Date: 20010530
Docket: IMM-5171-99
Neutral Citation: 2001 FCT 555
Ottawa, Ontario, this 30th day of May, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
NASIMA KHATUN
PRATTASHA KHATUN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review, brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision dated September 22, 1999, of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board. In its decision, the CRDD determined the applicants not to be Convention refugees.
[2] The applicants seek an order setting aside the above decision and referring the matter to a newly constituted Board for redetermination.
Background Facts
[3] The applicants, Nasima Khatun (the "principal applicant") and her minor daughter, Prattasha Khatun, are citizens of Bangladesh who entered Canada on December 17, 1997. The applicants made claims for Convention refugee status on the following day. The applicants based their claim on a well-founded fear of persecution in Bangladesh on the grounds of membership in a particular social group (widows in Bangladesh for the principal applicant and family for her daughter).
[4] The principal applicant's husband owned a transportation business comprised of a truck and three buses in Bangladesh. The principal applicant and her husband resided with his parents. The principal applicant alleges her husband disappeared on February 21, 1997 and presumes he is dead. For a short time after his disappearance the earnings from her husband's business were paid directly to her. However, the principal applicant alleges her father-in-law and brother-in-law then began to receive the earnings of the business. Arguments between her and her in-laws ensued whenever she inquired about the money from the business. The principal applicant claims to have been burned and subjected to physical violence by her in-laws.
[5] On one occasion, the principal applicant went to the police station to identify whether a body found was her husband. It was not. The principal applicant alleged that on her way home from the police station some people threatened her and threw her daughter to the ground. She felt her in-laws were behind this incident. The principal applicant claimed her brother-in-law began to make unwelcome advances towards her, and proposed marriage in October/November, 1997, at which time she had moved in with her father. She denied his proposals and alleges that he then threatened to throw acid in her face as a result. The principal applicant alleges that after she came to Canada, her brother-in-law beat her father in an attempt to extract information about her whereabouts. She claims her father died a few days later as a result of this beating.
[6] The applicants' hearing began April 7, 1999, and was then adjourned until June 9, 1999. The claims were heard by panel members Sotto and Prabhakara. Two days after the hearing, the applicants' counsel brought a motion to reopen and requested a hearing de novo. The applicants alleged a reasonable apprehension of bias on panel member Sotto's behalf in that he (a) questioned the principal applicant in a prosecutorial "cross-examination" style inconsistent with his role as an impartial decision-maker; and (b) questioned the principal applicant in an unfair manner when he came off the bench, stood over the claimant and questioned her. In a September 22, 1999 decision, the motion for a de novo hearing was dismissed and the claims for Convention refugee status were rejected.
[7] The Board concluded that the principal applicant lacked credibility on three grounds: (1) she stated her husband disappeared in 1997, but her daughter's birth certificate from 1995 lists the father as "Late Ataur Rahman."; (2) the envelope purported to contain a letter from her sister dated February 28, 1999 stating that her brother-in-law had beaten and harassed their father, shows it was posted on February 13 or February 18, 1999; and (3) she stated she could not understand a stranger she met upon arrival in Canada because he spoke English, however, during questioning she said she could not understand him because he spoke Hindi.
[8] The Board then states at page 13 of its decision:
Setting the issue of credibility aside for a moment, the panel finds that the claimant's alleged fear of persecution at the hands of her in-laws, particularly her brother-in-law, does not fall within the ambit of the Convention refugee definition. The claimant's evidence is that the interest of her in-laws lies in the fact that she is now the legal owner of the properties and the bank accounts left by her husband when the latter died. The panel finds no evidence that the claimant's in-laws wanted to divest her of her economic fortune not because of any of the five Convention grounds but simply because her in-laws were coveting her financial assets. The panel determines, on the other hand, that the claimant's in-laws were committing a crime. The panel notes that, in several rulings by the Federal Courts of Canada, criminality – no matter how abhorrent the act might be – does not constitute grounds for persecution within the meaning of the Convention refugee definition.
[9] The Board states the following with respect to state protection on the same page:
In the alternative, even if the panel was to accept that the harm inflicted on the claimant by her in-laws falls within the ambit of the Convention refugee definition, it still would have found that it is objectively reasonable to expect her to have sought the protection of the state. [...] Furthermore, the panel notes that, according to the claimant's testimony, the primary agent of her alleged persecution – her brother-in-law – has a long history of criminality which the state had not condoned. Apparently, he had been arrested, sentenced, and penalized several times. The claimant testified that she was aware that there exists a justice system in Bangladesh that penalizes culprits like her brother-in-law. She had access to what seem [sic] to be a significant bank account which she could have easily used to hire a lawyer. However, instead of doing that, she decided to come to Canada on the notion that she could find a job here or, failing that, easily receive financial assistance from the Canadian government.
Issues
[10] 1. Did the panel breach the rules of natural justice and was a
reasonable apprehension of bias raised by the actions and behaviour exhibited by presiding board member Sotto?
2. Did the Convention Refugee Determination Division err in
law in putting the motion to reopen the hearing before the very panel that was alleged to have breached the rules of natural justice and to have raised a reasonable apprehension of bias?
3. Did the panel err in law in its determination that the
applicant, Nasima Khatun was not credible?
4. Did the panel err in law in its determination that there was
no nexus between the applicants' fear of persecution and the grounds as stated in the definition of Convention refugee?
5. Did the Convention Refugee Determination Division err in
law in determining that there exists state protection in Bangladesh for the applicants?
Applicants' Submissions
1. Reasonable Apprehension of Bias
[11] The applicants cite the following passage from Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 850:
It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; Old St. Boniface, supra, at p. 1192. The context here is one where immigration officers must regularly make decisions that have great importance to the individuals affected by them, but are also often critical to the interests of Canada as a country. They are individualized, rather than decisions of a general nature. They also require special sensitivity. Canada is a nation made up largely of people whose families migrated here in recent centuries. Our history is one that shows the importance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world. Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference.
The applicants suggest a similar analysis is applicable to members of the CRDD. Where a claim is made by a woman for reasons based on her gender, the applicants argue enhanced sensitivity is required in the procedure adopted by the board members.
[12] The applicants submit the panel member's actions (considering this was a refugee hearing specifically based on gender persecution) would lead a reasonable person to conclude that he acted in a hostile manner and would not decide fairly. When the panel member left the dias to approach the principal applicant she looked at her friend, at which time the panel member said "Please don't look at your friend" and "If you do that again I will send your friend out of the hearing room." The principal applicant states this reaction of looking at her friend is indicative of the fear she felt when the panel member took this action.
[13] The applicants argue it was open to panel member Sotto to present documentary evidence by requesting counsel or the Refugee Hearing Officer (the "RCO") to show the document. Panel member Prabhakara had the document in hand and the applicant acknowledged it before panel member Sotto began his line of questioning. Therefore, there were alternative ways, in the applicants' submission, for panel member Sotto to present this document. The applicants offer Kumar v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 14 (F.C.A.) for the proposition that there exists a breach of natural justice where a board member exhibits intrusive and intimidating behaviour during a hearing.
[14] The Act allows for the RCO to "call and question any person who claims to be a Convention refugee and any other witnesses, present documents and make representations." Thus, the applicants submit it would have been more appropriate for the RCO to present the document and question her. Their counsel in fact so requested 4 or 5 minutes after panel member Sotto left his seat to present the document. The applicants submit this can also be considered an objection to the panel member's action within a reasonable time.
[15] The applicants cite Villalobos v. Canada (Minister of Citizenship and Immigration) (1999), 168 F.T.R. 201 (F.C.T.D.) where this Court held at page 209:
A request that a motion for recusal of a decision-maker be heard orally may not be treated lightly. In my view, it is very difficult for the person considering the motion to fully perceive the concerns of counsel, whatever the basis of written submissions, until the motion is heard with reference to legal authorities, and orally if counsel requests.
2. Motion to Reopen
[16] It is submitted that the Board erred in law in deciding the motion to reopen before a differently constituted panel without hearing the motion orally, as requested by the applicants. Furthermore, the applicants contend that by acting as an investigator of the allegations against himself, by making findings of fact about his own actions, and by deciding the motion and claim adversely to the applicants, panel member Sotto's actions give rise to a reasonable apprehension of bias. McBain v. Canada (Canadian Human Rights Commission), [1985] 1 F.C. 856 (F.C.A.) is cited in support of the above argument.
[17] The Board comments at pages 13 and 14 of its decision that instead of remaining in Bangladesh, the claimant "decided to come to Canada on the notion that she could find a job here or, failing that, easily receive financial assistance from the Canadian government." Such a comment gives rise to a reasonable apprehension of bias in the applicants' submission. The applicants submit their evidence with respect to the availability of government assistance was given in the context of explaining why the principal applicant (or any woman) could not live without assistance of family members in Bangladesh. This is also relevant to the availability of an internal flight alternative according to the applicant. As the principal applicant was responding to the question "how is it different than Bangladesh moving away from your relatives," it is apparent that she was attempting to explain the difference between Canada and Bangladesh. The principal applicant submits she clearly stated that prior to leaving Bangladesh, she did not know if any support was available from the Canadian government, and that she did not know she could work in Canada. The principal applicant argues that by ascribing the ill intent of abuse of the Canadian immigration and welfare systems to her decision to flee Bangladesh, a reasonable person would conclude, upon the application of the appropriate test, that the Board would not decide the claim fairly.
3. Credibility
[18] Birth Certificate
The principal applicant obtained the birth certificate of her daughter after leaving Bangladesh and could not explain why the word "late" preceded her husband's name on the document. The applicants submit it is plausible that the word was added to the document subsequent to its preparation. The principal applicant next argues there is no justification for the Board's conclusion that she was "purposely misleading" it by not initially informing the panel that she asked her sister for an explanation as to the usage of "late" on the document. Given the nature and effect of panel member Sotto standing over her at this time, the principal applicant submits her explanation that she did not know what to say was reasonable at the time.
[19] Date of Letter
The applicants submit there are three stamps superimposed on the postage stamps of the envelope and that the dates on them are illegible. Thus, the applicants contend the evidence does not support the conclusion drawn by the Board. In any event, the applicants submit the Board is taking a microscopic view of the evidence. In Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168, the Federal Court of Appeal held at page 169 that:
While the Board's task is a difficult one, it should not be over-vigilant in its microscopic examination of the evidence of persons who, like the present applicant, testify through an interpreter and tell tales of horror in whose objective reality there is reason to believe.
Similarly, the applicants argue that where physical evidence presented in support of a claim is in dispute at a hearing, the Board should not be over-vigilant in making its determination. The principal applicant testified that she received other letters from her sister, therefore it is plausible that the envelopes were misplaced or confused. Thus, the principal applicant submits the Board erred in concluding that her evidence about her father's death was "concocted" to "bolster a very weak claim."
4. Encounter with Stranger
[20] The principal applicant further submits the transcript of the hearing shows she did not initially understand the man in the Toronto airport because he first spoke English, to which she responded in Hindi. The principal applicant's testimony was credible. The applicants submit the Board has a duty to consider all the evidence in making a credibility determination, but it erred by only selecting portions of the evidence to base its decision on. Owusu v. Canada (Minister of Employment and Immigraton), [1989] F.C.J. No. 33, A-1146-87 (January 31, 1989) (F.C.A.) is offered in support of this argument.
5. Nexus
[21] The applicants submit the Board erred in failing to consider the ground on which they were making their claim. The Board found there was no nexus to the Convention refugee definition because the principal applicant's fear was of her brother-in-law divesting her of her property (a criminal act). In fact, as the principal applicant expressed at the hearing (and the documentary evidence substantiates), she actually feared that her brother-in-law would throw acid in her face.
[22] The principal applicant stated both in her Personal Information Form and at the hearing that her brother-in-law threatened to throw acid in her face if she did not marry him. The applicants submit the Board made no mention of this in determining the nexus of the claim. The applicants contend the documentary evidence clearly shows that acid attacks are prevalent in Bangladesh, particularly against women refusing sexual advances or marriage proposals. The applicants cite various reports attesting to this. The principal applicant submits the nexus of her fear is to the ground of "membership in a particular social group," specifically, as a woman in Bangladesh who refused a marriage proposal by a man who threatened to throw acid at her. She is also a victim of domestic abuse and violence at the hands of her in-laws. The principal applicant submits her gender clearly falls within the definition of a "particular social group," and cites Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 in support thereof.
[23] The principal applicant submits the desire to have her property was part of the motive behind the beatings by her in-laws, and her brother-in-law's desire to marry. However, she submits her in-laws were controlling because of her gender prior to her husband's disappearance, and that the motive behind her brother-in-law's threat was the rejection of his marriage proposal. Women subject to domestic violence in their country of origin have been found by this Court to be members of "a particular social group": Narvaez v. Canada (Minister of Citizenship and Immigration), [1995] 2 F.C. 55 (F.C.T.D.); Diluna v. Canada (Minister of Employment and Immigration) (1995), 29 Imm. L.R. (2d) 156 (F.C.T.D.) and Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 (F.C.T.D.). Thus, the applicants submit the Board erred in not specifically addressing the issue of her gender-based persecution in its reasons. Mohamed v. Canada (Secretary of State) (1994), 73 F.T.R. 159 (F.C.T.D.) is cited in support of this submission.
6. State Protection
[24] The applicants submit the Board ignored relevant evidence in finding no "clear and convincing evidence that the state is unable to protect her from the harassment and mistreatment that are inflicted on her by her in-laws." The applicants contend that although a state apparatus exists in Bangladesh to protect victims of domestic abuse and women threatened with acid attacks, there is clear and convincing evidence this protection is not forthcoming in practice. A volume of documentary evidence to support this contention was submitted to the Board according to the applicants. The general assurance of the Board that it considered all the evidence is insufficient.
Respondent's Submissions
[25] Standard of Review
The respondent submits the appropriate standard of review in this case is whether the Board acted in a patently unreasonable manner. Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.); Jahan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 987, IMM-3434-99 (June 22, 2000) (F.C.T.D.); and Cihal v. Canada (Minister of Citizenship and Immigration) (2000), 257 N.R. 62 (F.C.A.) are offered in support of this submission.
[26] Bias
The respondent submits there is no evidence that the applicants raised an objection to the Board on the grounds of apprehension of bias or lack of independence or impartiality at the hearing. Therefore, the applicants waived their right to subsequently raise such an objection. The respondent relies upon Re Human Rights Tribunal v. Atomic Energy of Canada Ltd., [1986] 1 F.C. 103 (F.C.A.). In the alternative, the respondent submits the applicants were afforded a hearing which complied with the principles of natural justice.
[27] The respondent argues the Act allows for the informal hearing of refugee claims whereby the legal and technical rules of evidence are not binding. For the purposes of a hearing, the Board is empowered to issue summons to any person, administer oaths, examine any person on oath, and "do any other thing necessary to provide a full and fair hearing." The Act clearly allows for Board members to ask questions of the claimant to enable it to properly apprise itself of his or her case. The respondent cites four decisions in support of this submission. Board members, in the respondent's submission, have the right to ask questions to clarify the evidence and they must be given latitude in such questioning.
[28] The respondent submits the panel member did not act unreasonably in asking the principal applicant not to look at her friend again before answering questions. He was trying to ensure that she answered the questions herself without possibly being coached. To bring the daughter's birth certificate to the principal applicant so it can be looked at together and briefly standing there while asking questions about it, does not result in a reasonable apprehension of bias; particularly since the applicants' counsel did not immediately object to the panel member doing so (who then returned to his seat when eventually requested to do so by counsel).
[29] The statement "decided to come to Canada on the notion that she could find a job here or, failing that, easily receive financial assistance from the Canadian government" is just a recitation of the obvious facts. This statement was made in specific reference to a choice of conduct selected by the principal applicant rather than using her wealth to pursue her brother-in-law through the judicial system. Thus, this statement is not indicative of bias. The respondent also submits it was proper for the original panel to determine whether a reasonable apprehension of bias existed, particularly as the decision is thereafter subject to judicial review by this Court.
[30] The respondent submits the Board did not commit a reviewable error in finding the principal applicant not credible on key aspects of the claim, nor did it base its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it. The applicants are, according to the respondent, essentially challenging the weight the Board assessed to the testimony of the principal applicant in the context of the documentary evidence submitted. Questions of credibility and weight of evidence are within the Board's jurisdiction as a trier of fact. The respondent offers the following statement of Thurlow C.J. in Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346, A-987-84 (May 29, 1986) (F.C.A.):
In our opinion the points argued by counsel for the applicant raise only questions of credibility and of the weight of evidence and afford no legal basis upon which this Court could properly interfere with the decision of the Immigration Appeal Board.
[31] With respect to the alleged acid threat made by the principal applicant's brother-in-law, the respondent argues it is not a reviewable error of law if written reasons do not summarize all of the evidence introduced. As noted by the Federal Court of Appeal in Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 at 318, "The fact that some of the documentary evidence is not mentioned in the Board's reasons is not fatal to its decision."
[32] The respondent submits it was open to the Board to conclude that no reasonable explanations were given with respect to the principal applicant's encounter with a stranger at the airport and her testimony about whether he spoke Hindi or English. Even if the Board misinterpreted her on this point (which is not admitted but denied), the respondent argues in any event it was not central to the panel's negative credibility determination.
[33] Test for Convention Refugee
The Board's reasons indicate it considered the subjective element of the claimed fear of persecution and considered whether that subjective fear was objectively well-founded and grounded in the definition. In failing to demonstrate a link, it was reasonably open to the Board to find that the applicants had failed to meet the test. Although subjective fear may be present, if it is not grounded in the definition of Convention refugee and it is determined that there is no reasonable chance that the applicants will be persecuted on return for a Convention reason, the applicants' fail to meet the test. Ward, supra is cited in support of this submission.
[34] Absent a complete breakdown of state apparatus, the respondent submits it is generally presumed that a state is able to protect a claimant. A claimant must provide clear and convincing confirmation of his or her state's inability to protect. According to the respondent, the record indicates the Board was fully aware of the principal applicant's fear of her brother-in-law, but it reasonably concluded that the state was ready and willing to protect her from him if she invoked their protection. Additionally, the record indicates the Bangladeshi state has not hesitated in the past to convict the brother-in-law of various criminal offences (of which a threat to harm someone would undoubtedly be one).
Relevant Statutory Provisions
[35] The definition of "Convention refugee" under the provision of the Immigration Act is:
| 2(1) "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
« réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
|
[36] Issue 1
Did the panel breach the rules of natural justice and was a reasonable apprehension of bias raised by the actions and behaviour exhibited by presiding board member Sotto?
The applicants allege that by leaving the bench, taking the applicant's daughter's birth certificate to question the principal applicant about it in the witness box, and telling the principal applicant not to look at her friend or he would send her friend out of the room, the board member breached the rules of natural justice as this conduct created an apprehension of bias.
[37] The test for reasonable apprehension of bias was outlined by de Granpré J. in dissent, in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
The test has been approved by the Supreme Court of Canada many times.
[38] I have reviewed the transcripts of the hearing and I have not been able to come to a conclusion that board member Sotto's conduct created an apprehension of bias. My reading of the transcript is that Mr. Sotto was most polite to the applicant. In fact, at one point, the principal applicant, after Mr. Sotto explained his question further, indicated that she now understood the question. Also, when requested by the principal applicant's counsel, Mr. Sotto returned to the bench. This conduct does not indicate to me that the board member would not decide the principal applicant's application fairly as outlined in Committee for Justice and Liberty, supra. I might add though as a practical matter, it would be better practice should the board member wish to question a clamant or witness, to do so from the bench or, for example, the board member should ask the applicant's counsel's permission to approach the witness. In these matters, it must be remembered that paragraph 67(2)(b) of the Act empowers a member of the Refugee Division to examine any person under oath.
[39] With respect to instructing the principal applicant not to look at her friend or the friend would be removed from the room, this does not raise a reasonable apprehension of bias. The board member may have said this for many reasons. The Board is certainly in charge of its own procedure subject, of course, to the rules of natural justice. The record does not disclose the reason for the remark and I should not speculate as I am only reviewing the record in this application for judicial review.
