Islam et al. v. Canada (Minister of Citizenship and Immigration), 2015 FC 226

• Judge: Diner, J.
• Court: Federal Court (Canada)
• Case Date: December 03, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 226;(2015), 476 F.T.R. 128 (FC)

Islam v. Can. (M.C.I.) (2015), 476 F.T.R. 128 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.028

Ahad Islam, Mishel Akther, Zara Islam, and Shaan Islam (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-6246-13; 2015 FC 226)

Indexed As: Islam et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Diner, J.

February 20, 2015.

Summary:

The Islam family (the applicants) claimed refugee protection. They presented claims of persecution and prospective torture or risk based on an affiliation with the Ahmadiyya religion, a minority Islamic sect in Bangladesh. The Refugee Protection Division (RPD) rejected the claim, based on unproven identity and a negative inference on credibility. The applicants applied for judicial review.

The Federal Court allowed the application. The RPD's decision was unreasonable, in light of overlooked and misapprehended evidence. The Court remitted the matter to a differently constituted panel of the RPD for reconsideration.

Aliens - Topic 1323.4

Admission - Refugee protection, Convention refugees and person in need of protection - Credible basis for claim - [See Aliens - Topic 1331 ].

Aliens - Topic 1331

Admission - Refugee protection, Convention refugees and persons in need of protection - Evidence - The applicant family (primary claimant, his spouse and their two children) presented claims of persecution and prospective torture or risk based on an affiliation with the Ahmadiyya religion, a minority Islamic sect in Bangladesh - The Refugee Protection Division (RPD) rejected the claim, based on unproven identity and a negative inference on credibility - On judicial review, the applicants contended that the RPD erred by failing to consider the authenticity of the childrens' birth certificates before rejecting the claim based solely on the inauthenticity of the adults' birth certificates - They also disputed the basis upon which the RPD arrived at its findings regarding the adult birth certificates - The Federal Court agreed with the applicants and found the RPD's decision to be unreasonable - The decision failed to address various key Bangladeshi identity documents presented by the applicants, including school documentation - Nor were the Canadian Ahmadiyya documents substantively addressed in the decision - Accordingly, the Board erred in failing to address relevant and seemingly credible identity documentation - The matter was remitted to a differently constituted panel of the RPD for redetermination.

Cases Noticed:

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 17].

Wang v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 590; 2011 FC 969, refd to. [para. 17].

Noha v. Canada (Minister of Citizenship and Immigration) (2009), 347 F.T.R. 265; 2009 FC 683, refd to. [para. 19].

Diarra v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 220; 2014 FC 123, dist. [paras. 19, 24 et seq.].

Kabongo v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 523; 2013 FC 1086, folld. [paras. 24 et seq.].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 28].

Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394; 2001 FCA 331, refd to. [para. 28].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 106 [para. 16].

Immigration and Refugee Protection Act Regulations (Can.), Refugee Protection Division Rules, SOR/2012-256, rule 11 [para. 11].

Refugee Protection Division Rules - see Immigration and Refugee Protection Act Regulations (Can.), Refugee Protection Division Rules.

Counsel:

Douglas Lehrer, for the applicants;

Meva Motwani, for the respondent.

Solicitors of Record:

VanderVennen Lehrer, Toronto, Ontario, for the applicants;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on December 3, 2014, before Diner, J., of the Federal Court, who delivered the following judgment and reasons, dated February 20, 2015.