Date: 20051024
Docket: IMM-43-05
Citation: 2005 FC 1439
Ottawa, Ontario, October 24, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
MOHAMMED JAHANGIR ALAM
(a.k.a: ALAM JAHANGIR)
MOSHAMMATH SHAMSHAD ROOHI
(a.k.a.: ROOHI SHAMSHAD)
ZAIDAN MOHAMMAD JAHANGIR
AKRA MOSHAMMATH JAHANGIR
ADNAN JAHANGIR
KAMAL HOSSAIN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Mohammed Jahangir Alam is the principal Applicant in this application. In early 2003, the principal Applicant, his wife, his two sons, his daughter and Mr. Kamal Hossain, the principal
Applicant's brother (the "brother"), came to Canada from the United States and made claims for protection. Except for the daughter who was born in the United States, all are citizens of Bangladesh. In a decision dated December 14, 2004, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") rejected their claims. The Applicants seek judicial review of the decision.
Issues
[2] The Applicants have framed the issues as follows:
- Did the Board err in law with regard to its findings on the nature of the Applicants' involvement in politics?
- Did the tribunal err in law by ignoring evidence about the objective basis of the claim?
- Did the tribunal err in law with respect to credibility findings?
Background
[3] The principal Applicant was an active member of the former governing political party of Bangladesh, the Jatiyo Party ("JP"). He alleges that, between 1988 and 1991, before he fled to the United States, he was targeted by a "goon" of the current governing party, the BNP. He applied for refugee status in the United States and, in 1995, his family joined him and were joined in his claim. He asserts that BNP thugs continue to look for him, and that, if he returns to Bangladesh his life will be danger.
[4] The brother was also involved in JP activities and alleges to have been attacked and threatened by BNP goons and the police. He fled to the Untied States 1992 and claimed refugee status. According to his Personal Information Form ("PIF"), if returned to Bangladesh, the brother is at risk of being arrested, tortured, and killed due to his membership in the JP.
[5] All of the Applicants' refugee claims were denied in the United States. The Applicants remained illegally in the U.S. for some time, then entered Canada on February 22, 2003 and applied for Convention refugee status on that day.
Board's Decision
[6] The Board made a negative credibility finding against the brothers, based on inconsistencies and omissions among their PIFs and Port of Entry ("POE") notes and their testimony. Specifically, the Board found that each brother's fear of persecution was focused on a personal vendetta by a particular BNP goon, but that they had failed to identify those individuals at the POE or, in the brother's case, also in his PIF. In regards to the principal Applicant, the Board also found that it was implausible that Abu Mutaleb (a specifically-named goon) would know that the claimant was responsible for his imprisonment and thus have a vendetta against him. The Board also drew a negative inference from the principal Applicant's failure to include key information in his PIF about the ongoing, alleged persecution of his remaining, second brother in Bangladesh and the allegation that the second brother had moved several times to avoid harm. The brothers' explanation for this problem, that they were in a rush to flee the United Statesfollowing a heightened scrutiny on illegal immigrants, was not accepted by the Board.
[7] In making negative credibility findings, the Board commented on psychological evidence submitted by the Applicants that the brother was of borderline intelligence and would have difficulty answering questions. The Board stated that it did not draw a negative inference from the brother's demeanour or inability to understand questions, but from omissions and implausibilities in the evidence.
[8] Because of the "low level" of the activities of the principal Applicant and his brother within the JP and of the fact that 13 years had passed since their activity in Bangladesh, the Board concluded that they would not be at risk of serious harm if they returned. The Board noted the lack of documentary evidence indicating that low level JP workers were being persecuted in the present.
[9] Finally, the Board found that the daughter, as an American citizen, did not have well-founded claim for refugee status. The Applicants do not contest this last finding.
Analysis
Standard of Review
[10] All three issues relate to findings of fact made by the Board, to which the applicable standard of review is one of patent unreasonableness. On questions of fact, the reviewing court can intervene only if it considers that the Board "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" (Federal Court Act, s. 18.1(4)(d)).
Issue #1:Did the Board err in law with regard to its findings on the nature of the Applicants' involvement in politics?
[11] The Applicants submit that the Board erred in concluding that the principal Applicant and his brother's low level of involvement in the JP party mitigated their risk, as this was an irrelevant consideration (Butucariu v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 115 (C.A.); Ponce-Yon v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 212 at paras. 9-10). The Board erred by concentrating on the length of time that the claimants had been out of their home country, rather than on the risk of future persecution. Particularly, it is submitted that the Board erred by ignoring the principal Applicant's clear statement that he would continue his political activities in Bangladesh (Ahmed v. Secretary of State for the Home Department, [1999] E.W.J. No. 5882 (C.A.)).
