Date: 20020911
Docket: IMM-4787-01
Neutral citation: 2002 FCT 965
Toronto, Ontario, Wednesday, the 11th day of September, 2002
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
JASWINDER KAUR DHALIWAL
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Convention
Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated August 20, 2001, wherein the applicant was found not to be a Convention refugee.
[2] The Court is satisfied that the applicant was a victim of horrible physical and
mental abuse by her husband, and that the CRDD found the applicant to be a credible witness in this regard.
[3] The Court finds that the applicant's testimony about the continuation of this abuse
was stopped by the CRDD with the stipulation that the CRDD accepts the evidence as credible so that the applicant need not continue with this evidence.
[4] The Court finds that the CRDD then rejected as not credible the applicant's
testimony about the abuse continuing after the divorce in 2000, even though the CRDD had stopped the applicant's testimony about the continuation of this abuse as not being necessary.
[5] After stopping the chronological evidence of abuse, the CRDD held in its
decision:
The panel finds that the claimant was not stalked, attacked or threatened by her husband after 1998 and this hiatus continued to her departure from India in September, 2000, a period of about two years. Therefore, the panel determines that the claimant does not have a well-founded objective fear of persecution by her ex-husband in India today.
[6] It is a breach of the duty of natural justice to stop the applicant's evidence about
the history of the abuse, and then find that the applicant's evidence of continued abuse not credible. The applicant is entitled to a fair opportunity to present her full evidence with respect to a "well-founded fear of persecution". If the applicant had not been stopped in the course of her evidence about the abusive relationship with her spouse, the CRDD may have found the applicant to be a credible witness for events after 1998, since the CRDD accepted the applicant as a credible witness with respect to events between 1995 and 1998.
[7] Moreover, the Court finds that the CRDD decision, that the applicant was a
credible witness with respect to her fear of persecution up to end of 1998, but not a credible witness with respect to her fear of persecution in 1999 and 2000, is irrational.
[8] The applicant's Personal Information Form dated December 12, 2000 specifically
stated that the husband "... was still full of anger and kept threatening me by saying that he would kill me and will not let me marry to anyone else" after the divorce in February, 2000. The viva voce evidence at the hearing confirmed the continuation of the threats. The applicant testified that she decided to flee India because her husband still wanted to kill her because he did not her to marry someone else. As a result, she was afraid to leave her house. The CRDD rejected this evidence as not credible due to inconsistencies in her evidence and the divorce documents. These inconsistencies are understandable since the positions of the parties with respect to the divorce changed from time to time. Moreover, the divorce document is a technical, legal document which the applicant did not understand, and which did not reflect the changing positions of the parties during the divorce proceedings. The Court is not satisfied that the inconsistencies between the applicant's evidence and the divorce decree, constitute a reasonable basis for finding that the applicant's evidence about the continued threats on her life after the divorce to not be credible.
[9] Accordingly, the Court concludes that the applicant is entitled to a new hearing
with a full opportunity to present her evidence about the physical and mental abuse which forms the basis of her claim for Convention refugee status. The CRDD must be satisfied, on the balance of probabilities, that the applicant had a well founded fear of persecution from her husband in the year 2000, the year of her divorce and the year she allegedly decided to flee India because of the persecution.
ORDER
IT IS ORDERED THAT:
1. This application for judicial review is allowed and the matter referred back to a
differently constituted panel of the CRDD for a new hearing. Both counsel agreed that this application does not raise a question of serious general importance. The Court agrees so that no question is certified for appeal.
"Michael A. Kelen"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4787-01
STYLE OF CAUSE: JASWINDER KAUR DHALIWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, SEPTEMBER 10, 2002
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: WEDNESDAY, SEPTEMBER 11, 2002
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Ms. Mielka Visnic
For the Respondent
SOLICITORS OF RECORD: Waldman & Associates
Barristers and Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020911
Docket: IMM-4787-01
BETWEEN:
JASWINDER KAUR DHALIWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER