the Islamic Chhatra students.
[4] On October 1st, 1998, while the applicant was on her way with her father to a Hindu religious ceremony, she was kidnapped at gun point by a group of Muslim fundamentalists. She was sequestered for about 24 hours during which time she was abused physically, verbally and mentally. She was finally released on the condition that she convert to Islam. Her father reported the incident to the police, but they were not interested in pursuing the matter.
[5] Feeling her daughter increasingly depressed and suicidal, the applicant"s father decided to send her away from the country. The applicant left Bangladesh on March 7, 1999. After transiting through Thailand and England, she arrived in Canada the next day and claimed refugee status at the airport.
[6] The Board rejected2 the applicant"s claim on the basis of lack of credibility, finding that she had testified "with very little spontaneity", being "evasive at times". The Board also noted that "several important omissions from her written account were noticed . . . and the claimant was not able to reasonably explain them."
[7] The applicant submits that the Board failed to take into account the reasons why details regarding the October 1st, 1998 incident and incidents prior to it were not included in her PIF3 and that it ignored specific corroborating documentary evidence supporting her claim4. The respondent submits that the applicant"s contentions are directed solely at the Board"s factual findings and that the Board did assess all the evidence, including the psychologist"s report and objective documentary evidence on Bangladesh. The respondent adds that the Board"s findings are entirely supported by the evidence.
[8] As I indicated at the close of the hearing, I have been persuaded that this application should be allowed.
[9] It appears from its reasons that the Board inferred from the applicant"s failure to mention in her PIF certain details pertaining to incidents she suffered on and before October 1st , 1998, that she was lacking credibility. In the circumstances of this case, I believe it was unreasonable for the Board to focus on omissions of details without even mentioning the reasons for such omissions5, as the plaintiff had indicated in her PIF and in her testimony, both corroborated by the psychological report of Ms. Liebman and the testimony of Mr. Dipak Dhar, the applicant"s brother-in-law who translated her narrative from Bengali to English for the lawyer who filled out the PIF.
[10] Not only did the Board"s members did not examine in their decision the reasons for such omissions, but they also ignored documentary evidence which corroborated parts of the applicant"s claim6. Ignoring such evidence constitutes a reviewable error, as indicated by Cullen J. in Bains v. Canada (M.E.I.) (1993), 20 Imm.L.R. (2d) 296, at page 300:
| "The second issue raised by the applicant is that although three pieces of documentary evidence directly specific to the applicant were introduced, namely, a doctor"s certificate, a letter from the applicant"s wife and a letter from the president of the Punjab Human Rights Organization, the Refugee Division made no mention of these documents in their decision. Once again, I am concerned that no mention of this documentation is made in the reasons. I agree that it is within the purview of the panel to review the documentation and accept or reject the information, however, the Refugee Division cannot simply ignore the information, [. . .]. The Refugee Division, in my view, is obligated at the very least, to comment on the information. If the documentation is accepted or rejected the applicant should be advised of the reasons why, especially as the documentation supports the applicant"s position. [. . .] It is my decision that the Refugee Division erred in law when it failed to advise whether it accepted or rejected the three documents specifically applicable to the applicant, and for that matter, failed to mention whether they even considered this evidence." |
[11] For these reasons, this application will be allowed. This case raises no serious question of general importance.
_______________________________
Judge
Ottawa, Ontario
August 22, 2000
__________________
1 Personal Information Form (PIF), Tribunal Record (T.R.) p. 22, paragr. 6.
2 Board"s decision, T.R. pp. 3-11.
3 The applicant refers to her testimony and to some evidence which was adduced before the Board on this issue: a psychological report from Sara Liebman, psychologist, indicating that the applicant suffers from a psychological syndrome that origins from the sexual aggression that she was a victim of and which affects her capacity to talk and give details about what happened to her (T.R. pp. 193-198); an addendum to this report which, on the basis of the psychologist experience with women from south east Asia, describes in details why, culturally, religiously and sociologically and because of what she had suffered and the syndrome affecting her, the applicant could not provide details: the testimony of Mr. Dipak Dhar, who confirmed the incapacity of the applicant to provide details about what happened to her (T.R. pp. 529-539). In addition, the applicant refers to a letter from the applicant"s former attorney, Me Annie Bélanger, dated November 23, 1999 in which the attorney explains that she decided not to go into detail about incidents that occurred prior to the culminating one in October 1998 and also decided not to push the applicant for further details regarding the said culminating incident as she saw that the applicant was not psychologically at east to do so (applicant"s record, p. A27 (not numbered)).
4 Namely, the psychological expertise from Ms. Liebman, a letter from the applicant"s Hindu temple (T.R. p. 202), a drug prescription sheet dated November 14, 1999 (T.R. pp. 200-201), a letter from the Bangladesh Hindu Busshist Christian Unity Council religious organisation, dated October 22, 1999 (T.R. p. 192) and a letter from the applicant"s mother (T.R. pp. 204-205). On the issue of ignoring pieces of evidence, see: Bains v. Canada (M.E.I.) (1993), 20 Imm.L.R. (2d) 296 (F.C.T.D.) [Cullen J.]; Mahanandan v. M.E.I. (August 24, 1999), A-608-91 (F.C.A.); Rehman v. Canada (M.C.I.) (June 4, 1997), IMM-2175-96 (F.C.T.D.) [McGillis J.]; Agbodoh-Falschau v. M.C.I. (August 24, 1998), IMM-3871-97 (F.C.T.D.) [Tremblay-Lamer J.]; Cepada-Gutierrez v. M.C.I. (October 6, 1998), IMM-596-98 (F.C.T.D.) [Evans J.]; Numbi v. M.C.I. (February 17, 1999), IMM-1378-98 (F.C.T.D.) [McGillis J.]; Berete v. M.C.I. (March 3rd, 1999), [note 4 cont"d]
IMM-1804-98 (F.C.T.D.) [Tremblay-Lamer J.]; Khan v. M.C.I. (March 11, 1999), IMM-2831-98 (F.C.T.D.) [Teitelbaum J.];Seevaratnam v. M.C.I. (May 11, 1999), IMM-3728-98 (F.C.T.D.) [Tremblay-Lamer J.]; Vijayarajah v. M.C.I. (May 12, 1999, IMM-4538-98 (F.C.T.D.) [Tremblay-Lamer J.].
5 In a similar case, M.R. Khawaja v. M.C.I. , I made the following statement: "In my opinion the panel was wrong to conclude that the principal claimant was not credible without taking into account and without discussing the content of the psychological report which found severe post-traumatic stress disorder and the plaintiff"s difficulties relating the traumatizing events he had experienced, except for negatively arriving at the conclusion that these were facts he had not indicated in his personal information form." I still share that view.
6 See note 4.
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