[12] The level of political importance of the Applicants was a relevant consideration for the Board. The rule to be drawn from Butucariu, supra, and Ponce-Yon,supra, is very narrow. In those cases, credibility was not an issue and there was uncontradicted evidence that the claimants had been victims of persecution and that all levels of political activists were persecuted. In that situation, the Court held that the Board cannot rely on the low level of political station of the claimants to deny their refugee status. In the application before me, however, the credibility of the Applicants' was impugned and there was a lack of evidence showing that JP members matching the Applicants' profile were being persecuted. It therefore was reasonable for the Board to examine whether the Applicants' positions would attract the attention of their alleged persecutors in the BNP.
[13] I am in agreement with the Respondent that the Board considered the future political activity of the Applicants when it assessed the objective foundation of their well-founded fear. The Board's reasoning is prospectively minded. Indeed, it would be nonsensical for the Board to only consider whether the Applicants faced persecution in the past and I find no indication of such a focus. The Board was entitled to assume that the Applicants would be active in relatively the same low-level positions that they were before, in the absence of any other indications. In addition, it was reasonable for the Board to take note of the length of time that the Applicants had been away from Bangladesh; it is common sense that this is a relevant factor in deciding whether the Applicants would draw notice from rival political parties upon their return.
[14] I note that the Court of Appeal of England and Wales in Ahmed, supra, cited by the Applicants, dealt not with political activity but with persecution based on religious observance. It is difficult to suggest that a person's political activity is as impossible to curb as religious observance. In Ahmed, the Court of Appeal allowed that it may be reasonable to expect asylum seekers to mitigate their political or religious activity in their country of origin (at para. 19). The Court also held that a claim by an applicant that he would continue his risk-attracting activities in his home country would tend to heighten scrutiny of his credibility and his subjective fear, but if true would not, on its own, be a reason to deny asylum (at paras. 20-21). I am of the opinion that, in the case at bar, it would be open to the Board to expect the Applicants to act cautiously if returned to Bangladesh, and that a claim otherwise, in light of the other problems in the Applicants' case, could have reasonably been a basis for doubting the Applicants' sincerity.
[15] In any event, the Board appears to have assumed that the Applicants would return to their old positions in the JP, and I am satisfied that they considered the future risk of the Applicants.
Issue #2: Did the tribunal err in law by ignoring evidence about the objective basis of the claim?
[16] In its decision, the Board stated that the documentary evidence "is silent on harm being suffered by JP workers of this low level in Bangladesh today". As pointed out by the Applicants, there is some documentary evidence (albeit not from well-known sources) that addresses instances of harm to low level workers. In light of this statement, the Applicants assert that the Board ignored documentary evidence of persecution of low-level supporters of the JP.
[17] The statement relied on by the Applicants must be read together with the whole decision. Later in the decision, the Board notes that "the claimants, have not been district leaders, student wing leaders or former MP's". This is a direct reference to the documentary evidence which the Applicants say was ignored. Further, having reviewed the documents in question, I am not persuaded that these documents indicate that low-level JP members are at risk. Most of the incidents reported involve "leaders" within the party, or the former prime minister himself, or attacks on party officers. It was open to the Board to find that these documents were "silent" on persecution of low-level JP members. Accordingly, I can find no indication that the Board ignored this evidence.
Issue #3:Did the tribunal err in law with respect to credibility findings?
[18] The Applicants point out a number of alleged errors in the credibility findings of the Board. The particular findings or failures questioned by the Applicants include the following:
- The inferences drawn from an omission in the principal Applicant's POE form of the fear of the particular person who allegedly was an agent of persecution;
- The negative inference drawn from the principal Applicant's and brother's PIFs of threats against them together with the Board's failure to mention the affidavit of another brother who remained in Bangladesh and who swore that he had been forced to move due to the ongoing persecution and that there were still threats being made; and
- The Board's finding that it was implausible that BNP goons would continue to search for the Applicants after 13 years of absence.
[19] With the possible exception of the brother's affidavit, each of these findings or inferences was, in my view, one that involves a weighing of evidence. I am not persuaded that the Board erred in the exercise of its discretion in any reviewable manner.
[20] It would have been preferable for the Board to address the brother's affidavit in its reasons. However, I do not agree that this affidavit was as central to the Board's decision as argued by the Applicants. If the Board erred by not having regard to this single piece of evidence, the error was not material in the sense contemplated in Cepeda-Gutierrez v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.).
Conclusion
[21] In summary, having read the decision and the record in this case and after considering the arguments of the Applicants, I am not persuaded that there is a reviewable error. The decision, particularly when read as a whole, does not show that the Board "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it". The application will be dismissed. Neither party proposed a question for certification; none will be certified.
ORDER
THIS COURT ORDERS that:
1. The application is dismissed; and
2. No question of general importance is certified.
"Judith A. Snider"
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