Date: 19990521
Docket: IMM-3371-98
BETWEEN:
NERENGIN KAUR DHILLON
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated May 21, 1998, wherein it was determined that the applicant is not a Convention refugee.
[2] The applicant seeks an order setting aside the decision and remitting the matter for reconsideration.
[3] The applicant is a citizen of Malaysia and belongs to the Sikh religion and ethnic group. She is one of the wives of Mr. Habtar Singh, with whom she had two daughters, both of which were born in Canada. Mr. Singh also has another wife with whom he has three children.
[4] The applicant alleges that she suffered several verbal, physical and sexual abuse at the hands of her husband whom she married on 1987. She went to the police once in Malaysia after her husband beat her up. They refused to intervene as this was a family matter.
[5] The family first came to Canada in 1989 and made a refugee claim. The applicant was a dependent of her husband's application. While here the abuse continued; he threatened that if she went to the authorities he would not help her to remain in Canada.
[6] Their refugee claim was rejected. Habtar Singh's other wife and children were granted permanent residence status under the Deferred Removal Order Class (DROC) regulations. Mr. Singh's DROC application was rejected because of his criminal record. He and the applicant were subsequently deported to Malaysia on November 18, 1994.
[7] Upon her return to her native country, the applicant was detained and interrogated by the authorities. During her detention she was molested. The family was harassed because they refused to convert to Islam.
[8] The applicant, her husband and their children returned to Canada on July 10, 1995. In April of 1996, she went shopping along with family members when someone from the group was caught shoplifting. When the police verified the applicant's identity, they discovered that she was under a deportation order. She and her daughters were immediately arrested and detained. Mr. Singh subsequently turned himself in. He was also detained for a short time. The family initially were confined to one room. However, guards transferred Mr. Singh to a different section, following a complaint by the applicant that he was beating her.
[9] The applicant and her children were in custody for two months, until her husband produced their passports and posted a bond for their release. While his family was in detention, Mr. Singh retained counsel. In May, 1996, the couple made another refugee claim. They alleged they were persecuted by the Muslim majority in Malaysia on account of their Sikh ethnicity and religion.
[10] The applicant prepared a statement (PIF) describing the grounds of her claim, without referring to the domestic violence she suffered at the hands of her husband and the lack of protection received from the Malaysian authorities; this, she alleges was for fear that her husband would read her PIF and perhaps retaliate.
[11] The applicant claims that she informed their lawyer of the domestic violence situation and that she wanted to file a claim separate from that of her husband. However, her counsel never filed a separate claim for her, nor did he advise her of the legal aid available in order for her to retain independent counsel.
[12] The abuse continued. In February, 1998, the applicant went to a shelter for a few days. She came back when her husband threatened that he would withdraw the bond if she did not return. On March 12, 1998, Mr. Singh beat up the applicant so badly that she had to seek medical help at a walk-in clinic.
[13] The hearing before the Board was held on May 21, 1998. The applicant did not testify. The members of the Board orally gave their decision rejecting both Mr. Singh's and the applicant's refugee claim. They found that Mr. Singh's testimony lacked credibility based on several discrepancies between the PIFs, the documentary evidence and his oral testimony. As well, the two year delay in filing a refugee claim indicated that they did not really have a subjective fear of persecution in Malaysia. This decision applied as well to this applicant since her claim depended on her husband's application.
[14] After the hearing, Mr. Singh grew very angry and beat the applicant almost daily. Finally, on May 28, 1998, she could not take it anymore and went to a shelter with her two daughters. From this refuge, she filed a complaint with the police. As a result, Mr. Singh was charged, arrested and detained. The applicant was still residing at the shelter when the written decision of the Board was issued. She obtained a copy on June 23, 1998. The social worker advised her that she could seek independent counsel through the Legal Aid Plan who could seek judicial review of the decision.
[15] After Mr. Singh was arrested, his family attempted to intimidate the applicant so she would not testify against him. She reported the threats to the police. As of the date of the filing of the applicant's documents (August, 1998), Mr. Singh was still in custody awaiting his trial.
[16] The four issues raised by the applicant are:
| 1) Did the Board err when it joined the applicant's claim with her husband's without inquiring into whether the applicant was under duress and without affording an opportunity to the applicant to be heard on the issue of joinder of claim? |
| 2) Did the Board err by refusing the applicant's claim on an adverse finding on the credibility of her husband alone, without hearing from the applicant? |
| 3) Did the Board err when it failed to determine the applicant's claim on its own merits? |
| 4) Does the applicant,s situation as a woman of the Sikh religion and a victim of domestic violence place her within the definition of "membership in a particular social group"? |
[17] Section 10 of the Convention Refugee Determination Rules, SOR/93-45 provides as follows:
| 10(1) An Assistant Deputy Chairperson or coordinating member may order that two or more claims or applications be processed jointly where the Assistant Deputy Chairperson or coordinating member believes that no injustice is thereby likely to be caused to any party.
10(2) Subject to section (3), claims or applications of the legal or de facto spouse, dependant children, father, mother, brothers or sisters of the person concerned shall be processed jointly.
10(3) On application by a party, or on the members' own motion at the time of the hearing, the members may order that the claims or applications be heard separately, where the members believe that hearing the claims or applications jointly is likely to cause an injustice to any party.
|
10(1) Un vice-président adjoint ou un membre coordonnateur peut ordonner que deux ou plusieurs revendications ou demandes soient traitées conjointement, s'il estime qu'une telle mesure ne risque pas de causer d'injustice aux parties.
10(2) Sous réserve du paragraphe (3), les revendications ou les demandes du conjoint de droit ou de fait, des enfants à charge, du père, de la mère, des frères ou des soeurs de l'intéressé sont traitées conjointement.
10(3) les membres peuvent, à la demande d'une partie, ou de leur propre initiative au moment de l'audience, ordonner qu'une revendication ou demande soit entendue séparément d'une autre revendication ou demande, s'ils estiment que le fait d'entendre conjointement les revendications ou les demandes risque de causer une injustice à l'une ou l'autre des parties.
|
[18] The applicant submits that she was unable to raise the issue of domestic violence of her own initiative because of her husband's presence. The Board should have verified if she was under duress by affording her an opportunity to be heard separately on the issue of joinder.
[19] The Board may order of its own initiative to hear the claims separately when there is a reason to believe that the applicant would suffer an injustice. In this case, there was absolutely no evidence of domestic violence before the Board.
[20] The onus is on the claimant to establish his or her case before the Board. The applicant completed her PIF separately and on her own behalf. She could have objected to the hearing of her claim in conjunction with that of her husband. She was familiar with the refugee determination process as a past claimant. Further, she was represented by counsel and had two years to seek independent legal advice. It has been held in Frenkel v. Canada (M.C.I.) (January 26, 1998), IMM-4428-97 (F.C.T.D.) that alleging poor counsel is a matter between the applicant and her lawyer.
[21] The Board was not in error because it failed to read the applicant's mind. The applicant and her husband's PIF contain coherent and analogous recitals. Under these circumstances, it could be expected that the claims would be joined. In her PIF, the applicant refers to her and her husband's fear of persecution. She uses the word "we" consistently.
[22] The Board rejected the applicant's and her husband's refugee claim based on a negative finding on his credibility alone. It is alleged that the Board used the applicant's PIF to find discrepancies in her husband's testimony. The applicant takes issue with the fact that she was never called to testify and clarify these discrepancies. As well, since she did not testify, the Board never determined whether the applicant was persecuted by the Muslims upon her return to Malaysia in 1994 and therefore failed in its duty to explore the merits of her claim.
[23] Claims which are processed jointly can be determined identically, unless distinctive elements arise in individual cases; see Retnem v. M.E.I. (1991), 13 Imm.L.R. (2d) 317 (F.C.A.). The Board did not specifically refer to the applicant's claims of persecution which allegedly happened to her and her family upon her return to Malaysia in 1994. However, the basis for claiming refugee status was the same as that of her husband: fear of persecution because they are Sikh. This was indirectly dealt with by the Board's findings on the situation in Malaysia. The Board referred to documentary evidence which demonstrated that non-Muslim are not being persecuted in Malaysia. In fact, the constitution provides for freedom of religion and the government has refused to accede to pressures to impose Islamic law beyond the Muslim community. The Board concluded that individuals of Sikh background did not have an objective basis for their fear of persecution.
[24] I have not been persuaded that the applicant's testimony was necessary. The Reasons show that her husband's evidence was found untrustworthy by reason of blatant inconsistencies between his oral testimony, his PIF and the documentary evidence. There are only two references to the applicant's PIF. One was in relation to an application for an extension of a passport. In the Reasons, at page 7 of the Record, her PIF was not referred to to discredit her husband's statement about the passports, but to confirm it. As for the second reference, her narrative along with Mr. Singh's two PIFs, were directed to discredit Mr. Singh's oral claim that he had sought the help of police several times, without success. The applicant's testimony was not required to clarify any discrepancies. There is no indication that the applicant or her counsel requested she testify.
[25] Victims of domestic violence constitute a social group for the purposes of the definition of Convention Refugee at section 2 of the Immigration Act, R.S.C. 1985, c. I-2; see Aros v. Canada (M.C.I.) (February 11, 1998), IMM-4480-96, (F.C.T.D.). However, the duty of this Court is to review the Board's decision. Applicants cannot now rely upon facts which were not before the Board. It was never made aware of the allegations of domestic violence. There is no basis for this Court to intervene.
[26] The application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
May 21, 1999
Email this Content