Date: 20040225
Docket: IMM-2706-03
Citation: 2004 FC 330
CALGARY, Alberta, Wednesday, the 25th day of February, 2004.
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
KARIM NAZARALI JAMAL VIRANI
NIMET KARIM VIRANI
NAHEED KARIM VIRANI
SHAYZMEEN KARIM VIRANI
Applicants
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 Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated March 26, 2003, wherein the IRB determined that the Applicants are neither Convention Refugees nor persons in need of protection. The main issues raised are nexus and whether the Board's findings on credibility are patently unreasonable.
[2] The Applicants are citizens of Tanzania and their claims were heard together. The principal Applicant, Karim Nazarali Virani, claims a well-founded fear of persecution in Tanzania at the hands of Native African gangs because he is a businessman and became of his race being of East Indian origin. He also claims that he is at risk of losing his life at the hands of the same gangsters.
[3] Nimet Karim Virani, the wife of the principal Applicant, and the two children, Sheyzmeen Karim Virani and Naheed Karin Na Varani, claim a well-founded fear of persecution in Tanzania at the hands of the same gangsters as the principal Applicant, for the same reasons, and due to membership in a particular social group, his family. They also claim they are at risk of losing their lives at the hands of the same gangsters for the same reasons as the principal Applicant.
[4] The Applicants testified that since 1995, Native African gangsters had repeatedly demanded money from them, threatened to harm the family if they did not pay or vacate their business and residence, set fire to the family business in January 1996, tried to set their house on fire in June 1998, damaged windows of their home and their car in June 2001, followed the Applicants, and followed and slapped the minor Applicant Naheed Karim Virani. The Applicant Karim Virani stated that he went to the police to register a complaint, but the police refused, saying they would have to investigate the matter first (See PIF and the Applicants' Memorandum of Fact and Law, p. 40).
[5] The Applicants arrived in Canada on June 6, 2002 on Tanzanian passports and Canadian visitors visas to visit family members in Canada. The Applicants claimed they had planned to return to Tanzania in August 2002 but decided to make a claim for protection when they received a telephone call from a friend that their family business and residential house had been taken over by Native African gangsters in Tanzania. The Applicants made their refugee claims in October 2002.
[6] The Board rejected the principal Applicant's claim on the basis that there was no credible or trustworthy evidence to indicate that he would be persecuted for a Convention ground if he were to return to Tanzania. It also found that he would not be subject to a risk to his life or to a risk of cruel and unusual treatment or punishment, and that there were no substantial grounds to believe that his removal to Tanzania would subject him to a danger of torture. The Board made the same findings about the principal Applicant's wife and children for the same reasons.
[7] I find there are two features of the Board's decision which expose reviewable errors.
[8] I agree with the Applicants' argument that nowhere in the written reasons does the Board appear to demonstrate any understanding that the purpose of the persecution complained of by the Applicants was not to obtain money, but, rather, to force the Applicants out of the country because they are Asians and not Africans. The Applicants PIF makes this purpose clear (Tribunal Record, p. 31). In addition, the RCO arguing the case before the Board made this clear by producing an article entitled, "Saboteurs? or Saviours?": The position of Tanzanian Asians" (Tribunal Record, p. 172).
[9] It is also worthy of note that Counsel acting on behalf of the Applicants before the Board argued that the persecution was due to the Applicants' East Indian ethnic origin (Tribunal Record, p. 460).
[10] I find the Board's failure to deal with the precise grounds of the refugee claim is a reviewable error.
[11] The second feature of the Board's decision which exposes reviewable error is contained within the following paragraph:
The family did not pay any money to the alleged gangsters and the alleged gangsters did not take any steps to harm the family. The claimants provided numerous documents to support their applications for Canada Visitor Visas including documents to prove that they operated business. They did not provide any documents to support their allegations that their business was set on fire or that they reported the incident to the police. I do not believe that the alleged gangsters set the family business on fire or attempted to set the family house on fire. I do not believe that the alleged gangsters or anybody slapped the minor Virani or threatened to harm him. I find it implausible that gangsters would continue to threaten to harm the family for non-payment of money or failure to vacate residence and business premises and follow them around from 1996 to 2001, a period of five years, without harming the claimants, despite the fact that they did not comply with the demands of the alleged gangsters. I do not believe that gangsters or anybody threatened to harm the claimants. I find that the family fabricated the allegations to embellish their claim.
[12] With respect to this element of the Board's decision, the Applicants makes the following argument:
17. It is respectfully submitted that the finding of the panel's finding against the Applicants are in any event patently unreasonable. While the panel makes a number of findings against the Applicants, they appear to be contrary to the evidence before the panel. In particular,
(a) The finding of the panel that the Applicants allegation that their business was burned down in 1998 was not credible as they did not provide documents to support this allegation is patently unreasonable for a number of reasons. Firstly, it appears to attempt to juxtapose the Applicants providing documents supporting their operation of a business to the visa officer overseas in 2002 with the provision of documents proving the fire at the family business in 1996 and the attempt in 1998. It is unclear what documents the panel are referring to, or how they might be obtained. Certainly, it is respectfully submitted that the provision of documents to show the ongoing operation of a business to a visa officer are easily obtained, while it is unclear what or how the documents which the panel refers to might be obtained. Secondly, while the evidence of the Applicants is that the police refused to register their complaint, the panel appears to be expecting that the Applicants would be able to provide police records showing the complaint to be registered. It is respectfully submitted that the reasons given are patently unreasonable.
(b) Notwithstanding the evidence given by the Applicants as to the persecution and discrimination against the Asian minority, the panel appears to have rejected out of hand the allegations by the minor Applicant that he was slapped and threatened by gangsters. The panel provides no reason for this and fails to reconcile this with the evidence given regarding the status of Asians in Tanzania.
(c) The find that no harm was visited on the Applicants is similarly against the evidence before the panel. In fact, there appears to be ample evidence that harm was visited on the Applicants, including the burning of their business in 1996, the attempt to burn their home in 1998, the continuing harassment of the Applicants, and the takeover the Applicants' home and business while they were on vacation in Canada. It is respectfully submitted that this is precisely the harm which has been threatened, and is in line with the purpose of those persecuting the Applicants. It is submitted that this finding is similarly patently unreasonable.
[13] I completely agree with the Applicants' argument just quoted.
ORDER
Accordingly, I set aside the Board's decision and refer this matter to a differently constituted panel for redetermination.
"Douglas R. Campbell
J. F. C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2706-03
STYLE OF CAUSE: Karim Nazarali Jamal Virani et al. v. The Minister of
Citizenship and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: February 24, 2004
REASONS FOR ORDER AND ORDER : CAMPBELL, J.
DATED: February 25, 2004
APPEARANCES:
Mr. Stephen G. Jenuth FOR APPLICANT
Mr. Rick Garvin FOR RESPONDENT
SOLICITORS OF RECORD:
Ho MacNeil Jenuth
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT