Date: 19990728
Docket: IMM-5385-98
Between:
MOHAMMAD REHAN KHAWAJA,
ROWSHAN ARA REHAN,
MOHAMMAD SHAEEK KHAWAJA,
Plaintiffs,
AND
THE MINISTER OF CITIZENSHIP
OF IMMIGRATION,
Defendant.
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a decision by the Refugee Division of the Immigration and Refugee Board ("the Refugee Division") on August 27, 1998 dismissing the refugee status claim of the plaintiffs, who are originally from Bangladesh.
[2] The plaintiffs feared persecution in Bangladesh because of the political and social activities of the principal claimant ("the claimant"). In March 1989 the claimant became a member of the Jatiya Party Bhandaria Thana Branch of Pirojpur District. He was elected a member of the executive committee in January 1993 and became treasurer in January 1994. The plaintiff was beaten twice by supporters of the Bangladesh Nationalist Party ("BNP") when he was attending demonstrations. The latter attacked his business on one occasion and also vandalized his house. The plaintiff was also attacked twice by supporters of the fundamentalist organization Jamaat-e-Islami. The police arrested and beat the plaintiff on two occasions. On each occasion the plaintiff had to pay a bribe in order to be released.
[3] Relying on various omissions, contradictions and inconsistencies, the Refugee Division dismissed the testimony of the principal claimant, which appeared to them to be [TRANSLATION] "an entire fabrication". The panel also found the allegations of the claimant that he was active in the Jatiya Party to be less than credible. The plaintiff was even found to lack credibility on the fact that he belonged to a political party or had been sought by the Bangladeshi police.
[4] The plaintiffs argued that the members of the Refugee Division made an error of law when they did not take into account a psychological expert opinion concluding that there was a severe post-traumatic stress disorder, and secondly, the specific documentary evidence of the plaintiff, namely letters setting out his social commitment regarding the oppression of women (P-8, p. 362 of the plaintiff's record), his membership in the Jatiya Party, in which he was even elected treasurer of one of the divisions (P-9, p. 364), and finally a letter from his counsel in Bangladesh describing his problems with the police (arrests, torture and bribes).
[5] The plaintiffs further submitted that the Refugee Division also erred in concluding, first, that there was [TRANSLATION] "an absence of the minimum basis for these claims under s. 69.1(9.1) of the Immigration Act", and second, without providing any reasons for this conclusion.
[6] The defendant's response to the plaintiffs' arguments comes down to the following proposition: assuming that the Refugee Division did not believe the principal plaintiff, it was not unreasonable to attach no evidentiary value to the psychological report and to conclude that there was an absence of minimum basis.
[7] As I indicated at the close of the hearing of this matter, it is a case in which the Court's intervention is warranted.
[8] In my opinion the panel was wrong to conclude that the principal claimant was not credible without taking into account and without discussing the content of the psychological report which found severe post-traumatic stress disorder and the plaintiff's difficulties relating the traumatizing events he had experienced, except for negatively arriving at the conclusion that these were facts he had not indicated in his personal information form.
[9] The panel further erred in concluding that the principal claimant was not credible as to his political commitment to the Jatiya party and the fact that he was sought by the police, when independent evidence relating specifically to the plaintiff corroborated his testimony on this point. The panel did not say a word about this evidence, which not only corroborated
important aspects of his claim but at the very least supported the credibility of his testimony. [See to the same effect Mahanandan v. M.E.I., A-608-91, August 24, 1994, F.C.A. (unreported judgment), Mahamood Rehman v. M.C.I., IMM-2175-96, June 4, 1997, F.C.T.D. (unreported judgment), Numbi v. M.C.I., IMM-1378-98, February 17, 1999, F.C.T.D. (unreported judgment), Kouassi v. M.C.I., IMM-3871-97, August 24, 1998, F.C.T.D. (not reported), Berete v. M.C.I., IMM-1804-98, March 2, 1999, F.C.T.D. (not reported), Khan v. M.C.I., IMM-2831-98, March 11, 1999, FC.T.D. (unreported judgment).]
[10] The application for judicial review is allowed. The matter is referred back to the Board for re-hearing and reconsideration by a panel of different members. The case raises no question of general importance.
| Pierre Denault Judge |
MONTRÉAL, QUEBEC
July 28, 1999
Certified true translation
Bernard Olivier, LL. B.
| FEDERAL COURT OF CANADA TRIAL DIVISION Date: 19990728 Docket: IMM-5385-98 Between: MOHAMMAD REHAN KHAWAJA, ROWSHAN ARA REHAN, MOHAMMAD SHAEEK KHAWAJA, Plaintiffs, AND THE MINISTER OF CITIZENSHIP OF IMMIGRATION, Defendant. REASONS FOR ORDER |
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: IMM-5385-98 |
| STYLE OF CAUSE: MOHAMMAD REHAN KHAWAJA, |
ROWSHAN ARA REHAN,
MOHAMMAD SHAEEK KHAWAJA,
Plaintiffs,
AND
THE MINISTER OF CITIZENSHIP
OF IMMIGRATION,
Defendant.
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 27, 1999
REASONS FOR ORDER BY: DENAULT J.
DATED: JULY 28, 1999
APPEARANCES:
Carole Fiore for the plaintiffs
Michel Synmott for the defendant
SOLICITORS OF RECORD:
Bélanger, Fiore, attorneys for the plaintiffs
St-Laurent, Québec
Deputy Attorney General of Canada for the defendant
Federal Department of Justice