Date: 20060928
Docket: IMM-7777-05
Citation: 2006
FC 1155
Ottawa, Ontario,
September 28, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
SAFRAN
CHOWDHURY
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
judicial review application by Safran Chowdhury (the applicant) a citizen of
Bangladesh challenges the rejection of his refugee claim on December 1, 2005 by
the Refugee Protection Division (the tribunal) who decided he had not
established through credible evidence his story.
[2]
He claimed
refugee status on the ground of his political involvement in the Awami League
which he stated began, especially on the cultural side, in 1999 in its Student
Branch, then continued when he joined the Awami Jubo League in early 2000
becoming a member of the Executive Committee in September 2000 and, in January
2003, the Cultural Secretary of his unit.
[3]
His
political activities, he claimed, brought several attacks on him from goons
associated with rival political parties, and, in particular, the Bangladesh
Nationalist Party (BNP).
[4]
He
enumerated the following attacks:
§
A few days
after the BNP won the elections in October, 2001 he was attacked and
beaten by a group of BNP goons led by Goru Swapan. He was injured and required
medical attention. He made a complaint to the police. However, he said the
police were not able to arrest the goons;
§
On March
25, 2002, he and nine other Awami League members were arrested by the
police because of a demonstration they organized to protest a police attack on
central Awami League leaders in Dhaka.
He was detained for one night, mistreated and released after a bribe was paid
to the police;
§
In November
2002, Goru Swapan and his goons came to his store asking for a donation.
He refused. He was beaten and his store looted. He complained to the police.
Goru Swapan and another goon were arrested. He was threatened by the other
goons;
§
In February
2003, he was again attacked in a street by BNP goons and beaten. His
complaint to the police did not produce results;
§
On December
16, 2003, he organized a theatrical performance in order to commemorate
Victory Day. He made a speech. He criticized growing Muslim fundamentalism
and the persecution of Awami League members by BNP goons and the police. The
performance was interrupted by an attack by BNP goons, led by Goru Swapan who
yelled a death threat at him and fired gunshots in his direction. He managed to
escape. He went into hiding at his aunt’s home. The same night the BNP goons
raided his home. His father called the police who did not show up;
§
On December
20, 2003 the police came to his residence to arrest him. They refused to
tell his father the reasons for his arrest. His father hired a lawyer who
learned from the police, while no case was registered against his son,
nevertheless they wanted to arrest him under a special security law. He was
afraid for his safety. He decided to leave Bangladesh;
§
On January
4, 2004, while he was still in hiding, the police arrested his father. His
father was interrogated and mistreated. He was told to produce the applicant;
§
On January
5, 2004, helped by a smuggler he left Bangladesh. He came to Canada on January 23, 2004 and claimed
protection; and
§
On February
10, 2004, while he was already in Canada,
the BNP goons again came to his father’s house looking for the applicant. They
asked his father for money. He refused. He was shot and killed by the goons.
His mother filed a case with the police naming the perpetrators but no one was
arrested.
The
tribunal’s Decision
[5] At
the start of the tribunal’s hearing, a designated representative was appointed
for the claimant, who is twenty-four years old. That appointment was made
following recommendations by Mr. Woodbury in his psychological assessment of
the applicant (Exhibit P-12).
[6] The focus of the tribunal’s reasons centered on the
following elements: (1) the manner he testified versus Mr. Woodbury’s diagnosis
(2) the applicant’s allegation his father was killed in February, 2004 when the
goons came looking for him in light of his lawyer’s letter (3) the December 16th
theatrical performance during which he was threatened by BNP goons (4) his
coming out of hiding to pick up his driver’s licence and (5) the lack of
corroborative evidence and, in particular, photographs of himself engaged in
various demonstrations or events.
[7] The tribunal arrived at its credibility findings
principally on the basis of the implausabilities in his story or in the
explanations he gave when confronted.
§
It found
he testified without any difficulty despite the psychological report indicating
he had serious memory and concentration problems which led to the
recommendation that a designated representative be appointed. The tribunal
said he remembered precisely all the dates mentioned in his PIF and all the
details of the events set out there. It stated he was articulate and did not
seem to have any problems in understanding the questions which were asked of
him. It acknowledged he became emotional and cried when he was asked to
testify about his father’s death. The tribunal found this was understandable;
§
It was
critical of the applicant for not taking the medications and psychotherapy he
had been prescribed. The tribunal concluded he did not do anything to alleviate
“his allegedly very serious symptoms of post-traumatic stress disorder (PTSD)
coupled with panic attacks and major depressive episodes.
§
The
tribunal stated it had very serious problems as to the reliability of the
psychological evaluation “particularly in that it is based on a story told by
the claimant himself, a story which I found not credible”;
§
Exhibit
P-7 is a lawyer’s letter dated May 26, 2004 stating the police were
still looking for the applicant. The tribunal rejected that letter because,
while mentioning his father’s January 2004 arrest by the police, the letter did
not mention his father had been killed by BNP goons in February of that year
despite the fact the applicant had testified he had asked his lawyer to provide
him with documents concerning the police investigation into his father’s
death. The tribunal rejected his explanation the omission was because he had
asked his lawyer to confirm the advice he had given on his investigation why the
police wanted to arrest him on December 20, 2003.
§
The
tribunal, in its reasons, also mentioned the applicant’s testimony that he had
talked to his lawyer several times since coming to Canada and during one of
those conversations he was informed by his lawyer the report by his mother to
the police about her husband’s killing and what was in the file did not mention
the names of the goons given by his mother, but only that his father had been
killed by some miscreants. The tribunal stated P-7 made no mention of these
facts. The tribunal concluded his father was not shot to death by goons who
were looking for the applicant. It did not believe the goons had targeted the
applicant and were still looking for him. [Emphasis mine]
§
The
tribunal rejected as not being plausible the applicant’s description of
the December 16, 2003 theatre performance. It quoted his PIF where he
described that “he saw Hashem (Goru Swapan) running at me with a short gun,
shouting “today we are going to kill you”. “I ran to the rear of the stage and
heard the sound of two shots.” With respect to this written passage in his
PIF, the tribunal stated his oral testimony of the event during the hearing was
not plausible:
“He was not able to reasonably explain how he could hear
the verbal threat directed to him in a situation of generalized panic,
which followed the attack of some thirty to thirty five goons on a public
composed of about two hundred to two hundred and fifty people. He was on the
stage where he was reciting a poem and the goon, who threatened him, was
allegedly below, at a distance of twenty to twenty-five feet. He was not able
to reasonably explain how he was able to continue the recitation, when the
goons, shouting slogans, were making their way from the side of the stage,
through the crowd, towards him. Based on the claimant’s testimony I do not
believe that such an event ever took place”. [Emphasis mine]
§
The
tribunal then turned to the circumstances surrounding the applicant’s renewal
of his driver’s licence which he personally picked up, accompanied by his
uncle, from the government offices on December 20, 2003 in Chittagong where he lived coming out of
hiding from his aunt’s house in a village 12 kilometres away for this purpose.
He was asked if he was not afraid to get out of hiding and be seen by the
goons. The tribunal stated the applicant replied he was afraid and that is why
he went to the motor vehicle license office with his uncle. The tribunal said
it responded by asking the applicant to explain why claiming his driver’s
licence at a time when he was in hiding and when he already had made his
decision to leave Bangladesh was so important that he was ready to risk to be
seen by the goons and possibly killed. The tribunal wrote:
“The claimant answered that he “might
need it” and repeated that maybe he would need it later. I do not consider
these explanations satisfactory. I do not believe that the claimant would have
risked going out of hiding in order to claim his driver’s licence without any
particular necessity, just because “he might need it” in the future. I find
it even more implausible because, according to his testimony, at that time, he
had already made his decision to leave Bangladesh, and therefore, would not need his
driver’s licence. Consequently, I do not believe that the claimant was in
hiding in Bangladesh before he left his country,
since I do not believe that he ever needed to do so.” [Emphasis mine]
§
Finally,
the tribunal turned to the corroborating documents which the applicant had
produced namely Exhibit P-4, a letter from the Awami Jubo League, two posters
with his name on them as cultural secretary (Exhibits P-5 and P-6), a letter
from a doctor who allegedly treated him in 2001 and (Exhibit P-9), a letter of
appreciation from the Awami Jubo League (Exhibit P-11). The tribunal stated
the applicant testified the posters were sent to him by the President of his
Unit. However, it was critical the of applicant, who allegedly was often in
the front of the stage, as an organizer, and as a master of ceremonies of
cultural events and had participated in various political processions and
demonstrations did not produce even one of the photos taken during his
political activities. He was asked “why such convincing, corroborating
evidence was not produced”. It quoted his answer “there were many photos taken
of him during the past, but he could not produce any, because the organizing
secretary, who had those photos was also in hiding.” The tribunal then wrote:
“The claimant was asked if he could
produce such photos, if he was given additional time by the tribunal to do so.
He said that it would not be possible, because the organizing secretary was in
hiding. I do not consider this explanation satisfactory. The claimant
is in touch with his mother. He also allegedly has contact with the President
of his Unit. I do not find it plausible that, if photos were taken as they
usually are, none of his friends from his party unit executive or his mother at
home, would have a copy of such photos. As it is indicated in the
documentary evidence, and as it was mentioned during the hearing, false
documents are very easy to obtain in Bangladesh.
It is easy to print posters, as produced by the claimant or to obtain the
letters which he submitted. Consequently, I believe that the tribunal could
have expected to see photos of the claimant’s past political activities. I
draw from the absence of them a negative inference, as to the credibility
of the claimant’s allegations that he was a member of the Awami Jubo League,
and as such, participated in various public activities. [Emphasis mine]
[8] The tribunal then
concluded:
“Considering all the above, I conclude
that the claimant has not established that he was a member of the AJL, that he
was targeted by the BNP goons and by the police, or that there is a reasonable
possibility that he will be persecuted should he go back to his country.
Since I rejected the claimant’s testimony
as not credible, I do not give any weight in this case, to the documents which
he submitted in support of his allegations. Even if I believed that the
claimant suffers symptoms, which he presented to Mr. Woodbury, I do not believe
that they are the result of the events which he alleges. I also do not give
either any probative value to Mr. Woodbury’s psychological evaluation.” [Emphasis mine]
Analysis
and Conclusions
[9] The jurisprudence of this Court is clear to the
effect credibility findings are findings of fact and a tribunal’s decision
based on credibility can only be set aside within the parameters set out in
paragraph 18.1(4)(d) of the Federal Courts Act, that is, an erroneous
finding of fact that it made in perverse or capricious manner or without regard
to the material before it, a standard equivalent to the standard of review of
patent unreasonableness.
[10] The approach to be followed by a reviewing court on the factual
findings of an administrative tribunal is described by Madam Justice
L’Heureux-Dubé at paragraph 85 of her reasons for judgment on behalf of members
of the Supreme Court of Canada in Canadian Union of Public Employees, Local
301 v. Montreal (City )[1997] 1 S.C.R. 793:
“We must remember that the standard of review
on the factual findings of an administrative tribunal is an extremely deferent
one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp.
849 and 852. Courts must not revisit the facts or weigh the evidence. Only
where the evidence viewed reasonably is incapable of supporting the tribunal's
findings will a fact finding be patently unreasonable. An example is the
allegation in this case, viz. that there is no evidence at all for a
significant element of the tribunal's decision: see Toronto Board of Education,
supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J.
Such a determination may well be made without an in-depth examination of the
record: National Corn Growers Assn. v. Canada (Import
Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.”
[11] Justice Décary, on behalf of the Federal Court of Appeal, in Aguebor
v. (Canada) The Minister of
Employment and Immigration, 160 N.R. 316 wrote the
following with respect to implausibility findings:
“There is no longer any doubt that the
Refugee Division, which is a specialized tribunal, 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. In Giron, the Court merely observed that in the area of
plausibility, the unreasonableness of a decision may be more palpable, and so
more easily identifiable, since the account appears on the face of the record.
In our opinion, Giron in no way reduces the burden that rests on an appellant,
of showing that the inferences drawn by the Refugee Division could not
reasonably have been drawn. In this case, the appellant has not discharged
this burden.” [Emphasis mine]
[12] It goes without saying that, on judicial review, a reviewing court
cannot set aside an administrative tribunal’s decision unless the tribunal made
a reviewable error in reaching its decision. In other words, a reviewing court
cannot simply substitute its decision for that of the tribunal by re-weighing
the facts. Moreover an administrative tribunal’s decision should not be read
microscopically.
[13] My reading of the transcript of the tribunal’s two separate hearing
days, a careful review of its decision and a consideration of the arguments
leads me to the conclusion this application for judicial review should be
dismissed for the following reasons:
[14] Counsel for the applicant argued the tribunal’s fundamental error
was in its approach to fact-finding and its method of analysing the evidence
which consisted in first in making a negative credibility finding as a result
of a focus on discrete features of the applicant’s testimony and then, based on
this negative finding, rejecting very cogent documentary evidence citing
Justice Campbell’s decision in R.E.R. v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1339 where he stated the following at
paragraphs 8, 9, and 10:
“With respect to the RPD's analysis,
Counsel for the Applicants argues as follows:
[...] The Board
Member's failure to mention objective evidence that directly contradicted its
findings, and failure to explain why different evidence was preferred over
objective evidence, sworn testimony of the principal Applicant and his wife and
photographic evidence of the scars of torture, amounts to a reviewable error.
The Board Member had no regard for relevant evidence that went directly to the
issues of the Applicants' credibility, and the plausibility of torture which
gave rise to the principal Applicants' well-founded fear of persecution.
(Applicant's
Reply, para. 5.)
I agree with this argument, but I would
go further. I conclude that, from the words used in the reasons, the RPD used a
linear approach in evaluating the evidence submitted by the principal
Applicant. I find that the use of this linear approach denied natural justice
to the principal Applicant for two reasons.
First, it
is only fair and reasonable for parties to litigation to expect that the
decision-maker will consider the evidence in its entirety, with an open mind,
before making findings about the value to be placed on critical elements of the
evidence. For the general proposition that the evidence must be considered in
its entirety see Owusu-Ansah v. Canada (Minister of
Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.). In the present case, I
find that the RPD was in error in not considering the whole of the evidence,
including the wife's rape evidence and the cogent independent evidence about
the apparent effects of the torture and rape in the form of photographs and
reports, before making the critical finding of negative credibility against
the principal Applicant (also see Gonzalez v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 422, and Herabadi v. Canada
(Minister of Citizenship and Immigration), [2001] F.C.J. No. 1729).
Second, I find that the RPD was in error
by rejecting evidence which comes from sources other than the testimony of the
principal Applicant simply on the basis that the principal Applicant is not
believed. In my opinion, each independent source of evidence requires
independent evaluation. This is so because the independent sources might act to
substantiate an Applicant's position on a given issue, even if his or her own
evidence is not accepted with respect to that issue.”
[15] In my opinion, the criticism which Justice Campbell levelled at the
tribunal in R.E.R. cannot be transposed to the manner in which the
tribunal at hand reached its credibility findings.
[16] A reading of the tribunal’s decision shows, and this is supported by
the transcript of the hearings it reasoned by using a building block approach.
The tribunal isolated four distinct elements or events central to the
applicant’s case, considered all of the evidence both testimonial and
documentary connected with those elements or events, identified what troubled
the tribunal and took into account the applicant’s explanation before assessing
whether or not the applicant had brought sufficient credible and trustworthy
evidence to establish he was a member of the Awami League, was targeted by the
BNP goons and the police and whether there was a reasonable possibility that he
would be persecuted should he return to Bangladesh. In other words, the
tribunal did not arrive at its conclusion the applicant failed to make out his
case through credible evidence only based on the applicant’s testimony without
considering the whole of the evidence which is the crux of Justice Campbell’s
decision in R.E.R., supra.
[17] Counsel for the
applicant then argued the tribunal erred in making adverse findings of
credibility based on the implausibility of the applicant’s story invoking the
following principle endorsed by Justice Muldoon in Valtchev v. Canada
(Minister of Citizenship and Immigration) 2001 FCT 776 at paragraph 7:
“A tribunal
may make adverse findings of credibility based on the implausibility of an
applicant's story provided the inferences drawn can be reasonably said to
exist. However, plausibility findings should be made only in the clearest of
cases, i.e., if the facts as presented are outside the realm of what could
reasonably be expected, or where the documentary evidence demonstrates that the
events could not have happened in the manner asserted by the claimant. A
tribunal must be careful when rendering a decision based on a lack of
plausibility because refugee claimants come from diverse cultures, and actions
which appear implausible when judged from Canadian standards might be plausible
when considered from within the claimant's milieu. [see L. Waldman, Immigration
Law and Practice (Markham, ON: Butterworths, 1992) at 8.22]”
[18] How Justice Muldoon applied this principle is instructive because it
demonstrates his approach is consistent with Aguebor, supra: the
inferences drawn must be reasonable. What this means is such inferences must
be based on the evidence in the record and not be inherently subjective or
speculative.
[19] My reading of the transcript satisfies me for each of the inferences
drawn there was an evidentiary basis for each of them and consequently for the
implausibility finding in respect of the four elements which were the
foundation of the applicant’s case.
[20] There is one
exception. The tribunal erred in finding when he went to pick up his driver’s
licence on December 20, 2003 leaving his hiding place, he had already decided
to flee from Bangladesh. This finding is contrary
to the evidence as the applicant’s testimony is clear on the point. He made his
decision to flee on December 23, 2003 after the police came to his father’s
house to arrest him.
[21] This error however in my view does not diminish the strength of the
inference drawn: why would he risk being caught by the goons he feared and was
the reason why he went into hiding in the first place.
[22] The tribunal said the applicant had testified many photos had been
taken of him in the past. His counsel suggested this finding was contrary to
the evidence because he testified only a few photos had been taken of him. This
argument cannot be accepted; it entails a microscopic reading of the record.
Taken as a whole, the evidence supports the applicant testifying that several
photos of him carrying out his Awami League activities existed.
[23] Applicant’s counsel suggests instances where the tribunal misread
the evidence. I am not convinced. On the contrary, comparing the tribunal’s
reasons with the evidentiary record satisfied me that the tribunal carefully
considered the applicant’s testimony and documentary evidence and accepted it
in several instances where initially the tribunal had thought
otherwise.
[24] Finally, the record bears out the tribunal’s comment on how he
answered questions and his detailed recollection of events and the
jurisprudence justifies the treatment it accorded to any causal link in the
Woodbury report given the underlying credibility finding (see Randhawa
v. Canada (Minister of
Citizenship and Immigration) [1999] F.C.J. No. 606).
ORDER
THIS COURT ORDERS that this judicial review
application is dismissed. No certified question was proposed.
“Francois
Lemieux”
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