Date: 19980727
Docket: IMM-240-98
BETWEEN:
SHANTI PARKASH BHARDWAJ
NEERJA BHARDWAJ and
ANJALI BHARDWAJ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.:
[1] In reaching its December 19, 1997 decision respecting the application by each member of this family for Convention refugee status, the CRDD found that the principal claimant and his family were persecuted as a result of the principal claimant's union activities, and, therefore, at the time the claimants left India they had a well founded fear of persecution. The panel also decided that the change in country conditions since they fled leads to the conclusion that there is no more than a mere possibility that the principal claimant and his family would be persecuted if returned to India.
[2] However, with respect to the eldest daughter, Rashmi, a finding was also made that she had suffered profoundly as a result of the witnessing of the shooting of her mother and, therefore, she meets the requirements contained in s. 2(3) of the Immigration Act.
[3] Rashmi's father, mother and sibling argue that a significant error in fact has been made in the application of s. 2(3) respecting each of them, and therefore, a reviewable error has occurred.
[4] I agree with their submissions. The CRDD decision contains the following finding:
| The claimant's mother, father, and sibling have not presented any evidence that they are suffering enduring effects from this incident to the extent that section 2(3) would apply to them. |
[5] Contrary to this finding, at page 389 of the Tribunal Record, there appears the May 8, 1995 report of Dr. Donald E. Payne who presented to the CRDD a psychiatric evaluation on the mother, Neerja Bhardwaj. At page 2 of the report, the following statement appears:
| It is my opinion that she is suffering from Post-Traumatic Stress Disorder which is consistent with her history of being shot, her ongoing fears of harm to the family in India, and the incident when the police threatened the family with disappearance. Post-Traumatic Stress Disorder is the diagnostic category in the American Psychiatric Association's DSM-IV classification system, which describes the development of characteristic symptoms following a psychologically disturbing event which is outside the range of usual human experience and which is usually experienced with marked fear, terror and helplessness. She continues to suffer from marked symptoms of difficulty sleeping with bad dreams; intrusive memories of her upsetting experiences; increased upset with reminders of the experiences; anxiety with headaches, shaking in her body and an increased startle response; depression with brooding, crying and social withdrawal; poor memory and concentration; increased irritability; and a conditioned fear in Canada of the police and knocks on the door. She is able to hold in much of her emotional distress because of her need to be strong for her family, especially her oldest daughter. |
[6] I find that the CRDD made its decision without regard to the evidence just quoted, and therefore, respecting Rashmi's mother, father, and sibling, under s. 18.1(4)(d) of the Federal Court Act, I set the decision aside and refer their applications to a differently constituted panel for redetermination. The decision respecting Rashmi stands.
"Douglas R. Campbell"
Judge
Toronto, Ontario
July 27, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-240-98
| STYLE OF CAUSE: SHANTI PARKASH BHARDWAJ ET AL. |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 24, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: CAMPBELL, J.
DATED: JULY 27, 1998
APPEARANCES:
Ms. Linda Martschenko
For the Applicants
Mr. Morris Rosenberg
(Ms. Susan Nucci)
For the Respondent
SOLICITORS OF RECORD:
Martschenko Law Firm
359 Goyeau Street
Windsor, Ontario
N9A 1G9
For the Applicants
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980727
Docket: IMM-240-98
Between:
| SHANTI PARKASH BHARDWAJ |
NEERJA BHARDWAJ and
ANJALI BHARDWAJ
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER