Date: 20010910
Docket: IMM-6129-00
Neutral Citation: 2001 FCT 1006
BETWEEN:
SAIMA ALAM
MOHAMMED ZAHID
NAHIYAN SAIYARA KHAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of Martine Beaulac, Post Claim Determination Officer (the "officer"), rendered on October 27, 2000, wherein the officer determined that Saima Alam (the "applicant"), her husband and her daughter, were not members of the post-determination refugee claimants in Canada ("PDRCC") class.
FACTS
[2] The applicant is a citizen of Bangladesh who claimed refugee status based on her political beliefs, on December 2, 1998. Her claim was based on a fear of persecution by an Islamic fundamentalist group because of her involvement in a women's rights organization, Ekota. Her refugee claim was rejected on December 22, 1999.
[3] The applicant fears that her security and her life are threatened by Moulana Ahsanullah, a religious fanatic, who opened his own religious centre in 1996 and who denounces the behaviour of women who work and do not respect the diktats of the Koran such as wearing the veil. He interprets the Koran in a way that is unfavourable to women.
[4] The applicant fears that she will be arrested if she returns to Bangladesh because the police is allegedly looking for her. She would not be able to obtain protection from the state because she is a woman and women are not protected in her country as it is an Islamic country where women are treated unfairly, are submitted to men and discriminated against because of the interpretation of the Koran made by Muslim fundamentalists.
[5] The applicant says that in December 1996, she organized a women's help group, the Ekota Mohila Sanganthan, to counteract the influence of Moulana Ahsanullah. She was elected secretary general of the centre. The group met once a week in a room of her house. At the meetings, she would inform women about their rights and encouraged them not to listen to Moulana Ahsanullah.
[6] In March 1997, her group allegedly approached the husbands of a few women that were forced to wear the veil. The results were mixed. In April 1997, the applicant and her group distributed pamphlets against Moulana Ahsanullah and his centre. As a result, stones were thrown on her house. Police did not take any steps after she complained.
[7] The applicant nevertheless participated in a procession despite the threats made by Moulana Ahsanullah. She also alleged that she received threatening phone calls in February 1998.
[8] She also stated that she tried to stop an arranged marriage between a 16 year-old girl and a man chosen by Moulana Ahsanullah. Moulana Ahsanullah did not appreciate the applicant's intervention and put pressure on the men related to women in the Ekota.
[9] In September 1998, the applicant's husband was allegedly attacked by the fundamentalists because he refused to urge the applicant to close her organization. They complained to the police but nothing was done.
[10] On October 1, 1998, Moulana Ahsanullah allegedly declared that the president and secretary general of the Ekota and the secretary who organized the Ekota group were enemies of Islam. The president was attacked and hospitalized. The applicant received phone threats, her house and the houses of two other members were damaged as well as the Ekota office.
[11] Fearing for her life and her family's security, she decided to come to Canada with her husband and her daughter.
ISSUES
[12] Did the officer ignore the evidence that was before her?
ANALYSIS
Did the officer ignore the evidence that was before her?
[13] The applicant submits that her case-specific documentary evidence was dismissed without reasons by the officer, indeed without apparent consideration.
[14] The applicant explains that the attestation by Shahnaz Parvin, research assistant at Ain O Salish Kendra, exhibit P-7, was to the effect that before being employed by Ain O Salish Kendra, Mrs. Parvin was a member of Ekota and worked in its office. The applicant points out that Ain O Salish Kendra is one of the foremost human rights organisations in Bangladesh, has for many years been a primary source for the Immigration and Refugee Board's ("IRB") research directorate, and is the author of a yearly human rights report on Bangladesh which is in the IRB's reference library. According to the applicant, Mrs. Parvin specifically corroborated the facts that the applicant put forward, yet the only mention of this document in the reasons is to group it as "lettres de support de collègues" without further mention or comment.
[15] The applicant submits that the nature and the source of the document are such that it is her strongest piece of evidence, yet it appears to have been completely ignored by the officer.
[16] Regarding exhibit P-7, the respondent notes that Mrs. Parvin writes that she was a member of the Ekota organization and that her affirmations support the applicant's allegations. The respondent submits that it appears from the letter that Mrs. Parvin only stated the fact that she works for Ain O Salish Kendra as incidental information. The respondent observes that the letter is dated July 26, 1999 and further notes that the decision of the Board was dated December 22, 1999.
[17] The applicant explains that several other supporting documents were submitted. There is a letter to the local MP, written by the applicant on October 12, 1998, after the attack on her home and the Ekota office, wherein the applicant requests his protection for the members of Ekota. There is also a police report filed by her husband on September 6, 1998, after he was assaulted by the fundamentalists. A pamphlet dated February 12, 1999 published by the fundamentalist group which was persecuting Ekota was also submitted.
