Date: 20080911
Docket: IMM-420-08
Citation: 2008 FC 1016
Ottawa, Ontario, September 11 2008
PRESENT:
THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
MONOARA
BEGUM
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
[20] In
any event, if the principles applicable to the judicial review of an
administrative decision like the one involved here provide for a certain
verification by the Court of the basis on which the suspicion required for the
exercise of the power arose, that verification ought to be quite deferential. The
Court is not called upon to say if it agrees with the decision-maker's
appreciation of the facts he had before him, its role is not to make sure that
this appreciation was correct. The power to make the decision is not the power
of the Court but of the decision-maker. The Court is simply called upon to
verify if the decision-maker's suspicion can find some support in the evidence
since it is only when such support does not exist and the suspicion appears
irrational that there will be an abuse of power . . .
[Emphasis
added.]
(Justice Louis Marceau of the Federal Court of Appeal
commenting in Kohl v. Canada (Department of Agriculture)
(1995), 99 F.T.R. 319, [1995] F.C.J. No. 1076 (QL), on
the Court’s role on review of a decision.)
II. Judicial Proceeding
[2]
This is an application
for judicial review under section 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision dated
December 14, 2007, dismissing the application for a pre-removal risk assessment
(PRRA).
III. Facts
[3]
The
applicant, Monoara Begum, was born on February 21, 1968, and is a citizen of Bangladesh.
[4]
Monoara
Begum states that she joined the Awami League (AL) political party on January 21, 1977. Within this party, she performed
as a singer at various events and because of this she allegedly became a
political target of the party’s opponents.
[5]
She
alleges that several members of her family were also active within the AL. She also alleges that members of the Bangladesh
Jatiya Party (BJP) harassed her. They then allegedly tortured her and hit her
and the police did not do anything because this party was in power.
[6]
In June 1988,
the head of the BJD, Momen Miah, allegedly abducted Monoara Begum from her home
and forced her to marry him. After her forced marriage on June 9, 1998, she
says that Mr. Miah began to torture her and abuse her. Once again, the
police did nothing.
[7]
In 1991, the
Bangladesh Nationalist Party (BNP) came into power in Bangladesh. Mr. Miah changed political parties
and joined the BNP. Monoara Begum alleges that around this period Shalina Begum
pressured Mr. Miah to get a divorce or to obtain permission to have a
second wife.
[8]
In 1996,
the AL came to power in turn and
Mr. Miah was arrested. However, with the Monoara Begum’s help, he managed
to be released on January 21, 1997.
[9]
Later, in
January 2001, Mr. Miah tried to marry Shalina Begum and, in March of the
same year, friends of Shaline Begum allegedly beat and tied up Monoara Begum,
intending to throw her, bound, into the Meghna River. However, local residents allegedly
managed to save Monoara Begum. After this, Monoara Begum filed a complaint with
the police, but the police did not do anything.
[10]
The BNP
wrongdoers allegedly threatened Monoara Begum’s brother to have him withdraw
his complaint or be killed. Further, they also allegedly threatened to kill
Monoara Begum. She then decided that she would go into hiding. She learned
afterward that the police were looking for her because she had been accused of
stealing money from the home of Mr. Miah.
[11]
In June
2001, friends and wrongdoers went to Monoara Begum’s family home. When they did
not find her there, they set the house on fire and it was then that Monoara
Begum decided she had to leave the country.
[12]
Monoara
Begum left Bangladesh on November 28, 2001.
[13]
She
alleges that she arrived in Canada on December 3, 2001. She had allegedly been
admitted to the country with a Bangladeshi passport issued in someone else’s
name. On February 7, 2002, she reported to the office of Citizenship
and Immigration Canada in Montréal to apply for refugee protection.
[14]
Afterward,
on November 17, 2002 and February 21, 2003, her refugee claim was heard
by the Refugee Protection Division (RPD). The RPD determined that there were a
number of inconsistencies in her testimony and that this tainted her
credibility. Accordingly, it refused the claim on March 14, 2003.
[15]
Also, on
July 21, 2006, Monoara Begum filed an application based on humanitarian and
compassionate considerations (CH) with risks and this application is part of a
distinct assessment.
[16]
Then on June 18, 2007, Monoara Begum was offered
the PRRA. She submitted her competed application on July 3, 2007, with supporting written
submissions. On July 16, 2007, she added additional documents in support of her
PRRA application. The application was based on her fear of persecution by her
in-laws on returning to Bangladesh and the fact that she would
not benefit from State protection when that occurred. In fact, being of the
Muslim faith, she alleges that she will face domestic violence at the hands of
her ex-husband as well as from members of her own family who have very strict
social values.
[17]
Further,
she relies on the fact that one Murul Islam marred her reputation by showing
photos and spreading false rumours during her visit to Bangladesh in 2006. This humiliated Monoara Begum’s
family. Further, she was rejected by her family members and she states that she
would have to hide from them in order to protect her life if she were to return
to Bangladesh.
