Kanji v. Canada, docket IMM-2451-96

     IMM-2451-96

B E T W E E N:

     MUMTAZ BADURALI KANJI and SHAIFALI KANJI

     Applicants

     - and -

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

REASONS FOR ORDER

CAMPBELL J.

         This is an application for judicial review of a decision of the Immigration and Refugee Board (Convention Refugee Determination Division) dated June 20, 1996.

     The applicants are citizens of India. Mumtaz Badurali, the primary applicant, is the mother of the minor applicant, Shaifali. The applicants base their claims on a well-founded fear of persecution in India on the grounds of religion, in that they are Ismaili Muslim, and membership in a particular social group, in that they are Indian women.

     Apart from whether the Board made an error in respect of these issues, the Board made the significant finding that, after leaving India due to her fear of persecution the applicant returned there in 1983 and 1986, and, as a result, re-availed herself of the protection of that country. In its decision, the Board found that the circumstantial evidence that the returns provided negated any subjective fear of persecution the applicant had when she left, and this finding was key to denying her refugee claim. I intend to restrict my decision to set aside the Board's decision to this finding which I consider to be an error warranting a redetermination.

     On the applicant's testimony, the Board found that up to 1983, the applicant had a well founded fear of persecution. In reaching this decision, the Board accepted the applicant's evidence of subjective fear, and in effect made the following findings of fact:

In 1979 or 1980, the claimant testified that she feared the Shiv Sena, a Hindu group. She and her sister were eye witnesses to a friend's abduction. This incident was not reported to the authorities as it was considered culturally shameful to the victims. She said these incidents happened all the time in Bombay, where the Hindu were in the majority and the Ismali [sic] Moslem in the minority.

The claimant stopped attending college when Hindu boys once tried to force their way into her house when her parents were not home. They tried to touch and rape her. Her screams and shouts came to her neighbour's attention and the boys ran away. She recognized these boys as members of the Shiv Sena because of their dark clothes, their appearance and facial features. The claimant testified that her father and brother did nothing after the attack. They feared that the Shiv Sena would retaliate against her family if they contacted the police.

It was general knowledge that retaliations happened frequently against families of persons attacked in this manner. The claimant could not remember any other specific incidents as it was a long time ago but knew that such kidnappings took place.

The claimant testified to the importance of having a male family member to protect her. On the day of her assault both her father and brother were at work. Her father died prior to her wedding and could protect her no longer.

In 1983, the claimant married and left India. She resided in Zaire until 1991. ...The claimants came to Canada on 21 July 1991 and made a Convention refugee claim the following month.

     With respect to the reasons for her return to India, the applicant gave the following evidence in response to questions posed by her counsel:

Q.      Okay. Now, knowing what life was like in Bombay, you left the country, got married ---

A.      Yes.

Q.      -- why would you return in 1983 to have your baby?

A.      I went back to India in 1983 because of the baby. I went back for the delivery because it was my first child and I didn't know what to do and I was all alone. I didn't know what happened when you have a baby, when you have your first child so therefore I had to go back.

Q.      When you went back in 1983, did you worry about your safety at the time?

A.      Yes, you have to fear your safety there all the time.

Q.      But you still went back?

A.      Because I had to go.

Q.      Why did you have to go?

A.      Because I'm telling you about the delivery that I wanted -- I was going to have this baby.

Q.      Why did you go back in 1986?

...

A.      Because I was alone in Africa at that time because my husband used to travel a lot, doing his business, so I went back because I was alone and he was not living with me.

...

Q.      So why did you go back to India, knowing what you've told us about the situation there and the Hindus?

A.      I'm telling you this -- I told you this, that I was living all alone, I didn't have anybody -- I didn't have anybody over there... I just had my daughter and myself.

...

Q.      ...What I want to try to get from you, Mumtaz, is why in 1986, did you go back to India? And you've told us a little bit about that; you were alone; your husband was on a business trip. But you still went back, knowing the situation in India.

A.      Well, I want to say I went back because I was compelled to do that. I was -- I didn't have any other choice.

Q.      Why were you compelled to go back?

A.      Because in Africa my husband was not living with me, and I was living there all alone, with my little daughter, and I was afraid because there was no other person living around me and I didn't know what to do.

Q.      Were you afraid to go back to India, though? I need to know that.

A.      Yes, I was afraid to go back to India. I was afraid there, as well I was to return back to India, but I didn't have any other choice. I didn't know what to do.

Q.      How long were you in India in 1986?

A.      I think I stayed there for five (5) or six (6) months. And I stayed home.

Q.      Did you go out at all?

A.      No, I didn't go out anywhere.

[Application Record, pp.242-243]

    

     With respect to this evidence, the Board made the following finding:

Having found that the claimant had a well-founded fear of persecution in 1983, the panel finds that by reavailing herself of the protection of her country of nationality by returning to India in 1983 and later in 1986, the claimant negated that fear.

     The two bases upon which this finding could be made in law are that, the applicant falls within the exclusion clause of s.2(2) of the Convention refugee definition in the Immigration Act, and/or that her subjective fear of persecution no longer exists. Section 2(2) of the Immigration Act provides:

A person ceases to be a Convention refugee when

(a)      the person voluntarily reavails himself of the protection of the country of his nationality;

(b)      the person voluntarily reacquires his nationality;

(c)      the person acquires a new nationality and enjoys the protection of the country of that new nationality;

(d)      the person voluntarily re-establishes himself in the country that the person left, or outside of which the person remained, by reason of fear of persecution, or

(e)      the reasons for the person's fear of persecution in the country that the person left, or outside of which the person remained, cease to exist.

[Emphasis added]

The problem I have with the Board's finding made on either basis is that it is unsupported by the evidence.

     The principles that a judge must listen to the testimony in its entirety with an objective and open mind, and testimony given under oath is presumed to be true unless there are valid reasons to doubt its truthfulness, are fundamental to proper findings of credibility.¹ In its decision, the Board did not make an express finding that it disbelieved the applicant's evidence with reasons for doing so, and accordingly on the face of the record, I can only conclude that the evidence was believed.

     In her evidence, the applicant clearly states that she did not reavail herself of the protection of India, nor did she lose her subjective fear. This direct evidence contradicts and negates any possible finding to the contrary on the basis of the purely circumstantial evidence of her returns to India. I thus find that the Board erred in making the finding just quoted above.

     Accordingly, I set aside the decision herein, and refer the matter back to a differently constituted Board for redetermination.

                         Douglas R. Campbell

                         Judge

VANCOUVER

April 4, 1997

__________________

     ¹see Okyere-Akosah v. The Minister of Employment and Immigration (1992), 157 N.R. 387, Maldonado v. The Minister of Employment and Immigration, [1980] 2 F.C. 302, Moreno v. The Minister of Employment and Immigration, [1994] 1 F.C. 298 and Hilo v. The Minister of Employment and Immigration (1991), 130 N.R. 236.