Date: 20040831
Citation: 2004 FC 1190
Ottawa, Ontario, the 31st day of August 2004
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
SUME HOSSAIN KHAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] To a trier of fact, there is a point at which nothing makes sense, no matter whence one came or who, in fact, hears. Credibility, or inherent logic, in and of itself, requires, if not a ring of harmony, then, at least, not a complete cacophony, causing discordance of that inherent logic.
JUDICIAL PROCEDURE
[2] This is an application for judicial review, filed pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,[1] of the decision of an Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated July 16, 2003. In its decision, the Board denied the Applicant's claim to "Convention refugee" status pursuant to section 96 of the IRPA and determined that she did not face a reasonable chance of cruel and unusual treatment or punishment, a risk to life, nor a danger of torture, pursuant to section 97 of the IRPA.
BACKGROUND
[3] The Applicant, Sume Hossain Khan, is a 25 year old citizen of Bangladesh. She claims Convention refugee status on the basis of her membership in a particular social group, namely, women facing gender persecution.
[4] Ms. Khan alleges that in 1998, during her first year in college, she was approached by Suvroto Bian, the leader of a notorious criminal gang who expressed his admiration for her. He allegedly told her that she belonged to him and threatened to abduct her if she did not capitulate quickly. He then began to constantly follow her around and press his demand for her to marry him.
[5] Ms. Khan's mother grew fearful for her safety and decided that the best way to dissuade Suvroto Bian was for Ms. Khan to marry someone else. A marriage was therefore arranged between Ms. Khan and her cousin in August, 1999.
[6] Suvroto Bian was imprisoned for several months on unrelated matters soon after Ms. Khan's marriage. After Suvroto Bian's release, he learned of Ms. Khan's marriage and became angry. He tried to intimidate Ms. Khan's husband into divorcing her. This tactic failed.
[7] Ms. Khan states that in October 2000, she was taken by force by Suvroto Bian and his group to a house where she was confined for three days. She further contends that during this time she was physically assaulted and raped by Suvroto Bian. Ms. Khan escaped through a window on the third day when Suvroto Bian was away. Although the police had been informed of her abduction, they did not respond.
[8] Ms. Khan then spent 13 days in hospital to recover from her ordeal. After she was released from hospital, she went to live with her aunt in Uttra instead of going home. This was done in order to keep Suvroto Bian from knowing her whereabouts.
[9] Ms. Khan's family, including her husband, were afraid for her safety, and thus decided to get her out of Bangladesh. Due to the high cost of engaging a broker, they were unable to afford to get both her and her husband out of the country. Ms. Khan thus left alone in September 2001.
[10] Ms. Khan arrived in Canada on September 9, 2001, but did not make a claim until November 21, 2001.
DECISION UNDER REVIEW
[11] The Board accepted that Ms. Khan's claim established a nexus to the Convention ground of women fearing gender related persecution.[2]
[12] The Board noted many inconsistencies in her testimony about what, exactly had happened to her, who in her family had been attacked by Bian, and whether she would have been safe at her aunt's house, were she to return to Bangladesh.[3]
[13] The Board found it implausible that the Applicant would not have been able to obtain medical records from the time she spent in hospital. It furthermore found it implausible that the Applicant's husband would have supported her and helped her leave Bangladesh, but then would have become ashamed of her and divorced her.
[14] The Board did not accept the Applicant's explanation as to why she waited 72 days to make a claim for Convention refugee status, and drew a negative inference from the delay.[4]
[15] The Board found that there was state protection available to her, and that the Applicant did not avail herself of it.[5]
[16] The Board considered the Chairperson's Guidelines regarding women refugee claimants fearing gender-related persecution, but found that, as the Applicant was not credible, the claim did not warrant the application of the guidelines.[6]
[17] Having found that the Applicant was not credible, the Board found that she was not a Convention refugee nor a person in need of protection pursuant to paragraph 97(1)(a) or (b) of IRPA.
ISSUES
[18] Did the Board commit a reviewable error in its evaluation of Ms. Khan's credibility and the plausibility of her testimony?
[19] Did the Board misconstrue the documentary evidence before it in regard to the risk of violence to women in Bangladesh?
ANALYSIS
Did the Board commit a reviewable error in its evaluation of Ms. Khan's credibility and the plausibility of her testimony?
[20] The Board noted discrepancies between the equivalent to the Port of Entry interview notes and the Applicant's Personal Information Form (PIF) and oral testimony, and drew a negative inference from this. The Applicant submits that she explained during the hearing that this was a mistake made by the interpreter at the interview.
[21] The Respondent points out, however, that the transcript demonstrates that the Applicant was never asked about the discrepancies during the hearing by counsel or the Board, and she did not explain the discrepancies in any way. The Board did not err in drawing the negative inference.
[22] The Board found the Applicant not credible also partially because her husband had attested an affidavit of Divorce in April 2002, but, although she was aware of the affidavit when she wrote her PIF in June 2002, Ms. Khan stated that she was married.
[23] Ms. Khan submits that this finding was in error. During the hearing, Ms. Khan explained to the Board that she had in fact been married at the time of her filing the PIF. According to Ms. Khan, her divorce was not finalized until much later; there was, therefore, no inconsistency, according to her, in the evidence.
[24] The Court does not accept this submission. The transcript of the hearing reveals that the Applicant testified that she was divorced from her husband in April 2002. Furthermore, the Applicant explained that she had stated differently in her PIF because she wanted to speak with her husband about the divorce, precisely as the Board noted in its reasons.[7]
[25] The Applicant furthermore submits that the Board found that the Applicant was not credible with regards to her testimony, that she stayed at her aunt's house after she escaped from Bian.
[26] This submission misinterprets the Board's finding. During the hearing, Ms. Khan was asked why she did not have hospital records to support her claim. She explained that the family she had left there, namely her aunt and her mother-in-law, would not help her out; she did not get along with her mother-in-law, and her aunt was too afraid of Bian to help her.[8] The Board found it implausible that the Applicant's aunt would have felt safe enough to house Ms. Khan for several months after Ms. Khan's escape, but would then later, once Ms. Khan was in Canada, be too afraid to send medical documents to Ms. Khan. This finding is not patently unreasonable.
[27] Ms. Khan also takes issue with the Board's determination that her description of her husband's reaction to her abduction and rape was implausible. The Applicant does not, however, explain precisely how the Board erred. The Board found it unlikely that the Ms. Khan's husband would be supportive at one moment and then, at the next, say that he is ashamed of the Applicant and divorce her. Again, the Board did not commit a reviewable error in coming to this conclusion.
Did the Board misconstrue the documentary evidence before it in regard to the risk of violence to women in Bangladesh?
[28] The Applicant submits that the Board did not assess whether her fear of persecution was serious as based on the country conditions of people similar to her.
[29] The Respondent submits that the Board did not err in its assessment of the documentary evidence. Although the evidence may support the Applicant's claim that harm of the type, alleged by her, has occurred and occurs in Bangladesh, the Board did not ignore this evidence, nor does it rehabilitate the credibility concerns that the Board had.
[30] The Respondent further submits that the Board correctly found: "Even allowing that there was objective evidence pointing to targeting of women in the manner alleged by the claimant, evidence of an objective basis does not remove the claimant's burden to prove she has a subjective fear that she will be persecuted."[9]
[31] The Board did assess whether there was adequate state protection available to the Applicant. In its decision, the Board stated:
According to documentary evidence submitted on the claimant's behalf by counsel, several legal measures have been adopted beginning in 1983 to safeguard women's legal rights. The Cruelty to Women ordinance of 1983 prescribes serious penalties including life imprisonment and the death sentence for crimes such as kidnapping and rape. The document however states that in spite of these provisions, loopholes in existing laws, lack of proper implementation and the weak commitment of law enforcement agencies are major obstacles. In the latter respect, this report runs counter to that in other more recent objective documentary evidence also disclosed by counsel.[10]
The "more recent objective documentary evidence" referred to by the Board is the U.S. Department of State Report, 2002 (the "DOS Report").
[32] The problem with this statement, however, is that the DOS Report did not, in fact, contradict other documentary evidence which indicated that laws adopted to protect women are not generally enforced. The DOS Report, instead, also came to the same conclusion.[11] Thus, the Board erred by misreading the documentary evidence before it.
[33] Nevertheless, this error was not material. The Respondent correctly submits that it is not generally sufficient to refer to general conditions in country reports in order to support a positive determination of the refugee claim, as they are not specific to the claimant. A link must be made between those general country conditions and a specific likelihood of harm to a claimant if she or he were to return to that country.[12] In this instance, because Ms. Khan was fully disbelieved by the Board, there is no link between her and the documentary evidence before the Board.
CONCLUSION
[34] The application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that:
1. The application for judicial review be dismissed;
2. No question be raised for certification.
"Michel M.J. Shore"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6706-03
STYLE OF CAUSE: SUME HOSSAIN KHAN v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 24, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Shore
DATED: August 31,2004
APPEARANCES:
Ms. Prevandu K. Sapru FOR THE APPLICANT
Ms. Rhonda Marquis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Prevandu K. Sapru FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
[1] S.C. 2001, c. 27 ("IRPA").
[2] Applicant's Application Record, Decision of the Board, at p. 10.
[3] Supra at pp. 11-16.
[4] Supra at pp. 16-17.
[5] Supra at pp. 18-21.
[6] Supra at 22.
[7] Tribunal Record, Transcript of the Hearing, at pp. 188-189.
[8] Supra at pp. 205-206, 217-218.
[9] Decision of the Board at p. 21.
[10] Supra at p. 19.
[11] Tribunal Record, DOS Report at p. 169.
[12] Sheikh v. Canada (M.E.I.), [1990] F.C.J. No. 604 (C.A.); Rahaman v. Canada (M.C.I.) 2002 FCA 89 at para. 29; Waheed v. Canada (M.C.I.), 2003 FCT 329 at para. 43.