IV. The decision impugned by this judicial review
[18]
On December 14,
2007, the PRRA officer dismissed Monoara Begum’s application, finding that she
would not be at risk if she were to return to Bangladesh.
[19]
In his notes, the PRRA officer emphasized the situation in the
country as well as the nature of the personalized risk for Monoara Begum, with particular
emphasis on marital status, as she is a divorced woman.
[20]
In
regard to the situation in the country, the PRRA officer notes that, despite
the problems arising from the current political situation, there have not been
any significant changes since the RPD’s refusal which could alone amount to new
evidence regarding the conditions of the country. Accordingly, he determined
that these changes did not represent for Monoara Begum a personal risk that would
justify the need to afford her specific protection.
[21]
In
regard to the personalized risk, the PRRA officer determined that Monoara Begum did not
adduce probative evidence supporting the existence of a personalized risk. He
determined, accordingly, that Monoara
Begum had not discharged the burden of establishing that she was in fact
targeted in Bangladesh for the
reasons raised.
[22]
The
officer also took into account the general documentary evidence regarding the
situation of women and, more specifically, of divorced women in Bangladesh. He points
out that the evidence establishes that divorce is widespread in Bangladesh, in rural
areas and even more so in urban areas. The PRRA officer points out that discrimination
against women in Bangladesh varies considerably with social environment and
social class origin, noting that the situation in urban centres was more
propitious. Accordingly, he determined that it would be to Monoara Begum’s advantage to
live in a large city like Dacca, where indeed she lived for several months
before she left for Canada.
V. Issue
[23]
Was the PRRA officer’s decision based on an erroneous finding of
fact or did he fail to take into account the evidence before him?
VI. Analysis
Standard of review
[24]
In Barzegaran
v. Canada (Minister of Citizenship and
Immigration),
2008 FC 681, Justice Edmond P. Blanchard decided the appropriate standard
of review for a PRRA decision:
[15] In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme
Court of Canada found that there should
be only two standards of review: correctness and reasonableness. The Court
indicated that the standard of correctness must be maintained in respect of
jurisdictional and some other questions of law (see Dunsmuir at
paragraph 50). When applying the correctness standard, a reviewing court will
not show deference to the decision-maker's reasoning process; it will rather
undertake its own analysis to decide whether the decision is correct.
[16] The Supreme Court also indicated that, in
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law (see Dunsmuir at paragraph 47).
[17] Guidance with regard to the questions that
will be reviewed on a reasonableness standard can be found in the existing case
law (see Dunsmuir at paragraph 54). The following factors will determine
whether deference ought to be given to a tribunal: whether there is a privative
clause, whether the decision-maker has special expertise in a discrete and
special administrative regime and what the nature of the question of law is
(see Dunsmuir at paragraph 55).
[18] Using the pragmatic and functional approach,
the Supreme Court of Canada determined in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39
(QL) at paragraphs 57--62, that the appropriate standard of review for H&C
applications is reasonableness simpliciter.
[19] In this case, the Act does not contain a
privative clause. Although it does provide a possible recourse to judicial
review, it cannot be done without leave of the Federal Court. As for the
decision-maker's expertise, in this case, the decision-maker is the Minister of
Citizenship and Immigration or her delegate. The Minister has some expertise
relative to courts in immigration matters, particularly with respect to when
exemptions should be granted from the requirements that normally apply. This is
a factor militating in favour of deference. Finally, on the nature of the
problem in question, the decision about whether to grant an H&C exemption
involves a considerable appreciation of the facts of the person's case, and is
not one which involves the application or interpretation of definitive legal
rules. Given the highly discretionary and fact-based nature of this decision,
this is a factor militating in favour of deference.
[20] For these reasons, I am of the opinion that
the standard of review applicable in this case is reasonableness.
[25]
Accordingly,
the standard of review to apply in this case is that of reasonableness.
Was the PRRA officer’s
decision based on an erroneous finding of fact or without taking into account
the evidence before him?
[26]
Monoara
Begum claims that the PRRA officer erred in disregarding the documentary
evidence regarding the condition of women in Bangladesh and regarding the facts which occurred
after the RPD decision.
[27]
Despite
the fact that the documentary evidence reports that divorced women could face
discrimination and persecution from the general population of Bangladesh, the PRRA officer emphasized
that there was no probative evidence establishing that all divorced women would
be targets for systematic persecution.
[28]
The PRRA
officer also points out that discrimination toward women varies considerably
according to social environment and social class origin.
[29]
With
regard to the violence that Monoara Begum allegedly suffered at the hands of
her ex-husband, the RPD points out:
Concerning the evidence with
regards to the marriage of the claimant to Momen Miah, I also find the evidence
contains important inconsistencies.
…
I also found the alleged
details of the abuse the claimant suffered to be inconsistent.
