Date: 20050623
Docket: IMM-6980-04
Citation: 2005 FC 891
Toronto, Ontario, June 23rd, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
NASRULLA BABUBHAI MAKANI, SALMA MAKANI,
AND KINJAL NASRULLA MAKANI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the principal Applicant, Nasrulla Babubhai Makani ("the Applicant"), applied for refugee protection based on, as a Muslim, fear of Hindu extremists, and gangsters in India.
[2] With respect to the subjective and objective fear underlying the Applicant's claim, in his "Personal Narrative" the Applicant states as follows:
I am an Ismaili Muslim living in Bombay, India. Indian Muslims have always experienced discrimination in the past decade the anti-Muslim sentiment has increased. With the ascension to power of Nationalist Hindu parties and growing Pakistan-India friction. I believe the situation will only get worse. In addition because I am a well to do businessman I am subjected to extortion by criminals. My situation is aggravated because not only is the police department corrupts and susceptible to bribes from extortionists and criminals, but as I am Muslim and the majority of them are Hindu, they will not protect us.
....
Things were relatively quiet until July 2001 when after we came back from a trip from Europe we started receiving threats again. I think that they started trying to extort me again because they realized that I must have money as I could afford to vacation in England. We came back July 14th, 2001. The telephone calls started about 10 days later. At first they asked for money. They were asking for approximately the equivalent of $3500.00. I simply told them that we did not have it. They were not happy.
I paid a lot of money to criminals already. I could not pay anymore. However, I realized that by not paying I was putting myself and my family at risk. I started receiving tow or three telephone calls a month. They threatened to hurt my son and daughter. I knew that if I did not pay eventually we would be hurt.
At the same time the situation for Muslims was deteriorating across India and riots started breaking out once again. Hundreds, if not thousands of Muslims were killed. I started growing weary of the extortion and started to believe that my family would never be safe in India as a [sic] Muslims. I did not want to be subjected to another riot. I did not want to continue paying criminals to keep my family safe.
My wife and me started to plan fleeing the country. I took advantage of the opportunity presented to us on receiving an invitation from my sister in Canada to flee India. Recently in September, 2002 we called my parents who are know [sic] staying in our house. They received more extortion calls.
(Applicant's Application Record, pp. 48-51)
It is clear that the Applicant's claim for refugee protection places a focus on extortion by criminals, but within a context of long standing discrimination against Muslims by Nationalist Hindu parties. It is also clear that the Applicant's claim of subjective fear is with respect to both the focus and the context.
[3] The hearing of the Applicant's claim by the Refugee Protection Division ("RPD") was according to the Guideline7, whereby the Applicant was first questioned by the RPO and then questioned by his own Counsel. The questioning by the Applicant's Counsel sought to elicit evidence with respect to the Applicant's contextual fear. The transcript to the hearing before the RPD clearly establishes that the Applicant was limited in his attempt to give this evidence, resulting in an objection made by his Counsel as follows:
Counsel: Madam Chair, I guess I am not used to the new guidelines where the Board member goes first. I am finding that I am being restricted and my client is being restricted in presenting his full case because I understand from the Board member's point of view and as the final decision-maker, that the only issues that you have are the ones that you have identified and at the hearing you basically want to focus the hearing, this case, the applicant's trip back from Europe in 2001.
My problem is that because this claim is based on the issue between the majority Hindus and the Muslims and the century of religious riots that has taken place in India. It's very hard for me to bring out the entire claimant's claim by only focusing on just the trip to Europe.
PRESIDING MEMBER: You could talk about the Hindu/Muslim problems in your submissions showing the reference to the documents. In terms of the trip to Europe that was because of the re-availment. Now I didn't pursue the re-availment because of the answer I got. I have asked the questions I need to ask. You have had your chance to ask questions.
MR. VITOROVICH [Applicant's Immigration Consultant]: I know but - - -
PRESIDING MEMBER: Sir, sir, I only want one counsel here. So I have noted your objection. You have asked for a mid-hearing conference without the clients here. I don't understand why we are doing this without the claimants here.
COUNSEL: Well the reason being that I would (inaudible) the opportunity to speak to you first to see whether we can go from here for the hearing because I have a problem providing oral submissions to try and ramp up the case when I don't feel the client have [sic] had full - opportunity for a full hearing today because every time I try to go back to ask questions the Board member - you have indicated that you are only interested in just a certain time frame but it's difficult to bring out the entire claimant's claim without delving a little bit into the past.
PRESIDING MEMBER: I understand that, Counsel. I have narrowed the issues as I see fit and I noted your objection. Okay?
(Tribunal Record, pp. 493-494)
[4] With respect to the Presiding Member's "narrowing of the issues", the Applicant makes the following statement in his affidavit in support of the present Application:
It was time for my solicitor to question me. We expected to testify in regard to many issues including the history of the extortion, the overall fear that we faced as Muslims in India, the nature and prevalence of the extortion and gangsters in India, why we were targeted for extortion, the depth of corruption in India, the control the Shiv Sena party has of Guirat, the tie between the state apparatus and the gangsters, the deep anti-Muslim hate by the predominately Hindu majority, the political use of this hate to gain power by the BJP and the Shiv Sena. However, whenever my counsel would try to ask such a question she was interrupted by the Board member, stating that she had already heard this, or that she had read the PIF or that she was not interested. This was very frustrating to us. I began to believe that she had decided the claim before the hearing. After trying to question me for 15 to 20 minutes, my counsel asked for recess. The recess was granted.
[Emphasis added]
(Applicant's Application Record, p. 23)
Counsel for the Respondent did not cross-examine the Applicant on his affidavit, and there is no evidence on the record before me refuting the statement made. A perusal of the transcript of the hearing before the RPD discloses that it is seriously incomplete. As a result, even though the incomplete transcript does not disclose the statement attributed to the Presiding Member that she was "not interested" in his evidence, I have no reason to doubt the Applicant's sworn statement.
[5] On the present Application, Counsel for the Applicant argues that the conduct of the hearing by the Presiding Member was contrary to s.170(e) of the IRPA which states that a claimant must be given a "reasonable opportunity to present evidence, question witnesses, and make representations". On the basis of the record I have just described, I agree with this argument.
[6] In my opinion, Counsel for the Applicant has established that the Presiding Member unfairly limited the Applicant's opportunity to present an essential element of his claim for refugee protection, being the full content of his subjective fear. As a result, I find that the RPD's decision was rendered in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6980-04
STYLE OF CAUSE: NASRULLA BABUBHAI MAKANI, SALMA MAKANI,
AND KINJAL NASRULLA MAKANI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 22, 2005
REASONS FOR ORDER
AND ORDER BY : CAMPBELL J.
DATED: JUNE 23, 2005
APPEARANCES:
Wennie Lee FOR THE APPLICANTS
Marcel Larouche FOR THE RESPONDENT
SOLICITORS OF RECORD:
Wennie Lee
Lee & Company
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT