Date: 20061005
Docket:
IMM-4218-05
Citation: 2006 FC 1183
BETWEEN:
KHAN TASLIMA HASSAN
KHAN FARHEEN
HABIBUR RAHMAN, MOHD
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing of an application for judicial review of a decision
of the Refugee Protection Division (the “RPD”) of the Immigration and Refugee
Board wherein the RPD determined the Applicants not to be Convention refugees
or persons otherwise in need of like protection to that afforded in Canada to
Convention refugees. The decision of the RPD is dated the 23rd of
June, 2005.
BACKGROUND AND FACTUAL
FINDINGS OF THE RPD
[2]
The
RPD summarized the background to the Applicants’ claim for protection in the
following terms:
Mohd. Habibur Rahman,
male claimant, Taslima Hassan Khan, female claimant, and their daughter Farheen
Khan, minor claimant, are citizens of Bangladesh. The male claimant ran
a successful freight forwarding and clearing agency, Cosmic Cargo Service, and
was an active member of the Bangladesh National Party (BNP). After the
election of the Awami League (AL) government in 1996 the AL began to
harass and extort the male claimant. His business began to fail. Homebound
Packers and Shippers, a business competitor believed to be in collusion with
the AL, commenced
criminal proceedings alleging the male claimant had passed bad cheques to cover
outstanding business debts. The male claimant made several unsuccessful
attempts to resolve these debts. When the male claimant refused to sell his
business to AL rivals
threats were made against the female and minor claimants.
Things came to a head
when the male claimant refused to close his business during an AL lead [sic]
hartal or strike. The offices were ransacked and burned. The male claimant
was threatened. AL goons chased the male claimant in May 2000 and
an attempt to kidnap the female claimant occurred shortly thereafter. The
claimants applied for Canadian visitors visas approximately a week later and
came to Canada in July
2000. The claimants applied for refugee protection on August 2, 2000.
In these reasons, I will utilize the
descriptive terms and contractions used by RDP.
[3]
After
expressing concern with regard to the male claimant’s evidence before it, the
RPD concluded that “…the male claimant’s problems in providing evidence are
attributable to his psychological challenges rather than any intent to mislead
or misrepresent.” The RPD found the female claimant’s evidence entirely
trustworthy and credible. On the basis of the foregoing findings and taking
into account the documentary evidence before it, the RPD accepted the following
allegations of the claimants as true:
·
the
male claimant was both a member of the BNP and a successful businessperson;
·
the
male claimant’s business success made him a target of the rival political
party, the AL;
·
following
the election of the AL government the male claimant faced business
difficulties;
·
Home
Bound Packers, one of the male claimant’s creditors, is connected with the AL;
·
The
male claimant provided four cheques to Homebound Packers which were not
honoured. These were the subject of criminal proceedings. The male claimant
was acquitted on one charge in April 2000. He was convicted on another in
August 2000. The outcome of the charges pertaining to the other two cheques is
not known;
·
The
claimants were physically threatened by AL supporters.
The female claimant was the subject of an attempted kidnapping. The claimants
decided to leave Bangladesh as a result of these threats and not as an
attempt to evade the criminal proceedings.
[footnoted
citations omitted]
DETERMINATIVE FINDINGS
AND CONCLUSIONS OF THE RPD
[4]
The
RPD determined that the political climate that had caused the claimants’ problems
in Bangladesh had
“…changed dramatically with the election of the BNP government in October
2001.” It acknowledged that the male claimant had had strong disagreements
with the faction of the BNP that, based on an alliance by that faction with the
fundamentalist Jamaat-Islamia party, had led the BNP to assume power. The RPD
nonetheless found that the male claimant remained “…a long-standing and loyal
party member who continues to have the support of members of the BNP
executive.” It based the last preceding finding on documentary evidence that
was before it. In the result, it found that the male claimant’s “political
allies” had assumed power and that therefore he would no longer have difficulty
with the police. In effect, the RPD concluded that changed circumstances in Bangladesh would result
in “adequate state protection” for the claimants.
[5]
In
the result, the RPD found that the claimants had not established a well-founded
fear of persecution in Bangladesh in the circumstances
prevailing at the time of the decision and were not persons in need of
protection. In light of that finding it determined that it was unnecessary to
consider the possibility that the male claimant might be excluded from refugee
protection and that there were no compelling reasons which might support a
positive determination in favour of the claimants, particularly given the
changed circumstances in Bangladesh.
THE ISSUES
[6]
Counsel
for the claimants urged in his memorandum of fact and law that the sole issue
on this application for judicial review is whether the RPD erred in law “…by
failing to determine that part of the applicants’ claim for persecution in Bangladesh relating to
internecine violence within the Bangladesh National Party…”. Before the Court,
counsel summarized the same issue in more general terms as whether or not the
RPD erred in a reviewable manner in failing to consider all relevant issues
arising out of the claimants’ claims.
[7]
In
support of the claimants’ claims, on the 6th of February, 2006, the male
claimant filed a supplementary affidavit annexing substantial documentation,
some of which predated the hearing before the RPD and some of which post-dated
the hearing, and none of which was before the RPD. Counsel for the Respondent
objected to the Court considering the material that was not before the RPD and
any arguments based on that material.
[8]
In
Lumbega v. Canada (Minister of Citizenship
and Immigration) my colleague Justice
Layden-Stevenson wrote at paragraph 4 of her reasons:
The document contained
at page 37 of the applicant’s record…was not before the RPD and its inclusion
in the application record is improper. Judicial review concerns the review of
a decision for the purpose of assessing its legality. The reviewing court must
proceed on the record, as it exists, confining itself to the criteria for
judicial review:…
[9]
The
Court advised counsel for the claimant that the male claimant’s supplementary
affidavit and any submissions based thereon would not be considered.
ANALYSIS
[10]
With
great respect to the claimants and their counsel, the RPD did not ignore the
issue of whether the claimants would suffer persecution due to internecine
violence within the BNP. Counsel for the claimants argued that, because the
male claimant was allied with the faction within the BNP which was out of
favour within the BNP at the time of the hearing before the RPD, the claimants
could not expect support if they were to return to Bangladesh. In essence,
counsel for the claimants urged, while political conditions in Bangladesh had changed
since the time the claimants left there, they had not changed in a manner or to
a degree such that the conditions that led the claimants to leave Bangladesh would no
longer prevail.
[11]
While
the male claimant filed amendments to his Personal Information Form to support
his position on the foregoing issue, his testimony before the RPD, on the same
issue was not persuasive. Further, the claimants filed, before the RPD, a
certificate, earlier referred to, dated 3/6/2001, attesting to the male claimant’s
continuing membership in the BNP. The certificate was signed by the Convenor, Bangladesh Nationalist Party Narayanganj
Metropolitan City, Member –
Executive Committee and read, in part: “…Md.Md.Habibur Rahman Khan is a man of
exemplary character, amiable in conversation, social worker, and a humanitarian
leader. He is an exemplary member and worker of the Bangladesh Nationalist
Party. Personally I wish him and his family all happiness and
long life.” The RPD specifically referred to the
quoted document in its reasons.
[12]
I
am satisfied that, on the totality of the evidence properly before the RPD, it
was open to the RPD, whether against a standard of review of reasonableness simpliciter
or against a standard of patent unreasonableness, to find, as it did, that the
election in Bangladesh, after the claimants left that country, of a government
that included the BNP, resulted in a change of circumstances in Bangladesh that
reduced the risk that the claimants would be persecuted or otherwise ill treated
to the point where they would not be persons in need of Canada’s protection.
In the result, its conclusion that the claimants are neither Convention
refugees nor persons in need of protection was also open to it. Put another
way, the claimants simply failed, on the totality of the evidence before the
RPD, to meet the onus on them to satisfy the RPD that they are entitled to
Convention refugee status or are persons otherwise in need of Canada’s protection.
[13]
For
the foregoing reasons, this application for judicial review will be dismissed.
CERTIFICATION OF A
QUESTION
[14]
At
the close of the hearing of this application for judicial review, counsel were
advised that the application would be dismissed and brief oral reasons were
provided. Counsel for the Applicants, orally, proposed a question for
certification and briefly urged that it was a serious question of general
importance. Counsel was invited to reduce the question to writing and to provide
it to the Court and to counsel for the Respondent in order to provide counsel
for the Respondent with a reasonable opportunity to respond.
[15]
The
question proposed in writing was in the following terms:
Given that the practice
at the Toronto office of the Immigration and Refugee Board is for the member at
the start of a hearing to review the issues raised by the claimant in their
Personal Information Form, and narrow the issues subject to viva voce
evidence; does a legal duty or onus nonetheless remain upon the claimant to
formally confirm at that time that none of the bases of their claim to
Convention Refugee status has been withdrawn?
No written argument in support of the
proposed question was provided.
[16]
Counsel
for the Respondent urged in writing against certification of the proposed
question: first, that it does not meet the test for certification, that is,
that it does not transcend the interests of the immediate parties and
contemplate issues of broad significance or general application that would be
determinative of an appeal from my decision herein; and
second, that the question proposed simply does not arise on the facts of this
matter.
[17]
Counsel
for the Applicant replied in writing urging that the proposed question does
meet the test for certification and does arise on the facts of this matter. In
support of counsel’s submissions, he cites Guinez v. The Minister of
Citizenship and Immigration.
[18]
With
great respect to the Applicant, I am satisfied that it is clear beyond question
that, despite what may transpire at the opening of a hearing when the range of
issues before the RPD is discussed, the legal duty or onus remains on a
claimant to make out his or her claim in clear and unmistakeable terms.
The transcript of the hearing before the RPD clearly discloses that the
“agents of persecution today” was an issue before the RPD relating to the
objective component of the claimants’ claim. The issues before the RPD were
not narrowed. More specifically, the issue of “agents of persecution today”
was not withdrawn.
As stated in paragraph 11 of the reasons for decision in Ranganathan:
…A failure by a claimant
to fulfill his obligations and assume his burden of proof cannot be…imputed to
the Board so as to make it a Board’s failure.
[19]
For
the foregoing reasons, I am satisfied that no serious question of general importance
that would be dispositive of an appeal from my decision herein arises. No
question will be certified.
“Frederick
E. Gibson”
JUDGE
Ottawa, Ontario
October
5, 2006
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