Date:
20060811
Docket:
IMM-6047-05
Citation:
2006 FC 974
Ottawa, Ontario, this 11th
day of August, 2006
PRESENT: The Honourable Mr. James
Russell
BETWEEN:
AHMED
SHAFIQUE RAHMAN
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1]
This is an application to judicially review a
Board decision made under s. 72 of the Immigration and Refugee Protection
Act (Act). The application is made pursuant to sections 18 and 18.1
of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision of the
Refugee Protection Division of the Immigration and Refugee Board (Board). In
its decision, dated September 16, 2005 (Decision), the Board determined that
the Applicant is not a Convention refugee or a person in need of protection.
BACKGROUND
[2]
The Applicant, Ahmed Shafique Rahman, is a
25-year-old citizen of Bangladesh. He came to Canada on August 13, 2003 on a student visa which was
valid until September 30, 2006. Between September and December 2003, he was enrolled
at the University of Windsor.
[3]
On January 15, 2004, the Applicant made a claim
for refugee protection in Canada pursuant to sections 96 and 97 of the Act. He
based his refugee claim on his political activities as a member of the
Bangladesh Chatra League (BCL), which is a branch of the Bangladesh Awami
League (AL). The AL was the
governing party of Bangladesh
from 1996 until its defeat in the October 2001 election.
[4]
In his Personal Information Form (PIF), the
Applicant states that he joined the BCL in January 2000. At the time, he was
living in Dhaka. He says he attended seminars, meetings and demonstrations
organized by the BCL and the AL. In addition, he says he made posters and leaflets
for the party and trained BCL and AL workers in computers. The Applicant claims that, as a result of
these activities, his profile within the AL community grew.
[5]
The Applicant alleges that goons associated with
the Bangladesh National Party (BNP) targeted him because of his activities on
behalf of the BCL and, in particular, because of his help in printing and disseminating
posters and leaflets condemning the activities of the BNP. The posters were created
during the period leading up to the national election held in October 2001, and
the leaflets were produced following the victory of a coalition of parties which
included the BNP.
[6]
The Applicant claims that he was harassed,
beaten and tortured by BNP goons and members of the Jamaat-e-islami on several
occasions. Specifically, the Applicant recounts the following incidents:
a)
On August 15, 2002, he was attacked by six armed
BNP goons;
b)
On November 7, 2002, some goons attempted to
kidnap him;
c)
On December 16, 2002, he was attacked and
stabbed in his right arm and had to be hospitalized for two days;
d)
On January 1, 2003, BNP-Jamaat armed cadres
attacked him when he went to visit a friend’s house. They beat and tortured
him and demanded a ransom of 200,000 taka (approximately $5,000 Canadian). The
Applicant was released after his father paid 50,000 taka; and
e)
On May 2, 2003, he was informed by his parents
that BNP-Jamaat armed cadres came to their house looking for the Applicant and
told his parents they would kill him.
The Applicant says
that on the day after the last incident he went into hiding at a friend’s house
in the eastern part of Bangladesh.
[7]
In his PIF, the Applicant states that, in early
2003, his father hired an agent to help him obtain admission to the University of Windsor and a student visa to
Canada. His father feared for
the Applicant’s safety. The Applicant acquired a student visa after submitting
his passport to the Canadian High Commission in Bangladesh on July 8, 2003.
[8]
The Applicant claims that on December 1, 2003,
while he was studying in Canada, BNP-Jamaat armed goons forcibly entered his
parents’ home in Bangladesh looking
for him. His parents refused to reveal the Applicant’s whereabouts. The
Applicant says that, following this incident, his parents were forced to move.
He also testified that his mother lost her job as a lecturer in biology at the
Dhaka Women’s College because of his political activities.
[9]
Finally, the Applicant claims that his parents
were informed that the police were looking to arrest him, but that his parents
were not told specifics of the charges against him.
[10]
In support of his refugee claim, the Applicant
provided the following documents:
a)
A letter from Mirza Azam, the General Secretary
of the Bangladesh Awami Jubo League;
b)
A letter from Anup Kumar Saha, a lawyer in Bangladesh, in which Mr. Saha indicated his
efforts to determine whether the police were looking for the Applicant and, if
so, on what charges;
c)
A medical report from Dr. Chowdhury stating that
the Applicant was admitted to hospital in Dhaka on December 16, 2002 bleeding from his right arm;
d)
A letter from the Applicant’s father to the
Dhammond Police Station, dated May 25, 2003, reporting that someone had called
and threatened to harm the Applicant;
e)
A letter from Dhaka Women’s College dated June
13, 2004, stating that the Applicant’s mother’s position as a lecturer was
being abolished; and
f)
A report from Dr. Judith Pilowsky, a
psychologist in Toronto, detailing her clinical assessment of the Applicant in
relation to the psychological impact of his return to Bangladesh should his
refugee claim be denied.
The Applicant also
submitted several newspaper articles that refer to politically motivated
assaults and arrests of AL
members.
DECISION UNDER REVIEW
[11]
The Board concluded that the Applicant did not provide
clear and convincing evidence that he would face a serious possibility of
persecution in Bangladesh based
on his political opinions, or of a risk to his life or cruel and unusual treatment
or punishment. In denying the Applicant’s claim for refugee protection, the
Board determined that his allegations that he was being targeted by the BNP
goons because of his activities with the BCL were not credible.
[12]
Among its findings, the Board stated that there was no independent
evidence that persons who distributed posters and leaflets are being persecuted
by goons in Bangladesh. Because the Applicant’s name was not on any of the
posters or leaflets, the Board held that he is at no greater risk than the many
other members of the AL who also distributed posters and leaflets. Further, the
Board found that the Applicant does not fall within the category of persons
usually targeted for politically motivated violence. The Board stated that the documentary
evidence indicates that it is the leaders of the AL, at the local and national
level, who were left vulnerable to politically motivated arrest and detention
after the 2001 election. Finally, the Board noted that, in his own evidence,
the Applicant stated that he did not have any problems with BNP goons in the lead
up to the election in 2001, or during Operation Clean Heart in October 2002, in
which more than 10,000 people were arrested, including members and workers of
the opposition and ruling political parties.
[13]
With respect to the Applicant’s specific allegations of harassment,
assault and kidnapping by BNP goons, the Board found, on a balance of
probabilities that, with the possible exception of the December 16, 2002 attack,
none of the incidents alleged by the Applicant occurred. Moreover, the Board
concluded that after the Applicant left Bangladesh no one came looking for him,
including BNP goons or the police.
[14]
Specifically with respect to the December 1, 2003 incident, the Board
did not accept the Applicant’s explanation that his father would not tell the
BNP goons that his son was out of the country because the goons might still
make the Applicant’s life miserable. The Board found that there was nothing to
be gained from the father concealing this information. Consequently, the Board held
that this incident did not occur. In fact, the Board concluded that the
Applicant’s parents were not forced to move after this alleged incident, at
least not for the reason stated by the Applicant – i.e. that the BNP goons were
threatening to harm him. The Board held that “this whole aspect of the [Applicant’s]
story was fabricated to bolster his claim.”
[15]
In its reasons, the Board faulted the Applicant for not providing
corroborating documents of the alleged incidents of targeting by the BNP goons,
namely, police reports. Although the Applicant testified that his father went
to the police on three or four occasions, he provided a general diary entry for
only one incident that occurred on May 25, 2003, in which his father received a
telephone call from someone threatening to cut his son to pieces. The Board
stated that First Information Reports from the Bangladeshi police are not
difficult to obtain, and that the Applicant made insufficient efforts to get
such documents. As a result, pursuant to Rule 7 of the Refugee Protection
Division Rules, the Board made a negative credibility finding from the
Applicant’s failure to provide the Board with corroborating documents.
[16]
The Board also held that the documentary evidence provided by the
Applicant was not sufficient to support his claim that he was being targeted by
BNP goons for his activities with the AL.
[17]
First, the Board states that, although the Applicant provided a medical
report of injuries treated on December 16, 2002, there is no indication in the
report of who inflicted the wound to his arm or for what reason. Consequently,
and because of other credibility findings, the Board held that there was
insufficient trustworthy evidence that the wound was a direct result of the
Applicant’s work with the AL.
[18]
Second, the Board held that, although the letter from the General Secretary
of the Bangladesh Awami Jubo League, Mirza Azam, stated that the Applicant was
beaten, threatened and ultimately forced to leave the country, there was no
indication in the letter that the reason goons were after him was because he
used his computer skills to promote the AL or to denigrate the BNP, as alleged
in the Applicant’s refugee claim.
[19]
The Board also questioned how Mr. Azam was in a position to write in the
letter that “even at present they are threatening his father in various ways
and recently his mother was terminated from her job.” Because the Applicant
testified that perhaps his uncle, who had acquired the letter on his behalf,
had mentioned the information to Mr. Azam, the Board concluded that the letter
merely reiterates what was told to Mr. Azam by the Applicant’s uncle. As a
result, the Board gave little weight to this letter as corroborative evidence.
[20]
Third, in reviewing the letter of termination received by the
Applicant’s mother, the Board noted that the letter was written in June 2004,
six months after, according to the Applicant’s evidence, his parents went into
hiding. The Board concluded that the termination of the mother’s employment had
nothing to do with the Applicant’s alleged problems with BNP goons. The letter
stated that her position was terminated for financial reasons. Moreover, the
Board found, on a balance of probabilities, that the Applicant’s father is
still teaching.
[21]
Fourth, regarding the letter from Mr. Saha, a lawyer in Bangladesh, the
Board accepted that Mr. Saha had written the letter and that he knew the
Applicant’s father. However, with respect to Mr. Saha’s statement that the
police would arrest the Applicant under the Special Powers Act (SPA) and
would confine him in jail for an indefinite period, the Board concluded that
the police are not looking to detain the Applicant under the SPA. The Board
noted that the Canadian Embassy was told by a number of police stations in Bangladesh
that there was no list of persons wanted under the SPA and that some kind of
arrest warrant was needed before the police could determine that a person was
wanted under the SPA. Only in “special circumstances” would an arrest warrant
be issued, and the Board held that there were no special circumstances in play
in relation to the Applicant. The Board stated that an Amnesty International
report supported the evidence that an arrest warrant would be required.
[22]
Finally, the Board discounted the psychological report provided by Dr.
Pilowsky because it was based on the Applicant’s account of the incidents
underlying his refugee claim, which the Board found not to be credible.
[23]
Regarding the issue of delay in claiming refugee status in Canada, the
Board held that, based on its finding that the December 1, 2003 incident
involving his parents did not occur, the reason the Applicant filed a refugee
claim was that his marks were not good enough to allow him to continue studying
at the University of Windsor. The Board commented that, despite the alleged
beating in August 15, 2002, the Applicant said he was not interested in going
abroad at the time. Nonetheless, the Board noted that the Applicant had acquired
a passport in September 2002 and wrote the TOEFL examination in November 2002.
He subsequently came to Canada on a student visa and did not claim refugee
protection right away.
ISSUES
[24]
The sole issue raised by the Applicant is
whether the Board committed a reviewable error with respect to its findings
that the basis for the Applicant’s claim for refugee protection was not
credible.
PERTINENT LEGISLATION
[25]
The Applicant makes his claim for Convention
refugee protection under section 96 of the Act on the ground of political
opinion. He also makes his claim on the basis of risk to his life if he returns
to Bangladesh pursuant to
subsection 97(1) of the Act. Sections 96 and 97 read as follows:
|
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality
and is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside
the country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a danger, believed on substantial grounds to
exist, of torture within the meaning of Article 1 of the Convention Against
Torture; or
(b) to a risk to their life or to a risk of cruel
and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from that
country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of
persons prescribed by the regulations as being in need of protection is also
a person in need of protection.
|
96. A qualité de
réfugié au sens de la Convention — le réfugié — la personne 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 :
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A qualité
de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b) soit à
une menace à sa vie ou au risque de traitements ou peines cruels et inusités
dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut
se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de
ce pays alors que d’autres personnes originaires de ce pays ou qui s’y
trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte
pas de sanctions légitimes — sauf celles infligées au mépris des normes
internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à
protéger la personne qui se trouve au Canada et fait partie d’une catégorie
de personnes auxquelles est reconnu par règlement le besoin de protection.
|
STANDARD OF REVIEW
[26]
The Supreme Court of Canada has held that assessments of credibility are
“quintessentially findings of fact” and that tribunals should be afforded
greater deference because they enjoy a relative advantage of hearing the viva
voce evidence: see Dr. Q. v. College of Physicians and Surgeons of
British Columbia, [2003] 1 S.C.R. 226 at paragraph 38. In Chowdhury v.
Minister of Citizenship and Immigration, 2006 FC 139 at paragraph 12, Justice
Simon Noël recently affirmed that the appropriate standard for reviewing the
Board’s credibility findings is patent unreasonableness:
The decision of the RPD as to the
Applicant’s entitlement to refugee protection is primarily based on the
credibility of his allegations. It is well established that the standard of
review as to the assessment of credibility of an applicant by the RPD is patent
unreasonableness (see Thavarathinam v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866
(F.C.A.), at para. 10; Aguebor v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 732
(F.C.A.) at para. 4).
[27]
With respect to plausibility findings that underlie conclusions related
to the credibility of a refugee claim, the Federal Court of Appeal held in Aguebor
at paragraph 4 that, as a specialized tribunal, the Board has “complete
jurisdiction to determine the plausibility of testimony”:
… who is in a better position
than the Refugee Division to gauge the credibility of an account and to draw
the necessary inferences? As long as the inferences drawn by the tribunal are
not so unreasonable as to warrant our intervention, its findings are not open
to judicial review. ...
Thus, the appropriate standard for
reviewing the Board’s plausibility findings in the present case is patent
unreasonableness.
[28]
Under the standard of patent unreasonableness, as long as there
is evidence to support the Board’s finding in relation to credibility or
plausibility, and no overriding error has occurred, the Board’s Decision should
not be disturbed. For example, in relation to an implausibility finding, the
Court may intervene where there is no evidentiary basis to support such a
finding. This was affirmed by Justice Andrew MacKay in Yada
v. Canada
(Minister of Citizenship and Immigration) (1998),
140 F.T.R. 264 at
paragraph 25:
25. Where the finding of a
lack of credibility is based upon implausibilities identified by the panel, the
Court may intervene on judicial review and set aside the finding where the
reasons that are stated are not supported by the evidence before the panel, and
the Court is in no worse position than the hearing panel to consider inferences
and conclusions based on criteria external to the evidence such as rationality,
or common sense (see Giron v. Minister of Employment and Immigration
(1992), 143 N.R. 238
(F.C.A.)).
However, the Court should not seek
to reweigh evidence before the Board simply because it would have reached a
different conclusion.
ARGUMENTS
The
Applicant
[29]
The Applicant submits that the Board’s reasoning
with respect to its credibility finding’s is patently unreasonable. In support
of his position, he says that this Court has established clear standards for
the assessment of credibility which include the following:
a)
When a claimant swears to the truth of certain
allegations, this creates a presumption that those allegations are true, unless
there is reason to doubt their truthfulness (Maldonado v. Canada (Minister
of Employment and Immigration), [1980] 2 F.C. 302; Villaroel v. Canada (Minister of Employment and
Immigration) (1970), 31 N.R. 50 (F.C.A.); Sathanandan
v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R.
(2d) 310 (F.C.A.); Okyere-Akosah v. Canada (Minister of Employment and Immigration) (1992), 157 N.R. 387 (F.C.A.));
b)
When a refugee tribunal rejects a claim on the
ground that the claimant is not credible, then it must state the ground clearly
and it must give its reasons for the credibility finding. Failure to state such
reasons is a reviewable error (Ababio v. Canada (Minister of Employment and
Immigration) (1988), 5 Imm. L.R. (2d) 174; Armson v. Canada (Minister of Employment and
Immigration) (1989), 9 Imm. L.R. (2d) 150 (F.C.A.);
Hilo v. Canada
(Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 199 (F.C.A.); Okyere-Akosah, above);
c)
A tribunal should guard against over-zealousness
when attacking the credibility of a refugee claimant, particularly when that
claimant has testified through an interpreter. Special caution should be
exercised when comparing statements made by a refugee claimant who testified on
different occasions through different interpreters (Attakora v. Canada
(Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.); Owusu-Ansah
v. Canada
(Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 106 (F.C.A.));
d)
A tribunal must have regard for the totality of
evidence before it when assessing the credibility of a refugee claimant. The
tribunal cannot make an adverse credibility finding while ignoring evidence by
the claimant explaining apparent inconsistencies (Owusu-Ansah, above; Frimpong
v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d)
183 (F.C.A.));
e)
Inferences of credibility must be based on the
evidence. If the Board bases its findings on inferences drawn from the
evidence, the Court can determine whether or not those inferences were
reasonably drawn (Frimpong, above; Giron v. Canada (Minister of
Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.));
f)
A tribunal cannot base credibility findings on
irrelevant considerations (Osusu-Ansah, above; Attakora, above);
g)
In making credibility findings, a tribunal
cannot take judicial notice of matters which are not the proper subject of judicial
notice (Attakora, above; Armson, above);
h)
A finding that a claimant is or is not a
credible witness is not determinative of the question of whether or not the
claimant is a Convention refugee. A claimant is still a refugee, whether
credible or not, if he/she satisfies the subjective and objective components of
the test for refugee status (Attakora, above; Armson, above); and
i)
If the tribunal rejects some of a claimant’s
testimony but accepts other aspects, then the tribunal must make a
determination as to whether or not, based on the evidence accepted by the
tribunal as credible, the person would qualify as a Convention refugee (Yaliniz
v. Canada (Minister of Employment and Immigration) (1988), 7 Imm. LR.
(2d) 163) (F.C.A.); M.M. v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 29 (F.C.A)).
[30]
In his Memorandum of Fact and Law, the Applicant
states that the Board in this case does not point to any credible reason for
doubting his testimony. Moreover, he submits that the Board misapprehends the evidence
he gave, in particular regarding the production of posters and leaflets.
[31]
The Applicant argues that it is “ridiculous” for
the Board to suggest that the Applicant is not at risk because his name was not
on the posters or leaflets. In fact, the Applicant states that, given the
serious repercussions, it would be surprising to find any names of AL members listed on posters or leaflets critical
of the BNP. Additionally, the Applicant argues that the Board’s finding that
the AL’s losing the election contradicts his assertion that his posters helped
increase the popularity of the AL is erroneous, as there is nothing contradictory between the
election results and the impact of the posters.
[32]
The Applicant further says that the documentary
evidence indicates clearly that the BNP wanted to silence any political
opposition both before and after the election. As such, the Applicant submits
that the Board erred in focusing only on the period leading up to the 2001 election
and by impugning the Applicant’s credibility on the basis that he had not been
targeted by BNP goons leading up to the election or during Operation Clean
Heart.
[33]
The Applicant also argues that the Board
committed a “clear legal error” by finding that he was at no greater risk than
other members of the AL. There
is no requirement that the Applicant be more at risk than other members in
order for him to succeed in establishing a basis for his refugee claim.
Moreover, the Applicant contends that the documentary evidence clearly shows
that members of the AL, and not just its leaders, are targeted.
[34]
The Applicant says that the Board erred in
drawing an adverse inference from his failure to produce other supporting
documentary evidence, especially given that his testimony was “uncontradicted
and credible.” In support of his position, the Applicant cites Justice Dolores
Hansen’s order in IMM-10509-04, Taramatti Murray, William Howard
Murray v. Minister of Citizenship and Immigration, dated October 31, 2005, in which Justice Hansen states that “…a tribunal may not reject a
claimant’s sworn testimony solely on the basis of a lack of documentary
evidence supporting the vive voce evidence.” Further, the Applicant
states that he testified to making reasonable efforts to obtain other documents
and, as a consequence, it was erroneous for the Board to rely on Rule 7 of the
Refugee Protection Division Rules and make a negative credibility finding.
[35]
The Applicant also submits that the Board erred
by rejecting or giving little weight to his corroborating evidence without any
reasonable explanation, especially given that the documents were “found to be
genuine.”
[36]
With respect to the police reports, the
Applicant contends that the Board committed a reviewable error by stating that
First Information Reports are easy to obtain without citing a source for that
proposition and without giving notice to the Applicant as required by Rule 18
of the Refugee Protection Division Rules that the Board was relying on its
specialized knowledge. In any event, the Applicant submits that he took
reasonable steps to obtain police reports by asking his uncle to obtain copies
of the complaints.
[37]
As regards the medical report documenting the
injuries the Applicant sustained on December 16, 2002, the Applicant submits
that there is no evidence to contradict that the injury was not sustained as a
result of his affiliation with the AL.
