Date: 20010606
Docket: IMM-4812-00
Neutral citation: 2001 FCT 609
Between:
DEENA ABDULLA YUSUF ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
Muldoon, J. :
1. Introduction
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7, for judicial review of a decision by a one-member panel of the Convention Refugee Determination Division of the Immigration and Refugee Board (the CRDD), dated August 22, 2000, wherein the CRDD determined that the applicant's claim should not be reinstated.
2. Statement of Facts
[2] The CRDD summarized the facts at page 1 of its decision:
The applicant, a citizen of Bahrain, entered Canada as a visitor in November 1996 and made a refugee claim which was referred to the CRDD on February 27, 1997. The prot-of-entry notes on file indicate that on December 31, 1996, a communication from Canadian officials overseas alerted Citizenship and Immigration Canada (CIC) that the applicant's employer had sent a letter via the British embassy stating that her employment had been terminated because she allegedly had used her employer's letterhead and official seals to withdraw sums of money from a number of Bahraini banks without authorization. The Minister requested a copy of the applicant's Personal Information Form (PIF).
A PIF dated March 25, 1997, was filed on April 1, 1997. Her claim to Convention refugee status was based on sexual harassment by a police official who was investigating her about a bank loan. A date for the applicant's hearing was set for September 11, 1997. On September 5, 1997, counsel for the applicant sent a statement form the applicant, signed August 12, 1997, withdrawing her claim to Convention refugee status.
On May 18, 2000, the applicant filed this motion for reinstatement. In her affidavit she alleges that she withdrew her refugee claim because she married a Canadian citizen and expected to be sponsored. Her spouse did not file a sponsorship application and on February 15, 2000, she was issued a conditional deportation order.
[3] The motion for reinstatement was denied by the CRDD on August 22, 2000, because the CRDD held that there were insufficient reasons why the applicant's refugee claim should be reinstated, and that it would not be in the interests of justice to do so.
3. Issues
a. Did the CRDD err when it assessed the applicant's affidavit evidence?
b. Did the CRDD err in concluding that the applicant had not explained how her situation had changed since withdrawing her claim?
c. Did the CRDD err in finding that there was undue delay in making the motion for reinstatement?
d. Did the CRDD make a patently unreasonable finding when it concluded that there were insufficient reasons why the claim should be reinstated, and that it was not in the interests of justice to do so?
4. Submissions
[4] The C.R.D.D stated at page 3 of the decision:
The applicant swears in her affidavit that she withdrew her claim because of her marriage to a Canadian citizen. In the materials before me, counsel for the Minister notes that the applicant has not disclosed the particulars of her alleged marriage to a Canadian citizen, nor has she provided evidence of her marriage in support of her affidavit. The applicant's reply to this is that she has provided "sworn, uncontradicted evidence that she has married a Canadian." The applicant is coming before the CRDD for discretionary relief and bears the onus of placing before the Refugee Division the best evidence possible to support her position. This would include particulars about who she married; when she married; proof of her spouse's status in Canada, and proof of the marriage, all of which should not have been difficult to provide in support of her affidavit. In the absence of such evidence, I do not find sufficient evidence of a marriage to a Canadian citizen.
[5] The applicant submits that the CRDD erred when it held that she did not provide sufficient evidence of a marriage to a Canadian citizen. The CRDD had the applicant's sworn and uncontradicted evidence before it that she had married a Canadian. Such evidence should be presumed to be true unless there are good reasons for doubting it. Although the CRDD may have been entitled to find deficiencies in the applicant's evidence because of a lack of detail, the CRDD had no basis in law for rejecting the evidence in its entirety. This error caused the CRDD the misdirect itself in its further findings.
[6] The Minister submits that the CRDD reasonably required some particulars in support of the applicant's bald assertion that she married a Canadian citizen.
Change in the Applicant's Situation
[7] The CRDD stated at page 5 of the decision:
Although the claimant has not had her claim determined on the merits, she withdrew her claim voluntarily. In my opinion, that was an indication that she was no longer seeking protection. The Applicant has not advanced any additional evidence to explain how her situation has changed since the withdrawal of her claim.
[8] The applicant submits that she did not withdraw her claim because she no longer feared persecution in Bahrain. She withdrew it because her marriage to a Canadian opened an alternate avenue for her to remain in Canada. It was unreasonable for the CRDD to conclude that the claim was withdrawn because the applicant no longer desired the protection of Canada. The CRDD also erred when it held that the applicant had not advanced additional evidence to show how her situation had changed since the withdrawal of the claim. Two significant incidents occurred which changed her situation: her husband failed to sponsor her, and a deportation order was issued against her on February 15, 2000.
[9] The Minister submits that the applicant had retained counsel when she withdrew her claim, and, in the absence of evidence to the contrary, she should have known the implications of withdrawing her claim. The applicant's notice of withdrawal was not conveyed to the CRDD until six days before her hearing. These facts, combined with the applicant's delay in attempting to regularize her status in Canada, were sufficient to support the CRDD's inference that she was no longer seeking protection.
