Date: 20000706
Docket: IMM-3750-99
OTTAWA, ONTARIO, THIS 6th DAY OF JULY 2000
PRESENT: THE HONOURABLE MR. JUSTICE PIERRE DENAULT
BETWEEN:
RUHENA AKHTER, ARIF MD. MONSUR KHAN,
and ATEF MD. AHBAB KHAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
This application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated June 22, 1999 is allowed. Consequently, the Board's decision is set aside and the matter is referred back to the CRDD for redetermination by a differently constituted panel.
Judge
Date: 20000706
Docket: IMM-3750-99
BETWEEN:
RUHENA AKHTER, ARIF MD. MONSUR KHAN,
and ATEF MD. AHBAB KHAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DENAULT J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") which concluded that the applicants, a mother and her two minor children from Bangladesh, were not Convention refugees.
FACTS:
[2] The principal applicant, aged 28, claimed refugee status in Canada by alleging to have a well-founded fear of persecution in her country of origin because of her membership in a particular social group: women who are victims of spousal abuse. Her two minor sons, whom she represented before the Board, claimed refugee status on the basis of their mother"s story.
[3] On June 20, 1991, when she was 20, the applicant married Altafur Rahman Khan, an independent travel agent who was 9 years her senior. After her marriage, she lived in her in-laws" house with her husband and children. Her husband then became addicted to alcohol and drugs and often had financial problems. During this time, she was physically abused, especially when she refused to ask her family for money.
[4] When the applicant became pregnant in January 1993, she was accused of adultery by her in-laws, who beat her to force her to admit the father"s identity. When her own family learned of this, they submitted the case to the village arbitration council (salish), which authorized the applicant to reside in her parent"s home during her pregnancy1. After the child was born on October 9, 1993, the applicant returned to her in-laws" home with her first son in January 1994. The applicant gave birth to a second son on August 25, 1995. In March 1996, the applicant's problems with her husband and his family intensified to a point where the municipal arbitration council intervened again, warning the husband "to refrain from such behaviour in future2.
[5] The applicant has a brother, Abul Md Shamin, who obtained refugee status in Canada. With his help, the applicant"s father, mother, sister and three brothers all settled in Canada in November 1995. On November 25, 1998, the applicant, with her two sons and her husband, as a result of a decision made by the latter 11 months earlier, left their country for Canada using forged travel documents, arriving here on December 4, 1998. They all claimed refugee status the same day, on the basis of the husband"s political opinions.
[6] The applicant and her family stayed in the apartment occupied by her parents, but her husband left on December 7, 1998, after having mauled everybody and threatened to kill them. Arrested by the police on the next day for committing assault and uttering death threats, the accused later pleaded guilty and was sentenced to two years probation.
[7] On January 22, 1999, a member of the Board granted a request that the applicant"s case and those of her two children, which had been scheduled to be heard with her husband"s, be separated from the husband"s claim. According to the husband"s Personal Information Form (PIF), he has been living in Toronto since February 1999, but there is no indication in the file as to the actual status of his refugee application. The couple is now legally separated.
[8] The Board concluded that the applicant"s fear of persecution was not well-founded. It first found that the applicant still had a grand-mother and maternal uncles in Bangladesh in spite of her allegation that she had no relatives left in her country to protect her. It also found that the applicant's husband's return to Bangladesh was "purely hypothetical" since he is now living in Toronto awaiting for his claim for refugee status to be heard, and noted that the applicant had not had any problems when previously separated from her husband in 1993 and 1996. It further added that a municipal court in the claimant's place of residence had ruled in her favour and protected her in April 1993 and June 1996 when she filed a complaint against her husband as a result of his abusive behaviour. The Board finally determined that the applicant"s claim had no credible basis under section 69.1 (9.1) of the Immigration Act3.
[9] In her memorandum of law and argument and at the hearing, counsel for the applicants raised several important points of argument about this decision of the refugee division. She argued a) that the Board failed to assess her feared violence from her husband's family, if she returned to Bangladesh; b) that it incorrectly applied the standard for well-foundedness of a fear of persecution when it stated that the husband's return to Bangladesh was "purely hypothetical"; c) that it erred when it found that the state protection had been forthcoming to the applicants in the form of the verdicts of the village arbitration council (salih), wrongly described as a "municipal court"; d) that it failed to assess the claim of the minor applicants despite the fact that there was evidence that they, too, had been physically abused by their father. Counsel finally argued that the Board misapplied the test for the finding of "no credible basis" under section 69.1(9.1), and that, in view of the recent judgment of the Supreme Court of Canada in Baker v. Canada4, the Board should have provided reasons for this finding.
[10] Having reviewed the matter through, I am satisfied that in this instance, the Court's intervention is warranted.
[11] Firstly, the Record clearly shows that in both the PIF5, and during her testimony6, the principal applicant stated repeatedly that, having been physically assaulted by her husband's mother and sisters, she feared violence from her in-laws upon her return to Bangladesh. The more so since she has now been separated from her husband in Canada, after he was sentenced to two years probation, having pleaded guilty to committing assault and uttering death threats. Yet, the Board was silent with respect to this agent of persecution. In my opinion, the Board had a duty to assess the applicant's fear of persecution by her in-laws.
[12] In my view, the Board also erred when it found that the return to Bangladesh of the applicant's husband was "purely hypothetical". The now former husband of the applicant is not a national of Canada, he has no valid status in this country except as a refugee claimant which is yet to be decided. In no way can it be presumed that he will eventually be granted refugee status. On the contrary, on the basis that he still has a son in Bangladesh7 and that he now has a criminal record, the Board ought to have inferred that, if not successful in his refugee claim, he might return to Bangladesh. His return to his country of origin, contrary to what the Board said, is not purely hypothetical.
[13] I further find that, in so far as the minor applicants represented by their mother had claims of their own, the Board has committed a reviewable error in failing to assess the children's risk of persecution8, since the evidence revealed that they were beaten by their father both in Bangladesh9 and in Canada10. The Board's conclusions as to the principal applicant's gender-based claim do not necessarily apply to the claims of her children which should have required independent assessment11.
[14] In view of my conclusions to set aside the Board's decision, it will not be necessary to address the other issues raised by the applicant's counsel, nor to certify any of the three alleged serious questions of general importance raised by the applicant's counsel.
[15] This application for judicial review will therefore be granted and the matter referred back to the Commission for a new hearing by a differently constituted panel.
OTTAWA, Ontario
July 6, 2000
Judge
__________________1 Tribunal's Record (T.R.), p. 62.
8 Seevaratnam v. Canada (Minister of Citizenship and Immigration), IMM-3728-98 (May 11, 1999).
11 Chehar v. Canada (Minister of Citizenship and Immigration), IMM-450-96, Nov. 27, 1997.