[38]
The Applicant also submits that it was patently
unreasonable for the Board to accord little weight to the letter written by the
General Secretary of the Awami Jubo League just because the General Secretary
did not mention details specific to the Applicant’s refugee claim. The
Applicant notes that the letter confirms that the Applicant was beaten,
harassed and threatened by BNP goons. Moreover, the Applicant argues that there
is nothing inconsistent with the General Secretary having knowledge of the
persecution of the Applicant while he was in Bangladesh and having received
further information about the Applicant’s family’s situation after the Applicant
left the country.
[39]
The Applicant further contends that the Board’s
findings that his father had not stopped teaching and that his mother’s
employment was not terminated for political reasons cannot stand because they
flow from the Board’s general finding that the Applicant was not credible.
[40]
With respect to the letter from Mr. Saha, the
Applicant submits that the Board exceeded its jurisdiction by requesting that
an officer with the Canadian Embassy visit police stations in Bangladesh to inquire about the Special
Powers Act. He argues that the fact that police stations do not have a list
of persons sought under the SPA is completely irrelevant and that the Amnesty
International Report supports his position that the government – and not just
the police – may order the detention of the Applicant under the SPA.
[41]
Also, in relation to the corroborating documents,
the Applicant submits that the Board erred in giving little weight to the
psychological report by Dr. Pilowsky because that finding flows from the Board’s
patently unreasonable analysis of the credibility of the Applicant’s refugee
claim.
[42]
Regarding the Board’s finding that it is
implausible that the Applicant’s father would not have told the BNP goons that
the Applicant was out of the country, the Applicant submits that this finding
is patently unreasonable. Aside from the fact that the jurisprudence requires
the Board to consider what is plausible in the context of the Applicant’s
background and culture (see for example, Divsalar v. Canada (Minister of Citizenship
and Immigration), 2002 FCT 653), the Applicant submits that the Board
provided no reasonable basis for concluding that the reasonable reaction for
the Applicant’s father would have been to inform the BNP that his son was out
of the country.
[43]
The Applicant also argues that the Board
breached the principles of procedural fairness by making a finding with respect
to the Applicant’s delay in claiming refugee protection without giving him an
opportunity to respond. The Applicant points out that at the hearing the Board
specifically stated that it was unnecessary to question the Applicant in
relation to the issue of the delay.
[44]
In summary, the Applicant contends that the
Board erred in dismissing the Applicant’s claims under both section 96 and
section 97 of the Act because the Board’s Decision is based on patently
unreasonable credibility findings.
The
Respondent
[45]
The Respondent argues that the findings made by
the Board were reasonably open to it and, consequently, the Court should
dismiss this application. The Respondent submits that it was reasonably open to
the Board to find the Applicant’s refugee claim was not credible without
rejecting his political membership activities or basing its findings on
contradictions or inconsistencies. Moreover, the Respondent challenges each of
the submissions made by the Applicant.
[46]
The Respondent says that there was nothing
erroneous in the Board’s finding that the Applicant was not directly involved
in preparing the contents of the leaflets, or in the Board’s referring to the
fact that the Applicant’s name did not appear on the posters or leaflets and
doubting his assertion that he was targeted because the materials he produced
criticized the BNP. The Respondent argues that the mere fact that the Board was
not satisfied with the Applicant’s explanation is not sufficient to render its
finding patently unreasonable (see Soto v. Canada (Minister of Citizenship and Immigration), 2004 FC 1521; Maina v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 381 (QL)).
[47]
The Respondent also disagrees with the
Applicant’s position that the Board only considered the events leading up to
the election in October 2001. The Respondent submits that the Board did examine
the various incidents that allegedly occurred after the election.
[48]
The Respondent also says it was a fair
observation by the Board that the AL lost the 2001 election despite the Applicant’s claim that his
posters popularized the party. Nothing in evidence indicates that the posters
increased the AL’s popularity;
moreover, the Applicant did not provide the Board with a copy of the posters or
the leaflets he allegedly produced.
[49]
With respect to the Applicant’s lack of problems
during the election and Operation Clean Heart, the Respondent submits that this
fact is highly relevant to the determination of the credibility of the
Applicant’s claim that he was targeted by BNP goons in late 2002 and 2003,
given that the election period and its immediate aftermath were the most
volatile periods.
[50]
The Respondent argues that it was open to the
Board to find the Applicant was no more vulnerable to targeting than other
members of the AL who also distributed posters and leaflets. Mere membership in
the AL is not sufficient in
itself to support a serious possibility of persecution or risk to life. The
Respondent notes that even after it lost the election, the AL – as one of the largest political
parties in Bangladesh –
continued to wield significant political power. Further, the Respondents says there
was nothing erroneous in the Board’s pointing to the lack of independent
evidence that persons who distributed posters and leaflets were persecuted by
BNP goons.
[51]
Regarding the police reports, the Respondent
contends that it was reasonably open to the Board to make a negative credibility
finding from the Applicant’s failure to produce any evidence to substantiate
his assertion that his father made several complaints to the police on his
behalf. The Respondent also submits that the Board was entitled to comment on
the First Information Reports without citing a source or giving notice to the
Applicant under Rule 18. This is because such knowledge is clearly drawn from
the experience of the Board acquired in hearing claims from Bangladesh (see Bula
v. Canada
(Secretary of State), [1996] F.C.J. No. 876 (QL) (C.A.)).
[52]
With respect to the Board’s treatment of the
Applicant’s corroborating evidence, the Respondent contends that the Applicant
has not established any overriding error in the Board’s assessment. The
Applicant merely takes issue with the weight given to the evidence. As such,
the Respondent submits that no intervention by the Court is warranted as the weighing
of evidence is at the core of the Board’s jurisdiction (see Olah v. Canada
(Minister of Citizenship and Immigration), 2001 FCT 382).
[53]
The Respondent also submits that it was
reasonably open to the Board to reject the Applicant’s explanation that his
father refrained from telling the BNP goons that the Applicant had left the
country because he allegedly worried that they might still make his son’s life
miserable.
[54]
Regarding the Applicant’s delay in making a
refugee claim in Canada, the Respondent submits that, on the evidence, it was
open to the Board to conclude that on a balance of probabilities the
Applicant’s marks were not good enough to allow him to continue his studies and
that he was seeking another way to stay in Canada. In particular, the
Respondent notes that, at the hearing, the Applicant did not know whether the University of Windsor would allow him to continue his studies there; this indicates that
he had simply dropped out of school after December 2003.
[55]
As for the issue of procedural fairness, the
Respondent submits that the Board gave the Applicant the required notice that
delay was an issue by asking him about his status as a student at the University of Windsor.
[56]
Finally, the Respondent contends that the
Board’s finding that the Applicant would not face danger or torture if he
returned to Bangladesh was
supported with valid reasons and evidence, including information from the
Canadian Embassy about the likelihood of the police seeking the Applicant.
The Applicant’s Reply
[57]
The Applicant replies to the Respondent’s
contentions and says that the Board failed to give any reasons for rejecting his
evidence that he had problems as a result of his creating and distributing
materials on behalf of the AL. Rather, the Board’s only reason was that he was
not targeted during Operation Clean Heart. The Applicant submits that the
documentary evidence does not support a finding that because a person was not
arrested during Operation Clean Heart it means that he or she is not at risk of
targeting by the BNP goons.
[58]
The Applicant further replies that his claim is
not based merely on his membership in the AL but rather on his participation in a “highly critical” poster and
leaflet campaign that targetted the BNP. The Applicant contends that the fact
that others who did similar work were also targeted does not diminish his claim
that he meets the definition of a Convention refugee.
[59]
The Applicant reiterates that the Board set an
impossibly high burden for him to meet with regards to documentary evidence
supporting his assertion that persons producing and distributing the posters
and leaflets were at risk.
[60]
With respect to the evidence related to the
First Information Reports, the Applicant submits that the case cited by the
Respondent, Bula, above, is distinguishable as the evidence in question
in that case was a psychological report provided to the Board by the claimant.
In the present case, the Applicant states that he should have been given the
opportunity to respond to the evidence relied on by the Board in respect of the
First Information Reports.
ANALYSIS
[61]
In its reasons, the Board does not point to any
omissions, inconsistencies or contradictions in the Applicant’s PIF or in his
testimony at the hearing in dismissing the Applicant’s claim for refugee
protection. I note also that the Board did not conclude that the Applicant is
not a credible witness. Rather, the Board refers to a number of
implausibilities and an insufficiency of supporting documentary evidence to
justify a finding that the basis for the Applicant’s refugee claim is not
credible. Ultimately, the Board did not believe that the Applicant is being
persecuted by BNP goons or the police because of his political opinion, or that
his life is at risk. The Board determined that, save possibly the incident on
December 16, 2002, the alleged attacks against the Applicant and his parents
did not happen. Moreover, as the Board concluded that the Applicant had not
established a well-founded subjective fear of persecution, it did not go on to
consider the objective basis for the Applicant’s refugee claim, namely, the
existence of an internal flight alternative and of adequate state protection.
[62]
It is clearly within the expertise of the Board
to determine whether the Applicant has established that the incidents he
alleges to be at the root of his claim for refugee protection have indeed
occurred. It is also within the Board’s expertise to consider and weigh the
evidence underlying the Applicant’s refugee claim to determine the plausibility
of that evidence and the conclusion it is intended to support. For instance, it
was open to the Board to note that the letter of termination received by the
Applicant’s mother was dated six months after his parents allegedly went into
hiding in questioning the bona fides of the Applicant’s allegations of a
subjective fear of persecution. However, upon reviewing the record and the
Board’s reasons as a whole I am of the opinion that a sufficient number of the
Board’s plausibility findings are patently unreasonable and, as such, taint the
Board’s overarching conclusion that the Applicant is not being targeted by BNP
goons because of his political activities with the BCL and AL. Consequently, I
find that the Board committed a reviewable error in dismissing the Applicant’s
claim for refugee protection as it did. My reasons are as follows.
[63]
Essentially, the Board did not accept that BNP
goons would be interested in the Applicant as he was not a leader of the AL or presumed to be the author of the
posters and leaflets criticizing the BNP. The Board did not believe the
Applicant’s explanation that the BNP goons found out it was he who produced the
posters and leaflets and that the goons were interested in the Applicant even
though he was not the author of the content contained on the posters and in the
leaflets. The Board also discounted the documentary evidence – namely, the
medical report from Dr. Chowdhury’s in relation to the wound suffered by the
Applicant on December 16, 2002, the letter of termination of employment
received by the Applicant’s mother, and the letter from Mr. Azam, General
Secretary of the Awami Jubo League – provided by the Applicant, which he says
supports his contention that he is targeted by the BNP authorities and goons
because of his political opinion.
[64]
I note that the Board does not dispute the
Applicant’s assertion that he is a member of the BCL or that he produced
posters and leaflets criticizing the BNP which were distributed during and
after the October 2001 election. However, the Board finds the Applicant’s
refugee claim not credible because of an absence of “independent evidence” that
persons distributing posters and leaflets for the AL are being targeted by the
BNP government and goons, as well as the Applicant’s own testimony that he was
not targeted during the election or during Operation Clean Heart.
[65]
In reviewing the record before the Board, I find
there to be documentary evidence that it is not only persons who are in
leadership positions with the AL who are vulnerable to attacks by the BNP government and goons. For
example, the Response for Information (RFI) Request, BGD40168.E dated December
9, 2002 (see page 115A of the Certified Tribunal Record), provides evidence
that opponents of the BNP – which includes ordinary members and supporters of
the AL – have been arrested and
detained by BNP authorities and attacked by its goons. The RFI Request states
that a BBC article published on September 1, 2002 reports that “nearly 300” AL supporters were arrested by Bangladeshi
police hours before a nation-wide general strike was held. The leader of the
AL, Sheikh Hasina, is also reported as alleging that the BNP-Jamaat-Shibir
cadres are unleashing terrorism across the country and that the government is
filing “false cases” against AL
workers. Moreover, Amnesty International is reported as calling on the
government to stop using politically motivated criminal charges to harass
members of the opposition. The September 6, 2002 report of Amnesty
International (see page 115E of the Certified Tribunal Record) indicates that
the SPA – which was promulgated by the AL government of Sheikh Mujubur in 1974 – is being used to detain
members of opposition parties and that each year thousands of people have been
detained under the SPA.
[66]
Regarding the Applicant’s corroborating
documents, while it is open to the Board to assign little weight to the
documents such a decision must be supportable especially, as in this case,
where there is no allegation that the documents are fraudulent in any way. In
respect of the letter from Mr. Azam, the Board relies on the Applicant’s
supposition that Mr. Azam probably came to know of the current situation for
the Applicant’s family from the Applicant’s uncle to impugn the entire letter,
including Mr. Azam’s statement that the Applicant was targeted by the
BNP-Jamaat, which led the Applicant to leave Bangladesh. The Board does not provide any other reason for questioning the
genuineness of the content of Mr. Assam’s letter. In my opinion, the Board’s reason for discounting Mr.
Azam’s letter is not sound. I note that the Board does not dispute that Mr.
Azam and the Applicant knew each other personally during the time that the
Applicant was politically active with the BCL. It is plausible that Mr. Azam
would be aware on his own that the Applicant was being targeted by BNP goons.
It is also plausible, therefore, that the source of that information was not
the Applicant’s uncle. While I agree that the information Mr. Azam had about
the Applicant’s family’s current situation likely came from the Applicant’s
uncle when he asked Mr. Azam to write the letter, in my view, this does not
discredit the evidence of Mr. Azam regarding the Applicant’s political
activities with the BCL and the targeting by the BNP that allegedly ensued. In
respect of the medical report from Dr. Chowdhury, in my view, it is plausible
that Dr. Chowdhury would not have stated the alleged cause of the Applicant’s
wound in his report. I note that during the hearing neither the RPO nor the
Board specifically asked the Applicant about the medical report including
whether he had told Dr. Chowdhury how he sustained the wound.
[67]
Overall, given the above documentary and
corroborating evidence, I find that the Board erred in concluding that no
independent evidence in support of the Applicant’s contention that ordinary
workers and supporters of the AL, like himself – namely, the creators and distributors of posters
and pamphlets criticizing the BNP – are being targeted by the BNP government
and its goons. Moreover, I am of the opinion that it was patently unreasonable
for the Board to reject the basis for the Applicant’s allegation of persecution
as it did, given that the Applicant’s own evidence was uncontradicted and that
he produced evidence consistent with his claim, namely the letter from Mr.
Azam, the medical report from Dr. Chowdhury, and the police complaint filed on
May 25, 2003 by the Applicant’s father reporting that someone had called and
threatened to hurt the Applicant.
[68]
In my view, these errors made by the Board in
reaching its conclusion that the incidents alleged by the Applicant did not
occur are sufficient to warrant the Court’s intervention. In fact, the Board’s
determination that the Applicant’s allegation that he was targeted by BNP goons
is not credible was the basis for undermining much of the other supporting
documents and evidence provided by the Applicant. For example, this finding led
the Board to state that it did not believe that the December 1, 2003 incident –
in which BNP goons allegedly came to the Applicant’s parent’s house looking for
the Applicant – occurred, nor that the Applicant’s parents are in hiding.
[69]
Moreover, with respect to Mr. Saha’s letter
regarding his investigation into the interest of the Bangladeshi police in the
Applicant, I am of the view that the Board did not have a sufficient basis for
discrediting Mr. Saha’s letter. The Board acknowledged that it had received
confirmation that Mr. Saha is a member of the Bar in Bangladesh and provided no reason to question the genuineness of Mr. Saha’s
letter. However, the Board discounts Mr. Saha’s letter on the basis of
information it received through the Canadian Embassy in Bangladesh. Based on that information, the
Board found it was implausible that the police were looking to arrest the
Applicant under the SPA because he did not fall into any “special
circumstances” that would warrant his arrest. In my view, the evidence does not
clearly invalidate Mr. Saha’s suggestion that the police might arrest the
Applicant under the SPA. In fact, the Amnesty International report of September
2002 indicates that the SPA has been used by the BNP, and the AL in the past,
as a means to control and silence opposition. Further, I agree with the
Applicant that the Board overstepped its jurisdiction by essentially taking
judicial notice of the police practice in relation to the SPA. The Respondent
states that the Board was drawing on its experience in hearing refugee cases
from Bangladesh, but if such
were the case it seems likely that the Board would have been able to provide a
source for this information. With respect to the source being the Canadian
Embassy, I note that it is unclear from the Board’s reasons how the information
was communicated by the embassy to the Board. In any event, given the current
political situation in Bangladesh, it is plausible that the powers under the SPA are being used in
ways beyond what the legislation was originally intended for.
[70]
Finally, regarding the issue of delay in
claiming refugee status, I am of the view that the evidence does not support
the Board’s finding that, essentially, the only reason the Applicant made a
refugee claim was because his marks were not good enough to allow him to
continue studying at the University of Windsor. Although at the hearing held in
August 2004 – eight months after his term at the University of Windsor ended –
the Board asked the Applicant whether he thinks the University of Windsor would
allow him to return to the school, there is no indication in the record before
the Board that the Applicant could not return to the University of Windsor, or
that he could not have attended another educational institution on the student
visa he possessed. Consequently, I am of the opinion that it was not open to
the Board to speculate on the reason for the Applicant not filing his refugee
protection claim until January 2004. Moreover, I note that the Applicant did
give a reason in his PIF for not claiming refugee status earlier than he did.
He stated that since his father could support him financially, the Applicant
thought he could study and begin a new life in Canada. However, he added, when problems for him in Bangladesh became
worse day-to-day, he felt he had no alternative but to apply for refugee
status, which consequently jeopardized his status as a student in Canada.
During the hearing, neither the RPO nor the Board questioned the Applicant
about the reasons he gave in his PIF for not making a claim for refugee
protection when he first arrived in Canada. As to whether the Board breached
the principles of procedural fairness in making a finding with respect to
delay, I agree that the Board should have given the Applicant and opportunity
to respond if the Board did not accept the Applicant’s explanation as to why he
waited until January 2004 to file his claim for refugee protection. However, in
reading the Board’s reasons, it appears that the Applicant’s delay in making
his refugee claim was not determinative of its conclusion that the Applicant
has not established a subjective fear of persecution. Rather, the Board
reiterated that this conclusion is based on its finding regarding the
credibility of the incidents underlying the Applicant’s refugee claim. As such,
I find that the Board did not breach the principles of procedural fairness in
not questioning the Applicant on the explanation he provided for his delay in
claiming refugee protection in Canada.
[71]
In summary, I am of the view that the implausibility
findings which significantly underlie the Board’s determination that the
incidents on which the Applicant’s claim is based cannot stand.
[72]
As the Respondent points out, it is trite law
that the assessment of credibility is at the core of the Board’s competence and
the Court cannot interfere provided there is some factual basis for the
Decision, even if mistakes were made.
[73]
At the hearing of this application, the counsel
for the Respondent offered the following as providing a sound basis for the
Decision:
a)
There was no explanation as to how the Applicant
had come to the attention of the agents of persecution;
b)
It was not plausible that the Applicant was
attacked after a period of significant turbulence when he was not attacked
during the time of the 2001 election and Operation Clean Heart;
c)
The delay in leaving Bangladesh when he had a
passport and his life was in danger, and the delay in making the refugee claim
once he arrived in Canada.
[74]
I do not believe that these factors are
sufficient to justify the Decision. The Board found no inconsistencies,
contradictions or omissions in the evidence that the Applicant did provide. In
fact, the Board appears to have disregarded the evidence that the Applicant
provided and to have relied almost entirely upon its own sense of what is
plausible and what is not. And, on the delay factor, the Tribunal Record at
pages 371 and 385 makes it clear that the issue of delay was not raised and the
Board did not want questions on it.
[75]
As regards the timing of the attack, there was
no evidence before the Board that AL members were not attacked after the election and the period of high
turbulence. Hence, there was nothing before the Board (other than its own musings)
to refute the clear evidence given by the Applicant on this crucial issue.
[76]
As regards the lack of information as to how the
goons were able to discover the Applicant and the role he had played, there
were numerous factors that suggest that the Board’s conclusions on this point
were far from inevitable. This factor is not an acceptable basis for a Decision
on credibility where there was a heavy preponderance of evidence that supported
the Applicant’s account that was neither contradicted nor questionable in any
other way.
[77]
This is one of those rare occasions when the Court
must interfere with a decision based upon credibility. The Applicant has raised
a vast number of concerns with the Decision. As I have indicated, I agree with
the Applicant’s conclusions on most points. Taken cumulatively they render the
Decision patently unreasonable and I can find no line of reasoning on
evidentiary basis upon which the Decision can stand.
ORDER
THIS COURT
ORDERS THAT:
1.
The Application is allowed and the matter is
returned for reconsideration by a differently constituted Panel.
2.
There is no question for certification.
“James Russell”
Judge
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