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2019 RLLR 49

Citation: 2019 RLLR 49
Tribunal: Refugee Protection Division
Date of Decision: April 10, 2019
Panel: James Waters
Counsel for the claimant(s): Yasmine Abuzgaya
Country: Bangladesh
RPD Number: TB7-22737
ATIP Number: A-2020-01274
ATIP Pages: 000060-000068


REASONS FOR DECISION

[1]       The claimant, [XXX], claims to be a citizen of Bangladesh and claims refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       In assessing her claim, I considered Chairperson’s Guideline 4, Women Refugee Claimants Fearing Gender-Related Persecution.2

ALLEGATIONS

[3]       After a brief courtship, the claimant entered into an arranged marriage in Bangladesh with a permanent resident of Canada, in [XXX] 2015.3

[4]       Her husband returned to Canada shortly after the marriage, and in [XXX] of 2016, he submitted an undertaking to sponsor the claimant’s spousal application for permanent residence in Canada.

[5]       Her husband returned to Bangladesh to visit her in the spring of 2016. Problems over dowry issues between the respective families surfaced during this visit, escalating from heated arguments to threats of physical violence.

[6]       The claimant alleges that she was verbally, physically and sexually abused by her husband during this visit.

[7]       The spouses attempted to reconcile, and made a trip together to India in [XXX] of 2016. Her husband returned to Canada at the end of [XXX] of 2016.

[8]       The claimant alleges that she was stalked and threatened by her husband’s family and friends after he returned to Canada.

[9]       The claimant arrived in Canada on [XXX], 2016 with a visa authorizing her to enter Canada, and told the immigration officer she wished to reconcile and reside with her sponsor.

[10]     Her husband was notified of her arrival by an immigration official and attended at the airport, where he advised IRCC that he had withdrawn his undertaking to sponsor her and did not want to reconcile and have her reside with him.

[11]     She made her refugee claim inland on November 3, 2017, after being advised that she was in breach of a condition requiring her to reside with her sponsor. The admissibility hearing was cancelled after she made her refugee claim.

IDENTITY

[12]     The national identity of the claimant as a citizen of Bangladesh was established by her oral testimony in the Bengali language, and the supporting documentation filed.4

[13]     The supporting documentation included copies of her valid passport, birth certificate and school records.5 Originals of the birth certificate and school records produced by the claimant were made available to the RPD prior to the hearing.

[14]     In the statutory declaration the claimant’s sponsor alleged that the claimant had filed a falsified birth certificate as part of her application for permanent residence to conceal that she was born on [XXX], 1998, rather than [XXX], 1997.6 A translated copy of a birth certificate showing the claimant’s birthdate as [XXX], 1998 was attached to the statutory declaration.7

[15]     An affidavit of a lawyer at the [XXX] described the online searches performed by that lawyer to confirm that the [XXX], 1997 birth date in the birth certificate produced by the claimant matched that in the online records searched by the affiant.8 The affiant described the similar searches she conducted, unsuccessfully, on the online registry to verify the [XXX], 1998 birthdate indicated in the copy of a birth certificate produced by the sponsor in his statutory declaration.

[16]     Having regard to the evidence submitted the claimant established on a balance of probabilities that she is the person she says she is, and that she was born on [XXX], 1997.9

[17]     There were discrepancies between the claimant’s consistent oral and written testimony, and the inconsistent information in the spousal Sponsorship Questionnaire.10 as to when the couple met. The claimant explained that she had signed blank spousal sponsorship forms and returned them to her sponsor who hired an immigration consultant to fill them in and submit them.

[18]     There was abundant evidence in the form of a marriage certificate, wedding photographs11 as well as the statutory declaration of her sponsor to establish on a balance of probabilities the marriage ceremony and the registration of the marriage.12

[19]     A copy of a certificate of divorce was sent to IRCC by her sponsor, which indicates that her sponsor divorced her effective [XXX], 2017.13

[20]     A copy of a pending application and supporting affidavit to set aside the divorce judgment, based on improper service of the Petition for Divorce, was filed.14

CREDIBILITY

[21]     The standard of proof for assessing evidence as well as credibility is a balance of probabilities that the evidence is, more likely than not, true.15 When a claimant swears to the truth to certain allegations, this creates a presumption that those allegations are true unless there is a reason to doubt their truthfulness.16 In assessing the credibility of a claimant, the panel is entitled to make reasonable findings based on implausibility, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.

[22]     The claimant’s oral testimony as to the spousal abuse she suffered at the hands of her former husband was generally consistent with that described in her personal narrative17 and the description contained in a psychological assessment report filed.18

[23]     The claimant was confronted with the fact that her husband was not aware of her travel plans. She testified that she had tried to inform her husband, but he had discontinued contact. She hoped to reconcile with him after coming to Canada.

[24]     The claimant testified that while their relationship had broken down before she came to Canada, neither her husband, nor IRCC had informed her that he had withdrawn or wished to withdraw his sponsorship until after she had arrived in Canada.

[25]     A credibility concern explored at the hearing was why the claimant would chose to reconcile in Canada with an abusive spouse who had assaulted and sexually abused her on his previous trip to Bangladesh, and who apparently did not want her to come to Canada.

[26]     The claimant noted cultural and social mores, as well as family pressures in Bangladesh against a woman leaving a spousal relationship.

[27]     In her written submissions claimant’s counsel submitted that women facing domestic and intimate partner abuse chose to return to the relationship for a variety of cultural, religious and financial realities including fears of increased abuse post separation.19

[28]     The claimant’s counsel cited excerpts from the expert opinion letter of [XXX], outlining a number of factors influencing abused woman to stay in an abusive relationship.20 Claimant’s counsel also cited a Human Rights Watch Report that mentioned financial dependency amongst other factors relevant to abused woman in Bangladesh.21

[29]     The claimant testified as to her father being harassed and threatened in Bangladesh over unresolved dowry issues, and the breakdown of the marriage both before and after she came to Canada. This oral and written testimony was supported by a translated excerpt from a diary provided to the police.22

[30]     An affidavit from a relative in Canada, and a notarized statement and letters from family in Bangladesh and Canada supported her oral and written testimony as to her fear of harm from her husband and his family and friends, if she returned to Bangladesh.23

[31]     Having regard to all of the evidence submitted that did not include the oral testimony of her former spouse, the claimant established on a balance of probabilities, the allegations of verbal, physical, sexual and psychological abuse outlined in her narrative.

Objective Basis

[32]     The documentary evidence indicates that domestic violence is rampant in Bangladesh and that it “occurs for many reasons, most often connected to dowry demands.”24

[33]     The documentary evidence indicates that, in Bangladesh, violence within a relationship is generally seen as private matter, and that there is a general acceptance of violence against women and girls.25 Despite a raft of legislation, enforcement remains weak, and the few offenders who are prosecuted receive minor punishments if any at all.26

[34]     Corruption within the police and judicial system was identified in the United States Department of State Report as a general problem preventing fair trials.27 A United Nations Human Rights report on Bangladesh attributes a lack of faith in the court system and the failure to implement the laws as factors in the continued high incidence of acid attacks, rapes and dowry related violence.28

[35]     The claimant’s former spouse lives in Canada. Articles were filed to support the claimant’s fear of an acid attack if she returned to Bangladesh, from her husband’s family, or his associates who had stalked her while she was living in Bangladesh after her husband returned to Canada.29

[36]     The preponderance of the documentary evidence establishes an objective basis for the claim.

[37]     The claimant testified that her former husband is aware of where her family members live in Chittagong. She established a serious possibility of persecution should she return to there. Her nexus is as a member of a particular social group as a single divorced woman who has been subjected to domestic violence.

INTERNAL FLIGHT ALTERNATIVE (IFA)

[38]     An IFA arises when a claimant who has a well-founded fear of persecution in his or her home area of the country is not a Convention refugee because he or she has an internal flight alternative elsewhere in the country.

[39]     The test to be applied in determining whether there is an IFA is two pronged:

The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.30

Conditions in the part of the country [considered to be an IFA] must be such that it would not be unreasonable, in all the circumstances [including those particular to the claimant] for [her] to seek refuge there.31

[40]     The Federal Court of Appeal sets a very high threshold for the ‘unreasonableness test’, requiring nothing less than the existence of conditions which would jeopardize the life or safety of the claimant. There must be actual and concrete evidence of such conditions.

[41]     Dhaka was identified as a possible internal flight alternative.

[42]     The claimant is a young divorced woman who was not employed while living in Bangladesh. She testified that she would be unable to get a job or housing in Dhaka. She testified that her father is an elderly man with health problems, who lives with a son in Chittagong, on whom he relies for financial and emotional support. She testified that none of her family members had the financial resources to support her relocation anywhere, never mind an expensive city like Dhaka.

[43]     Her counsel submitted that a divorced / single woman like the claimant cannot realistically relocate within Bangladesh due to three reasons:32

1.         an inability to secure housing;

2.         lack of employment opportunities; and

3.         lack of domestic violence shelters and other social services.

[44]     Counsel buttressed her written submission with references to documentary evidence indicating that:33

1.         divorced woman encounter huge difficulties in accessing housing;

2.         a grim employment situation for single and divorced woman;

3.         single and divorced woman, in general are looked down upon by society;

4.         the limited social services available were difficult to access.

[45]     The claimant established on a balance of probabilities that given the circumstances of single divorced woman in Dhaka, together with the particular circumstances of the claimant, it is not reasonable for her to seek refuge there.

CONCLUSION

[46]     I find that [XXX] is a Convention refugee. I therefore accept her claim.

(signed)             James Waters

April 10, 2019

1 The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
2 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
3 Exhibit 2, Basis of Claim (BOC).
4 Exhibit 9, Package 1; and Exhibit 10, Package I 0.
5 Exhibit 9, Package 1; at pp 1-12.
6 Exhibit 5, SIRU Part 2, at p. 22, para 2.
7 Ibid, at p. 24.
8 Exhibit 9, Package 1, at pp. 13-19.
9 Ibid.; and Exhibit 10, Package 2.