Date: 20000929
Docket: IMM-4903-99
Between :
SHAHIDA AKTER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated September 15, 1999, determining that she is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The applicant, a citizen of Bangladesh, claims to have a well-founded fear of persecution by reason of her membership in a particular social group: women living in a Moslem country. Specifically, the applicant claims to have been the victim of assaults at the hands of her husband since July 1994.
[3] The applicant's arguments on whether the Board ignored certain evidence and gave sufficient written reasons for its decision must be dealt with together. With respect to the evidence concerning the failure of the police to act on her claims of abuse, the impact of the Bangladeshi Nationalist Party's fall from power and the sexual assault, I do not think that the applicant's argument is supported by the record. The Board mentioned all of this evidence in its reasons, concluding that the police did nothing in September 1995 because they had no proof of the husband's violence, that the applicant's release by the High Court indicated an independent judiciary, and that this independence indicated that it was unlikely that her husband was released as a result of his links to the Awami League.
[4] As for the articles and reports which the Board is accused of ignoring, the jurisprudence indicates that unless the contrary is shown, the Board is assumed to have considered all the evidence presented to it (see Florea v. Minister of Citizenship and Immigration (June 11, 1993), A-1307-91 (F.C.A.)). In this case, I am not persuaded that the Board ignored the documentary evidence submitted by either the applicant or the Refugee Claim Officer.
[5] The applicant further argues that her hearing was unfair because the Board told her that the only issue was whether there were charges against her in Bangladesh. She contends that because of this statement by the Board, her counsel failed to make submissions on the availability of state protection and the existence of subjective fear.
[6] In my opinion, the applicant's argument is without merit. The extract identified by the applicant, which appears at pages 458 to 459 of the Tribunal Record, does not indicate that the Board considered the only issue to be the existence of charges. Rather, it demonstrates the Board's attempt to clarify a specific issue and the latter's concern with the fact that the applicant was not sure whether a case had been filed against her. That this was not the only matter of concern to the Board is evident from an exchange between the Presiding Member and the applicant's counsel at the end of the hearing on August 18, 1999. The Presiding Member informed counsel that, whether the documents with respect to the charges were obtained fraudulently or not, "that is not the issue that's going to make the decision go one way or the other, it's the rest of the claim"1. Counsel responded, "I understand"2.
[7] Moreover, the Act imposes on refugee claimants the burden of demonstrating that they have the right to come into Canada:
| 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
[8] In the circumstances, I am of the opinion that the applicant's failure to make submissions to the Board with respect to the availability of state protection and the existence of subjective fear, elements which go to the heart of the definition of a Convention refugee in subsection 2(1) of the Act, cannot be attributed to the Board.
[9] Finally, considering that the applicant has failed to satisfy me that the Board committed any reviewable error in concluding in the absence of subjective fear, it will not be necessary to deal further with the Board's comments with respect to state protection.
[10] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
September 29, 2000
Date: 20000929
Docket: IMM-4903-99
Ottawa, Ontario, this 29th day of September, 2000
Present : The Honourable Mr. Justice Pinard
Between :
SHAHIDA AKTER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of the Refugee Division of the Immigration and Refugee Board, dated September 15, 1999, is dismissed.
JUDGE
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