Federal Court Decisions

     IMM-305-96

BETWEEN:

     BIBA KAUR

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

JEROME, A.C.J.:

     This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board which held the applicant is not a Convention refugee. At the hearing of this matter in Toronto, Ontario, on October 30, 1996, I allowed the application indicating these written reasons would follow.

     Ms. Kaur, a citizen of Malaysia, arrived in Canada in May of 1989, and claimed convention refugee status on the basis of a well-founded fear of persecution by reason of political opinion. The relevant facts are summarized in the Refugee Board's decision at p. 2 as follows:

The claimant joined the Democratic Action Party (DAP) in July 1988. Even though she described herself as an inactive member, she elaborated and explained that she had a lot to say at meetings. She took part in two demonstrations in August and December 1988, following which she was detained for a short time and released with a warning. She testified that she was mistreated on those occasions. In April 1989, she protested against unfair management practices in front of the hotel where she worked and was arrested. She testified that during her second night in detention, she was raped and severely beaten by three or four policemen. She was released the next morning. The claimant stated that she needed medical attention afterwards. No charges were laid against the claimant.

The witness, Gurnam Kaur, the claimant's mother, testified that after the claimant left Malaysia in May 1989, unknown plain-clothed men, who did not identify themselves, came to their home three occasions, asking as to the claimant's whereabouts. The last visit occurred five months after the claimant left Malaysia. The witness testified that she just knew that they were policemen.

The claimant stated that she never would feel safe in Malaysia and that the rape ruined her life.

     The Board did not make any adverse finding of fact but concluded that the applicant's fear of persecution was not well-founded. The decision states at pp. 6-7 and p. 8 as follows:

The claimant stated on different occasions that her life was ruined because she was raped by three or four policemen while in custody in April 1989. The medical report describes her as being suicidal and depressed because of this incident. The claimant testified that the Sikh community would ostracize her and a potential Sikh husband would abuse her, if he were to find out that she had been raped. The claimant did not establish that she was raped for any of the reasons set out in the definition of Convention refugee in the Immigration Act. She was detained on two prior occasions and nothing happened. After the rape incident, she was released the next morning. There is no persuasive evidence before the panel that the police tried to rape other female members of her family or other female members of the DAP. The evidence established that the claimant was a random victim of violence, which could have occurred anywhere. There is no persuasive evidence before the panel that the Sikh community would ostracize the claimant for how and by whom she was raped, but for the fact that she was raped.

     . . .

The panel sympathizes with the claimant. However, as her fear of persecution in Malaysia is not well founded and the rape was a random act of violence with no nexus to the Convention refugee definition contained in the Immigration Act, it is our view that, based on the caselaw as presented in Obstoj, and more recently in Esther Toah, this section will not apply.

     As stated at the hearing of this matter, I am satisfied that the decision should be set aside and the matter returned to a newly constituted panel for reconsideration. The Board's conclusion that the applicant was a "random victim of violence which could have occurred anywhere" is not sustainable. Had the rape taken place without reference to any demonstrations or political activities, the Board's conclusion would be apt and appropriate. However, the evidence shows that the applicant was detained as a result of her participation in the DAP and was actively sought by the police on a number of occasions. During her detention, she was not only queried about her political activities, she was raped as well. That incident was a direct consequence of her detention for political reasons.

     For these reasons, on October 30, 1996, I allowed the application. The matter is to be returned to a newly constituted Board for rehearing and reconsideration in accordance with the legislation and these reasons.

O T T A W A

January 17, 1997                      "James A. Jerome"

                             A.C.J.