[40] Issue 2
Did the Convention Refugee Determination Division err in law in putting the motion to reopen the hearing before the very panel that was alleged to have breached the rules of natural justice and to have raised a reasonable apprehension of bias?
The applicants filed a motion to the IRB on June 11, 1999 for a de novo hearing. The motion stated that there was a reasonable apprehension of bias on the part of the presiding board member and the motion asked for the IRB "to rectify its own breaches of natural justice". The hearing of the applicants' claim had concluded on June 9, 1999 and the decision had been reserved. I am of the opinion that, provided the request was not too late, the appropriate person to decide whether or not an apprehension of bias exists is the person against whom it is alleged. Such a person's decision (or the Board's decision–of which the person is a member) in relation to whether there exists an apprehension of bias may be right or wrong, but it should first be made, and then subject to any review that is available thereafter. In my opinion, the allegation of an apprehension of bias must be first put to the person against whom the allegation is being made. I might also add that an allegation of an apprehension of bias must be made when the person first learns of the facts supporting his or her allegation. In this case, that would have been at the hearing itself. I need not decide whether the delay amounted to a waiver in this case.
[41] Issue 3
Did the panel err in law in its determination that the applicant, Nasima Khatun was not credible?
The main issues raised by the applicants with respect to credibility were the daughter's birth certificate, the dates on an envelope in which the principal applicant received a letter from her sister and the encounter with the stranger at Pearson International Airport when she first arrived in Canada. With respect to the daughter's birth certificate, it showed the principal applicant's husband to be the "late" Ataur Rahman. This, the Board concluded, would mean the principal applicant's husband was dead when the certificate information was gathered some time in 1995. The principal applicant's own evidence was that her husband disappeared in 1997. The encounter with the stranger she met at Pearson International Airport consists of the fact that there was a discrepancy as to whether the stranger spoke to her in English or Hindi.
[42] The Federal Court of Appeal has ruled that questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as a trier of fact. Thurlow C.J. in Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346, A-987-84 (May 29, 1986) (F.C.A.) stated:
In our opinion the points argued by counsel for the applicant raise only questions of credibility and of the weight of evidence and afford no legal basis upon which this Court could properly interfere with the decision of the Immigration Appeal Board.
I have reviewed the reasons for the Board's findings on credibility. I find no reason to disturb the Board's findings in relation thereto.
[43] Issue 4
Did the panel err in law in its determination that there was no nexus between the applicants' fear of persecution and the grounds as stated in the definition of Convention refugee?
As I read the Board's decision, it made a finding that the principal applicant's in-laws wished to divest her of her properties and bank accounts left to her by her late husband because they wanted the assets for themselves, not for any of the five Convention grounds. The principal applicant's in-laws were committing a crime but that does not alone constitute a ground for persecution as contemplated by the definition of Convention refugee. The reference to the brother-in-law's threat to throw acid in the principal applicant's face, although not specifically addressed by the Board, is covered under discussion of the commission of a crime. It is not necessary that the Board specifically mention every piece of evidence. I find that the Board's decision was reasonable with respect to nexus between the applicants' fear of prosecution and the grounds stated in the definition of Convention refugee.
[44] Issue 5
Did the Convention Refugee Determination Division err in law in determining that there exists state protection in Bangladesh for the applicants?
The Board also found that even if it was to accept that the harm inflicted on the principal applicant by her in-laws fell within the ambit of the Convention refugee definition, it would have found that it was "objectively reasonable to expect her to have sought the protection of the state". In my opinion, the Board did not err in this conclusion. The evidence establishes that the principal applicants' brother-in-law had been charged and imprisoned before and there was a justice system in place in Bangladesh that would deal with persons such as her brother-in-law.
[45] I also agree with the Board's finding with respect to the minor applicant.
[46] The application for judicial review is dismissed.
[47] Neither party wished to certify a serious question of general importance.
ORDER
[48] IT IS ORDERED that the application for judicial review be dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 30, 2001