PRESENT: The Honourable Paul U.C. Rouleau
BETWEEN:
MARLEN DE LEON ZAMARRON
JOSHUA SANCHEZ
ELISA JASMIN RAHMAN
AYRA YASMIN RAHMAN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for a judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated July 18, 2005, in which the Board found that the applicants were not Convention refugees or persons in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, 2001 S.C. c. 27 (the IRPA).
[2] The male applicant, Mohammed Mahbubur Rahman, is a citizen of Bangladesh. His wife, Marlen De Leon Sanchez, is a citizen of Mexico. The minor applicant Joshua Sanchez is the minor child of the female applicant. The two remaining applicants are the minor children of the couple. Each of the children was born in the United States, and each child currently holds a U.S. passport.
[3] The male applicant is a Muslim from Bangladesh, who came to the United States for school in 1993. At the end of his studies, the male applicant remained in the United States without status, from 1997 to 2004, when he came to Canada.
[4] The female applicant met the male applicant in the United States in 1997. They were married in 2000. She is a Mexican citizen and a Christian.
[5] The minor applicants, aged 13, 5, and 4, are all U.S. citizens. The minor applicant Joshua Sanchez is a Christian. The male applicant expressed hope that the two female minor applicant will choose to be Muslims.
[6] The male and female applicant both claim a fear of persecution based on membership in a particular social group - family. The male applicant claims that, if he is returned to Bangladesh, he would be persecuted for having a Christian wife. He claims that, as a Bangladeshi Muslim, he would face persecution in Bangladesh, due to his marriage. He emphasizes that his wife would face even greater persecution, if the family was returned to Bangladesh. The male applicant added that he would face additional persecution for marrying a woman who had a child with another man prior to the marriage.
[7] The female applicant claims that, is she is returned to Mexico, she would face persecution, based on her marriage to a Bangladeshi Muslim man. She alleges that she has heard of persecution in other situations where two people of different religions married. She adds that her husband would face cultural and religious discrimination in Mexico, as well as experiencing culture shock.
[8] The minor applicants base their claims on the claims of their parents.
[9] The family lived in the United States from 1997 until 2004, when they decided to come to Canada to make a refugee claim. The male applicant alleges that he experienced some discrimination in the U.S. between 1997 and 2004, especially after the terrorist attacks of September 11, 2001. He claims that he was afraid to register with U.S. Immigration officials, because of his illegal status. The male applicant alleges that he feared that the minor applicants would face persecution, or hostility in the U.S.because of their family name, and because of their skin tone and appearances.
[10] The female applicant stated that there was no fear of persecution for the minor applicants in the U.S. - she iterates that the minor applicants accompanied her and her husband to Canada because they are all part of the same family.
[11] The applicants all came to Canada in 2004, from the U.S., and claimed refugee status. The Board issued a negative decision on July 18, 2005, finding that the applicants were not Convention refugees or persons in need of protection.
[12] The Board found that the applicants were not Convention refugees or persons in need of protection. The reasoning for the conclusion focused on three major components: (i) the delay in leaving the U.S. to come to Canada and make a claim; (ii) the lack of an objective basis for the applicants' fears in Bangladesh, Mexico, and the United States; and (iii) the lack of credibility, and plausible evidence, that the applicants would suffer persecution in Bangladesh, Mexico, or the United States.
[13] At the outset of its analysis, the Board clarified what it intended to analyse, as regards the applicants. The Board wrote that it would consider each applicant on an individual basis. Specifically, the Board considered the persecution that the male applicant would face in Bangladesh, as a Bangladeshi Muslim married to a Christian woman. The Board then considered the persecution that the female applicant would face in Mexico, as a Mexican Christian married to a Muslim man. Finally, the Board considered whether the minor applicants, as U.S. citizens, would face persecution in the United States.
[14] For the male applicant, the Board concluded that he had not presented sufficient evidence that he would face persecution in Bangladesh. The Board noted that interfaith marriages are allowed under Bangladeshi law, and, although such marriages are rare, they do exist. The Board found that the male applicant would not face persecution in Bangladesh, based on his claimed Convention ground.
[15] The Board considered a brief letter from the male applicant's father, from 2002, which stated that "bad elements" would assault and harm his son, and his son's family, if they returned to Bangladesh. The Board discounted the letter, stating that the brief letter only contained vague warnings from unknown sources. The Board added that the male applicant's Bangladeshi's family's disapproval of the marriage is not a Convention ground for claiming refugee status, and would not result in persecution, if the male applicant were to return.
[16] The Board also considered an affidavit, or witness information form, from the male applicant's sister, stating that he would face persecution in Bangladesh. The Board found that the male applicant's sister is not an objective source of information, nor an expert on country conditions.
[17] The Board concluded that the male applicant would not face persecution in Bangladesh. The Board noted that, while Christians face persecution and discrimination in Bangladesh, the male applicant is a Muslim. The Board further concluded that the marriage is legal under Bangladeshi law, and the female applicant would not be forcibly converted to Islam.
[18] The Board then considered the possibility of persecution for the female applicant in Mexico. The Board concluded that Mexico is a generally tolerant society, on religious issues, and found that her fear is not well founded objectively.
[19] The Board then briefly turned its attention to the possibility of persecution in the U.S., for the minor applicants. The Board found that there was no possibility of persecution.
[20] Finally, the Board concluded that the male and female applicants had not adduced enough credible evidence to establish a refugee claim in Canada; that the issues of family unity, and humanitarian and compassionate issues, although important, fall outside the mandate of the Board, and cannot be considered at this time.
[21] In oral submissions, the applicant emphasized that the determination by the Board on delay undermining credibility was a perverse finding; particularly the Board erred in considering the applicants' failure to claim asylum in the U.S. The applicants argue that the Board erred in giving the male applicant's father's letter no probative value; that it failed to consider the issue of persecution against Christians in Bangladesh, and the supporting documentation.
[22] The remainder of the arguments presented by the applicants and the failure to seek asylum in the U.S. primarily ask the Court to re-weigh the evidence. The mandate of this court is not to re-weigh the evidence when the applicants do not agree with a particular result. My colleague Luc Martineau emphasized the mandate of this court, in R.K.L. v. Canada(Minister of Citizenship and Immigration)[2003] F.C.J. No. 162, at para 8:
¶ 8 Moreover, it has been recognized and confirmed that, with respect to credibility and assessment of evidence, this Court may not substitute its decision for that of the Board when the applicant has failed to prove that the Board's decision was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it: see Akinlolu v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 296 at para. 14 (QL) (T.D.) ("Akinlolu"); Kanyai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1124 at para. 9 (QL) (T.D.) ("Kanyai"); and the grounds for review set out in paragraph 18.1(4)(d) of the Federal Court Act.
[23] On the question of delay, it is suggested that the claimant felt more insecure after he moved in 2000. From 1997 to 2000, while residing unlawfully in the U.S. he felt no pressing need to regularize his status. On this, the Board wrote at page 7 of its decision:
"I find this very long stay in the U.S. without legal status and then the delays in coming to Canada to make refugee claims demonstrate a serious lack of subjective fear of returning to Bangladeshand Mexico respectively"
This appears to answer the question raised by the applicants. This finding is supported by the jurisprudence; Espinosa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1324; Ndombele v. Canada(Minister of Citizenship and Immigration), 2001 FCT 1211; and Villalobos v. Canada(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1170.
[24] This court will not reweigh the evidence in a refugee claim, where the Board's decision is reasonable. Its analysis of the documentary evidence could easily lead to the conclusion that the applicants' return to Bangladesh could be found to be more discriminatory than persecutory. In the present matter, the Board's decision is reasonable, and the application must be dismissed.
JUDGMENT
The application for judicial review is dismissed. No question of general importance is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4788-05
STYLE OF CAUSE: Mohammed Mahburur Rahman, Marlen De Leon Zamarron, Joshua Sanchez, Elisa Jasmin Rahman, Ayra Yasmin Rahman v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT: ROULEAU D.J.
APPEARANCES:
| Mr. David Ellison
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| Mr. David Cranton
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SOLICITORS OF RECORD:
| David M. Ellison Barrister, Solicitor, Notary Public
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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