Date: 20010907
Docket: IMM-6218-00
Neutral citation: 2001 FCT 1002
BETWEEN:
RAJIV MOHAMMED
SHABINA BAGEM
Plaintiffs
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
[1] This is an application for judicial review from a decision on October 30, 2000 by the Refugee Division of the Immigration and Refugee Board ("the tribunal") that Rajiv Mohammed ("the male plaintiff") and Shabina Bagem ("the female plaintiff") are not Convention refugees.
[2] The plaintiffs are citizens of India and alleged a well-founded fear of persecution for their alleged political opinions and religious belief.
[3] In his PIF the male plaintiff indicated that he was of the Muslim religion. He said he had been arrested three times as the police suspected him of complicity with Muslim terrorists. The female plaintiff, for her part, said she was arrested, tortured and raped by the police to find out where her husband was.
[4] The tribunal dismissed the male plaintiff's testimony, which it did not consider trustworthy.
[5] As to the female plaintiff's testimony, the tribunal concluded that she had undergone a difficult experience at some time. However, the tribunal concluded that the female plaintiff's problems had nothing to do with any Convention ground since the female plaintiff insisted she had no problems other than those relating to her husband's situation, and in the tribunal's opinion this was entirely fabricated.
[6] To begin with, the plaintiffs argued that the chairperson of the tribunal demonstrated bias in her comments and her general manner of dealing with their claims.
[7] It is well settled that the applicable criteria in any question of reasonable apprehension of bias is that of an informed person viewing the matter realistically and practically and that the grounds of apprehension must be serious, especially when as in the case at bar an administrative tribunal is in question (see e.g. Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369). Mere suspicion will not suffice.
[8] I consider that an informed person viewing the matter realistically and practically, and having thought the matter through, would not fear that the chairperson of the tribunal had shown bias through her conduct and her statements during the hearing.
[9] After carefully re-reading the transcript of the hearing I note that the chairperson intervened essentially to give the plaintiffs an opportunity to respond to her concerns. It is strange that the plaintiffs are now blaming her for this. In general, it is when a plaintiff is deprived of an opportunity to explain that a departure from the rules of natural justice is alleged.
[10] The plaintiffs further argued that the tribunal had acted arbitrarily in concluding that the female plaintiff was not credible. The tribunal should have determined the female plaintiff's credibility independently from that of her husband.
[11] The plaintiffs appear to have misread the decision. The tribunal's conclusion on the female plaintiff's lack of credibility related exclusively to the circumstances surrounding her sexual attack and did not question the fact that she had undergone a difficult experience. The tribunal wrote the following in this regard:
[TRANSLATION]
As to the testimony of Mr. Mohammed's wife, the tribunal considers that at some point she underwent a difficult experience. Further, following the expert testimony the tribunal again questioned his wife on this point, trying to determine the circumstances which resulted in her suffering depression. The claimant repeated several times that her claim was based on that of her husband. As the tribunal does not regard the latter's testimony as credible, it concludes that the problems which the claimant may have suffered and which are noted in two medical reports (R-15 and R-16) have nothing to do with her husband's situation.
As the female claimant insisted that she had no problems other than those related in her husband's account and as the tribunal concluded that that account had been entirely fabricated, it must conclude that her problems have nothing to do with any Convention ground.
Reasons for decision, p. 3
[12] As the tribunal found that the male plaintiff had never been suspected of terrorism, arrested or brutalized by the police, it was entirely proper for the tribunal to conclude that the female plaintiff's problems were not related to suspicions of terrorism entertained about her husband.
[13] Since the female plaintiff did not establish circumstances linking the sexual attack which she suffered to one of the Convention grounds, the tribunal properly concluded that the plaintiff's problems were not linked to one of the Convention grounds.
[14] Finally, the plaintiffs objected that the tribunal did not consider the expert opinion of Dr. Adler, who prepared a psychological profile of the plaintiff, and his testimony. I do not agree. On the contrary, the tribunal referred to this expressly in its reasons. However, it is clear that Dr. Adler's expert testimony established only one thing, namely that the female plaintiff had psychological problems, and this was recognized by the tribunal. The documentary evidence included nothing about the circumstances of the sexual attack on the plaintiff.
[15] I therefore consider that the plaintiffs did not show that a decisive error of fact was made by the tribunal or that the facts submitted to the latter were unreasonably analyzed, without regard for the evidence before it.
[16] The application for judicial review is dismissed.
|
Danièle Tremblay-Lamer JUDGE |
Montréal, Quebec
September 7, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
|
FEDERAL COURT OF CANADA TRIAL DIVISION Date: 20010907 Docket: IMM-6218-00 Between: RAJIV MOHAMMED SHABINA BAGEM Plaintiff and MINISTER OF CITIZENSHIP AND IMMIGRATION Defendant REASONS FOR ORDER |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-6218-00
STYLE OF CAUSE:RAJIV MOHAMMED
SHABINA BAGEM
Plaintiff
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 6, 2001
REASONS FOR ORDER BY: TREMBLAY-LAMER J.
DATED: September 7, 2001
APPEARANCES:
Jean Fiset FOR THE PLAINTIFF
Marie Nicole Moreau FOR THE DEFENDANT
SOLICITORS OF RECORD:
Jean Fiset FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec
Date: 20010906
Docket: IMM-6218-00
Montréal, Quebec, September 6, 2001
Before: Tremblay-Lamer J.
BETWEEN:
RAJIV MOHAMMED
SHABINA BAGEM
Plaintiff
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
Judicial review of decision by Refugee Division of Immigration and Refugee Board on October 30, 2000 per Louise Robic and Marie-Andrée Lalonde in cases M99-11048 and M99-11049.
(Section 82.1 of Immigration Act)
ORDER
The application for judicial review is dismissed.
|
Danièle Tremblay-Lamer Judge |
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.