Delay in Applying for Reinstatement
[10] The CRDD stated the following at page 5 of the decision:
The underlying assumption of a withdrawal is that the applicant no longer has a fear of persecution in the country of reference. This could be for any number of reasons such as changed country conditions or sponsorship. However, if the reason for the withdrawal goes awry it is important that the applicant demonstrate that he or she moved quickly to seek reinstatement. This is because once the applicant withdraws his or her claim, the conditional removal order becomes effective and delay could suggest a lack of interest in one's immigration status or a lack of fear at returning to one's country.
The applicant alleges that she withdrew her claim in September, 1997 because of her marriage to a Canadian. She expected him to sponsor her but as of May 15, 2000 (the date of her affidavit), he "has not filed a sponsorship application." Nearly three years after the alleged marriage, she states that a sponsorship has never been filed. There is no suggestion of marriage breakdown. This begs a number of questions not the least of which is why the applicant has not seen fit to seek reinstatement earlier.
I find that there has been delay in bringing this motion. In the absence of any reasonable explanation as to why the applicant would wait so long to seek to reinstate when no sponsorship was filed, I find that there has been undue delay in seeking reinstatement.
[11] The applicant submits that the CRDD's finding that there was undue delay in seeking reinstatement is unreasonable. The pivotal event for the applicant was when received the deportation order on February 15, 2000, after which she applied for reinstatement of the refugee claim within three months.
[12] The Minister submits that it was reasonable for the CRDD to expect the applicant to regularize her status in Canada as soon as possible if she feared persecution in Bahrain. It is unlikely that an individual who is in fear for her life would wait years to seek to regularize her status, and act only once a deportation order is received. Further, the applicant delayed an additional three months after receiving the deportation order. Her attitude could easily be interpreted as one of indifference toward her own case.
Interests of Justice
[13] The CRDD stated the following at page 5 of its decision:
The applicant has not had her claim determined on the merits.
Counsel for the Minister argues that because the Adjudication Division has found that the applicant is a person described in subparagraph 19(1) (c.1) (ii), she will likely be excluded under Article 1F(b) should her refugee claim be re-opened. However, I agree with counsel for the applicant that different legal questions must be answered for exclusion to apply.
With respect to inclusion, however, there are several credibility issues that are immediately apparent. For example, the allegations by the employer in the port of entry notes are at odds with the applicant's narrative and raise issues of criminality.
Although the claimant has not had her claim determined on the merits, she withdrew her claim voluntarily. In my opinion, that was an indication that she was no longer seeking protection. The applicant has not advanced any additional evidence to explain how her situation has changed since the withdrawal of her claim.
Considering the above, I do not find that there are good reasons to hear the claim on the merits. This is not meant to be determinative of the claim - my assessment is focussed solely on whether the evidence before me discloses that it is in the interest of justice to reinstate.
[14] The applicant submits that the CRDD erred when it concluded that there were insufficient reasons why the claim should be reinstated, and that it was not in the interests of justice to do so. The applicant made serious allegations concerning her safety in Bahrain, and she will potentially suffer serious consequences if she is returned to Bahrain, including threats to her physical safety and to her freedom.
[15] The Minister submits that the CRDD findings were reasonable in the circumstances. The applicant is her own worst enemy in this matter. In declining to identify her Canadian husband, she had placed herself in the position of a witness who refuses to testify and so, she could not have been meaningfully cross-questioned. The applicant's counsel gamely argued that she is still fearful of conditions in Bahrain, but her postures in this case suggest otherwise.
Cumulative Effect
[16] The applicant submits that the cumulative effect of these findings amount to an error of law. [Molina v. M.E.I. (1975), 12 N.R. 317 (F.C.C.A.)] However, this Court finds that the C.R.D.D. decided correctly in disposing of the applicant's motion to re-instate her refugee claim.
5. Order Sought
[17] The Minister requests that this application be dismissed. The Court agrees. The application is dismissed. Upon being asked, both counsel opined that there is no question to be certified. "F.C. Muldoon"
Toronto, Ontario
June 6, 2001
Names of Counsel and Solicitors of Record
COURT NO: IMM-4812-00
STYLE OF CAUSE: DEENA ABDULLA YUSUF ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER BY: MULDOON J.
DATE OF HEARING: TUESDAY, JUNE 5, 2001
PLACE OF HEARING: TORONTO, ONTARIO
DATED: WEDNESDAY, JUNE 6, 2001
APPEARANCES BY: Mr. Richard M. Addinall
For the Applicant
Ms. Leena A. Jaakkimainen
For the Respondent
SOLICITORS OF RECORD: Mr. Richard M. Addinall
Barrister & Sollicitor
203 - 1407 Yonge Street
Toronto, Ontario
M4T 1Y7
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20010606
Docket: IMM-4812-00
BETWEEN:
DEENA ABDULLA YUSUF ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER