Date:
20130419
Docket:
IMM-9381-12
Citation:
2013 FC 401
Ottawa, Ontario,
April 19, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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BHATA, Sajid Gulam Vali
BHATA, Samimbanu Gulam
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Refugee Protection Division Member [Member] refused the Applicants’
applications for refugee status and protection. This is the judicial review of
that application.
II. BACKGROUND
[2]
The
Applicants are a brother and sister from a small village in India. The sister had a job with the village chief acting as a cook and child care
provider. The brother worked in the fields.
[3]
The
female Applicant’s story is that prior to the incident in May 2011, she had
been raped by the village chief three or four times.
[4]
The
male Applicant’s story is that in May 2011, the village chief’s daughter
approached him and made sexual advances. He refused her advances by trying to
leave but the daughter tore her clothes and accused him of attempted rape.
[5]
As
retribution for his daughter’s alleged rape by the brother, the village chief,
two neighbours and a police officer gang-raped the sister. One of the men
involved in the rape was named Jamal.
[6]
The
two siblings left India and arrived in Canada in June 2011. However, before
leaving India, the sister contacted Zakir in Vancouver with whom she eventually
became romantically involved. Zakir is the brother of Jamal – one of the
alleged rapists. She claims she met Zakir while walking in the village and he
told her he lived in Canada and gave her his phone number if she ever needed
it.
[7]
Finally,
the sister contends that having become romantically involved with Zakir in Vancouver, she was physically attacked by Zakir’s ex-wife, his daughter and Jamal’s two
sons (Zakir’s nephews).
[8]
The
Member concluded that it was his duty to determine whether there was sufficient
credible or trustworthy evidence to determine whether there is a “serious
possibility” that the claimants would be persecuted or that there were
substantial grounds to believe that they would be tortured, or be at risk of
losing their lives or being subjected to cruel and unusual punishment or
treatment if they returned to India.
[9]
The
Member found that the determinative issue was credibility. On a number of
points the Member found both Applicants not to be credible. The Member also
found that the brother had a viable IFA.
[10]
The
issues in this judicial review were whether the Member’s decision was
reasonable, both with respect to credibility and with respect to a viable IFA.
III. ANALYSIS
[11]
There
is no doubt that in accordance with the principles laid out in Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the standard of review is
reasonableness.
Further, on true
findings of credibility, the Court owes considerable deference to the trier of
fact who is in the unique position to assess each witness and their testimony
in the context of the whole case.
[12]
In
oral argument the Applicants stressed that the Member erred by focusing on
irrelevant matters; particularly matters of religious belief and the
relationship of the sister with her boyfriend.
[13]
That
submission is without merit. A fair reading of the evidence and reasons
discloses no such error. The Applicants had put religious beliefs in issue. The
attention paid to the boyfriend was proper given the female Applicant’s story
of rape and assaults.
[14]
It
was more than open to the Member to be sceptical about the female Applicant’s
romantic relationship with the brother of one of her rapists. Similarly, it was
open to the Member to find the female Applicant’s story about the assault in Vancouver unreasonable given the thesis that the sons of the rapist (nephews to the
boyfriend) were said to be involved and yet this information was not conveyed
to the police in making a report.
[15]
The
Member reasonably concluded that a four-month delay in filing for refugee
protection was inconsistent with her story and subjective fear.
[16]
The
Member also commented on the female Applicant’s demeanour during questioning.
The Immigration and Refugee Board’s IRB Guideline 4, Women Refugee
Claimants Fearing Gender-Related Persecution: Guidelines Issued by the
Chairperson Pursuant to Section 65(3) of the Immigration Act, effective
date: November 13, 1996 [Gender Guidelines] do not preclude
credibility findings based on demeanour nor are the Gender Guidelines
more than guidelines and do not carry the same weight or effect as legislation.
It was apparent from the record that the Member was aware of and sensitive to
the Gender Guidelines. Further, demeanour was not the pivotal point on
which lack of credibility turned.
This Court must
respect the Member’s observation of the witness so long as the Member was alert
and alive to the issues raised in the Gender Guidelines.
[17]
There
is no basis for overturning the Member’s finding of lack of credibility in
respect of both Applicants.
[18]
The
Member’s conclusion that the male Applicant had a viable IFA was based on his
earlier success in hiding, the absence of risk of arrest, the size of India limiting the village chief’s ability to find him and the male Applicant’s own
education, work experience and facility in English. These are all reasonable
factors to consider.
IV. CONCLUSION
[19]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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