Docket:
IMM-4565-13
Citation: 2014 FC 99
Vancouver, British Columbia, January 27, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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SHAKHAR BENEDICT GOMES AND FILOMINA SHEEMA GOMES
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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
[1]
Whatever label violence against religious or
ethnic minorities takes, and no matter what it has been designated as, it is
still violence which is perpetrated against those who are members of religious
or ethnic minorities. To justify such violence is simply to make it appear
acceptable; that is absurd in and of itself, not needing further comment
except to say that such justification has been used throughout the ages to
perpetrate violence against religious or ethnic minorities.
___________________________
[2]
This judgment is in response to an application
for judicial review of a decision by an Officer of the Toronto Backlog
Reduction Office of Citizenship and Immigration Canada [CIC], subsequent to a
refusal of an application of the Applicants for permanent residence based on
humanitarian and compassionate [H&C] grounds under section 25 of the Immigration
and Refugee Protection Act, SC 2001 c 27 [IRPA].
[3]
The Applicants, citizens of Bangladesh, were refused refugee status by the Refugee Protection Division [RPD] of the Immigration
and Refugee Board [IRB] in April of 2012. Leave for judicial review was
also refused.
[4]
The RPD decision did accept that the principal
Applicant and his wife are Christians (a child was born to the couple
in Canada). The RPD also accepted that attacks were occurring against
Christians in their country of origin.
[5]
This is a case onto itself (un cas d’espèce)
based on the alleged hardships which face the couple on return to Bangladesh
with their child, as per the objective evidence; and, in addition, to evidence
in Canada both of a subjective nature and of a significant objective,
support-evidence nature from the Christian community in Canada in which the
principal Applicant works, as did the wife of the principal Applicant, and
in addition to their all encompassing-life-activities demonstrated therein, the
Court examined the file on the basis of all the evidence and applicable
legislation in light of the Officer’s determination on the basis of evidence on
file. This Court had to determine whether the Officer’s decision was reasonable
in light of Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190
(at para 47) and Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 (para 47-48);
thus, the Court had to decide whether the Applicants’ challenge to the
determination was valid.
[6]
The determination of the Officer when read as it
is, in light of the evidence, would simply have to be within an outcome by
which to serve the purpose of showing whether the result falls within a range
of possible acceptable outcomes.
[7]
The Court came to the conclusion that the
determination did not come within a range of possible outcomes on the basis of
the legislation and on the evidence, when read in light of that legislation and
the jurisprudence thereon.
[8]
Section 25 of the IRPA has been amended
by the provisions of the Balanced Refugee and Reform Act, SC 2010, c 8
[BRRA], as of June 2010; thereupon subsection 1.3 of the BRRA
was introduced into section 25.
[9]
Thus, in examining such a request of a foreign
national, consideration may not be given to factors in the determination of a
Refugee Convention application under sections 96 or 97 of the IRPA, but,
rather, consideration must be given as related to “hardships” that affect the
foreign national.
[10]
The Officer does not appear to have given proper
regard to the particular circumstances of hardship of this case, a case
which is one unto itself; wherein under the specific documented circumstances
of affiliation with the Applicants’ religious community, these circumstances of
affiliation appear central and core to their inner and outer lives.
[11]
Although it must be noted that the Officer did
consider the child under all facets of the jurisprudence, and at the young age
of the child, nothing more could be said except the potential upbringing of the
child is not only in respect of an inner Christian life for the child as
desired by the parents, but also an outer one in which the child lives.
[12]
The specific evidence of support by the
(all-embracing) Christian community in which the Applicants find
themselves, within a seminary setting, is seminal to the case: a community in
which the principal Applicant works and is occupied by his numerous volunteer
activities. Thus, the Christian setting is one in which the Applicants occupy
both their working and social activities, all within a Christian context.
Central to that is the St. Augustine Seminary, the Bangladesh Catholic
Association and the Dunston Church.
[13]
As clearly stated in the U.S. Department of
State Report, “2012 Country Reports on Human Rights Practices, Bangladesh, April 19, 2013”: “Instances of societal violence against religious and ethnic
minorities persisted, although many government and civil society leaders
claimed these acts had political or economic motivations and should not be
attributed only to religious beliefs or affiliations.”
[14]
Whatever label violence against religious or
ethnic minorities takes, and no matter what it has been designated as, it is
still violence which is perpetrated against those who are members of religious or
ethnic minorities. To justify such violence is simply to make it appear
acceptable; that is absurd in and of itself, not needing further comment except
to say that such justification has been used throughout the ages to perpetrate
violence against religious or ethnic minorities. In the case of these specific
Applicants, as a family whose essence is wholly encompassed in their Christian
way of life, which designates the very essence of their raison d’être, living
any other way but within that wholly Christian life, externally and internally,
would appear to present grave peril to their intrinsic Christian way of life as
a family.
[15]
Therefore, this Court has decided to have the
matter returned for determination anew (de novo) before a different
Officer.
[16]
Consideration is necessary due to the
Applicants’ uncontradicted objective, subjective and supporting documentary
evidence; that specific evidence must be analyzed to determine whether unusual
and underserved or disproportionate hardship, arising from the country
conditions, would have direct impact on the Applicants’ in view of their
all-encompassing Christian life.
[17]
For all of the above reasons, the Applicants’
application for judicial review is granted and the matter is returned for
determination anew (de novo) before a different Officer.
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