…
Her inconsistency and
inability to recount instances on [the times her husband tried to kill her]
rendered her testimony untrustworthy and further undermined her credibility.
…
I found the claimant’s
testimony at this point to resemble someone who was adding or making things up
as she went in response to specific questions, rather than giving details that
she was aware of prior to the prompting…
After reviewing all of the
evidence adduced, I am not satisfied that I know the real reasons the claimant
left her country. The evidence before me does not establish the key factual
elements of her alleged fear, on the balance of probabilities. The evidence
shows that both she and her husband had the right to divorce, according to
articles 18 and 19 of the Nikah Nama. The evidence shows that she was not
involved in political activities when she married her husband. The evidence of
abuse is inconsistent and does not credibly establish the claimant as an abused
woman. Because the claimant has failed to establish the key factual elements of
her claim on the balance of probabilities, with credible and trustworthy
evidence, I find that she has not established that there is more than a mere
possibility that she would be at risk of persecution, torture, death, or cruel
and unusual treatment or punishment if she were to return to Bangladesh.
For these reasons, I find that
the claimant is not a “Convention refugee” or a “person in need of protection”,
and I therefore reject her claim to refugee protection.
(RPD decision
pages 5-9.)
[30]
Since the RPD
made its negative finding, Monoara Begum points out that a Mr. Montu allegedly
took photos of her and spread false rumours about her. On that point, she filed
an affidavit of Murul Islam corroborating the facts she is alleging. She also
adds that her family and society would not accept her if she were to return to Bangladesh.
[31]
The PRRA
officer, however, observes that it was not established in a probative manner
that Mr. Islam had personal knowledge of the facts that he was reporting. His
reasons for this finding included that there was no probative evidence filed to
support the allegations that he made and that the statement was drafted in
general terms and was not very specific.
[32]
Accordingly,
he assigned little probative value to this document and found that Monoara
Begum had written facts and alleged risks without probative evidence to support
the existence of a personalized risk. On this basis, he dismissed the claim
because Monoara Begum did not satisfy the burden of establishing that she was
in fact targeted in Bangladesh for the reasons given.
VII. Conclusion
[33]
In Kohl, supra, Justice Marceau of the Federal
Court of Appeal identifies the role that must be played by the
Court in reviewing a decision:
[20] In any event, if the
principles applicable to the judicial review of an administrative decision like
the one involved here provide for a certain verification by the Court of the
basis on which the suspicion required for the exercise of the power arose, that
verification ought to be quite deferential. The Court is not called upon to
say if it agrees with the decision-maker's appreciation of the facts he had
before him, its role is not to make sure that this appreciation was correct.
The power to make the decision is not the power of the Court but of the
decision-maker. The Court is simply called upon to verify if the
decision-maker's suspicion can find some support in the evidence since it is
only when such support does not exist and the suspicion appears irrational that
there will be an abuse of power . . .
[Emphasis added.]
[34]
Further,
Justice Luc Martineau noted in his decision in Tuhin, supra:
[4] The onus
is on the applicant to submit evidence from a reliable and objective source,
and the PRRA Officer has no obligation before making her decision to bring to
the applicant’s attention insufficiencies in the evidence. Moreover, the weight
and credibility of the evidence depends exclusively upon the PRRA Officer’s
assessment. The reasons given in the decision for excluding the evidence
submitted by the applicant or for giving it little probative value are not
capricious or arbitrary, and appear to me to be reasonable in the
circumstances.
[5] In this
case, the application for protection essentially raised the same allegations of
risk that were previously raised before the IRB, and the PRRA Officer cannot be
reproached for arbitrarily excluding evidence that had already been submitted
to the IRB. With regard to the new pieces of evidence introduced by the
applicant, the PRRA Officer clearly explained why these were not probative or
conclusive in the circumstances. Her finding that there was no possibility of
serious risk is based firmly on the documentary evidence and takes into account
the changes in the political climate in Bangladesh. The BNP
was elected in October 2001, replacing the Awami League (AL), which had been in
power since 1996. In addition, the Public Safety Act, under which, according to
the applicant, there was a warrant for his arrest, has been repealed. Moreover,
the applicant does not explain specifically why the police of the present
government would be currently seeking his arrest, and his allegations of fear
of assault by AL “goons” seems purely gratuitous in the absence of credible and
reliable evidence. Considering the problems of credibility previously raised by
the IRB, the PRRA Officer could exclude or grant little value to the new pieces
evidence submitted by the applicant, which appear to me to be unreliable and
based on hearsay or supplied by non‑independent sources.
[35]
Accordingly,
this Court must exercise great deference in regards to the determination of the
PRRA officer as well as the RPD; they were able to decide on the facts that
were before them.
[36]
For all of
these reasons, this application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that:
1. The application for judicial review be dismissed;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
Certified
true translation
Kelley
Harvey, BA, BCL, LLB
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