[18] The applicant argues that not only was there no apparent consideration of these documents in the decision-making process, they are not even mentioned in passing by the officer when she lists the documents. While it is natural to cite the evidence which supports one's conclusion, fairness requires that the decider explain why evidence which points the opposite way was not persuasive. Otherwise, the decision is arbitrary.
[19] The respondent contends that the officer did take into account the various letters submitted as can be seen from her decision. The respondent submits that the officer did not ignore the documents but gave them little weight.
[20] On the issue of the documentary evidence submitted by the applicant, the officer wrote at page 3 of her decision:
Je constate que madame n'avait pas produit aucune preuve ou document pour démontrer l'existence du centre de femmes, lors de l'audience à la CISR, malgré qu'il y ait eu 127 membres, selon ses dires et que les réunions hebdomadaires se tenaient dans une chambre de sa résidence. Or, malgré les déclarations à l'effet qu'elle ne pouvait obtenir de documents, elle produit ces derniers avec ses observations, cependant, ils sont datés d'avant l'audience mais n'ont pas été présentés à l'audience. Cet état de faits ne me convainc pas de la véracité de son récit.
[21] The officer also stated at page 4 of her decision:
Dans les observations accompagnées d'une volumineuse documentation sur la situation des femmes au Bangladesh, se trouvent des documents que madame avait déclaré ne pas pouvoir obtenir, lors de l'audience à la CISR, tel que ci-haut mentionné, des photocopies de pamphlet sans date et leur traduction, lettres de support de collègues, divers documents personnels, comme diplômes et certificat de naissance et contrat de mariage. Le reste est constitué de renseignements généraux sur la situation des femmes au Bangladesh, articles de journaux et traductions.
[22] In the section References of the decision, the officer also wrote:
Dossier complet de madame, son mari et leur fille, incluant leur formulaire de renseignements personnels, leurs passeport originaux,
[23] In light of the officer's decision, I cannot conclude that the officer ignored the evidence provided by the applicant. The officer did not refer to all of the documents submitted but I cannot find that she erred in failing to mention them all.
[24] In Singh v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 417 (F.C.T.D.), the Court stated:
Nor will an officer's failure to set out all the facts on which his or her decision was based or to analyse those that might have led him or her to decide otherwise necessarily justify this Court's intervention. In Vitali Moskvitchev v. M.C.I. (IMM-70-95), Dubé J., relying on a decision of the Federal Court of Appeal in Hassan v. M.E.I. (1993), 147 N.R. 317 (F.C.A.), noted the following:
There is a presumption that a tribunal has considered all the documents filed before it. The mere fact that a decision-maker fails to recite all of the evidence when rendering his decision does not necessarily imply that he ignored any evidence if a review of the reasons suggests that he did consider the totality of the evidence. . . .
[25] It appears from the officer's decision that the officer was not convinced that the applicant's story was credible because the applicant had told the Board that she could not obtain any documents but submitted them for the PDRCC class assessment. Furthermore, the documents she could not obtain for the Board predated the Board's decision.
[26] In my view, the officer was entitled to conclude as she did in light of the documents submitted by the applicant and did not err in weighing the evidence.
[27] The applicant further notes that the only reference which the officer made to the case-specific documents was to P-8, purportedly contradicting the applicant's evidence that no one at her workplace knew of her activities in Ekota. Yet the document is dated eight months after she left the country, so it allows for knowledge obtained later. Indeed, the writer states, "Though it was not clear at the moment, we later came to know from Saima Alam that the attackers were the followers of fundamentalist leader Moulana Ahsanullah and Mrs. Saima Alam was the target of this attack."
[28] Rather than contradicting the testimony, the applicant submits that exhibit
P-8 seems to confirm it, as the "moment" is October 6, 1998, referred to by Ms. Sharmin.
[29] The respondent submits that the applicant is giving her own interpretation of the exhibit and that the fact that the officer did not accept the applicant's view does not demonstrate that she erred in her conclusion. The respondent submits that the conclusion of the officer is supported by the document. The defendant further notes that exhibit P-8 is dated July 20, 1999.
[30] Regarding exhibit P-8, the officer stated at page 4 of her decision:
Madame a déclaré au panel que les gens avec qui elle travaillait n'étaient pas au courant de son implication au sein du Ekota, ni son employeur ou ses collègues, malgré qu'elle allègue que sa vie était menacée. Or, avec les observations produites aux fins de cette présente analyse, il y a une lettre de Fahmina Sharmin, datée du 20 juillet 1999 confirmant qu'elle travaillait avec la demanderesse au moment où elle a créé le centre Ekota et qu'elle accompagnait la demanderesse quand elle avait été attaquée en voiture le 6 octobre 1998, ce qui contredit les dires de la requérante à l'effet que personne n'était au courant de ses activités sociales.
[31] The applicant contends that since exhibit P-8 is dated eight months after she left the country, the author of the letter can have obtained knowledge of the applicant's social activities later.
[32] I have reviewed the letter and cannot fault the officer for her conclusion. The letter submitted is silent on when the author learned about the applicant's activities and in fact, tend to make the reader believe that Mrs. Sharmin, the author, knew about the applicant's activities before the applicant left. The letter states:
Saima Alam was deeply involved in a women's assistance organization "Ekota".
[...]
Though it was not clear at that moment, we later came to know from Saima Alam that the attackers were the followers of fundamentalist leader Mowlana Ahsanullah and Mrs. Saima Alam was the target of this attack.
Right after this incident occurred I informed the patrol Police. But they were not able to identify anybody. After this incident Mrs. Saima Alam started to receive death threats over phone. They identify themselves as soldiers of Islam and followers of mowlana Ahsanullah. They announced that they would kill Saima Alam no matter how.
[my emphasis]
[33] It is not possible from this letter to identify exactly when Mrs. Sharmin learned of the applicant's activities but the letter does support the officer's finding.
[34] The applicant also notes that the officer observed that the applicants returned to Bangladesh from their trip to Australia in July 1997, in the face of the danger which awaited them. The applicant however wonders what were the indicators of danger prior to their departure in May 1997. Stones had been thrown at the door of the Ekota office. The applicants submit that if they had claimed a fear of persecution on the basis of stones being thrown at the door of an office, they would have elicited polite smiles at best. Since there was no reason to believe that they were in danger in July 1997, the officer's conclusion is patently unreasonable.
[35] Regarding the applicant's allegation that there was no indication of danger before her return to Bangladesh on July 9, 1997, the respondent submits that the officer's conclusion is reasonable in light of the evidence (PIF, lines 43 to 54).
[36] In the PIF, the applicant states:
In April 1997 we distributed pamphlet against Mr. Ahsanullah and his Khanka Sharif. After that event a group of agitated followers of Mr. Ahsanullah threw stones at our office and damaged the front door. They gave slogans against Ekota. I went to police and asked for action against the attackers and Mr. Ahsanullah. This time police assured me take action. Later on they told me that they did not have definite proof that Mr. Ahsanullah's men carried out the attack. The attitude of police frightened my witnesses and they refused to talk further about the identity of the attackers.
[37] On this issue, I agree with the applicant that the officer cannot fault the applicant because she returned to Bangladesh in July 1997 after her trip to Australia since the indicators of danger prior to the applicant's departure in May 1997 were not sufficient. However, in light of the other reasons given by the officer, this error is not sufficient to warrant the intervention of this Court. The officer gave many other valid reasons for her decision and her conclusion regarding the applicant's return from Australia in July 1997 did not have a significant impact on the conclusion since the other reasons are enough to support the officer's conclusion.
[38] Regarding the officer's conclusion that the applicants had no fear of persecution because the applicant was able to move freely about the city in October and November 1998, because she went to three embassies to get visas for the family, the applicant submits that trips to embassies to get visas do not constitute moving freely about the city, since they were short, direct trips to arrange departure, not a stroll along the boulevards. Furthermore, the applicants had moved out of their home and neighbourhood. No issue was ever made of internal flight.
[39] The applicant submits that the officer's conclusion, that her story falls like a house of cards because she obtained her United Kingdom visa on October 8, before her decision to leave the country, ignores the evidence of the series of incidents which led her to leave her country.
[40] The applicant submits that if it were not for the events from February 1998 to October 7, 1998, then the obtaining of the United Kingdom visas on October 8, 1998, before the events of October 10, 1998, would appear inconsistent with the stated basis for the fear of persecution. However, if one considers those events, especially the fact that the prior events had led the family to leave their home the day before the United Kingdom visas were obtained, then there is no inconsistency.
[41] The respondent contends that the applicant is challenging some of the conclusions made by the Board, even though the decision has already been brought before the Court unsuccessfully. Furthermore, the applicant did not challenge the conclusions of facts made by the Board.
[42] I agree with the respondent that the applicant is challenging some of the Board's conclusions. In any event, I believe that the officer's conclusion on the applicant's intentions is consistent with the applicant's evidence. The evidence is that the events of October 10, 1998 prompted the applicant's decision to leave the country. This contradicts the fact that the applicant and her family obtained their United Kingdom visas on October 8, 1998. Therefore, the officer's conclusion that this demonstrates that the applicant had the intention of leaving before the events on October 10, 1999 stands.
[43] I am satisfied that the officer considered all the evidence and that she did not err in rending her decision. Therefore, this judicial review application is dismissed.
[44] Counsel for the applicant suggested a question for certification:
What is the standard of review of a decision on "PDRCC" class?
[45] Counsel for the respondent opposed that question on the basis that this question has already been answered by decisions of this Court, and also on the fact that the officer has not made any error.
[46] In my view, this question is not a question of general importance and I agree with counsel for the respondent that this question has already been answered. Therefore, no question will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 10, 2001