Date: 20041008
Docket: IMM 6869 03
Citation: 2004 FC 1391
Ottawa, Ontario, this 8th day of October, 2004
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
MOHAMMED SHAHEDUL ISLAM,
TASNIM A JINNAT, SAIYARA ISLAM
Applicnats
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The principal Applicant Mohammed Shahedul Islam ("the Applicant") and Tasnim A. Jinnat, his wife and Siyara Islam, his daughter are all citizens of Bangladesh. The Applicant's father was a veteran political leader, a member of the Bangladesh Parliament for 10 years and was elected President of the Awami League (AL) in the Thakurgaon district in Northern Bangladesh three times. The Applicant, who is now 30 years old, was actively involved in politics and claims to have developed a fairly high profile.
[2] In 1996, the Applicant claims he was attacked and beaten by his political opponents. His father died the same year. The Applicant sought nomination by the AL twice but failed to secure it because the Party felt he needed more experience. The Applicant took a job at the Bangladesh Embassy in Tokyo, Japan.
[3] The Applicant's party lost the election in October of 2001 and the newly elected Bangladesh Nationalist Party (BNP) allegedly began to take revenge on members, officials and supporters of the Awami League. The Applicant's mother claims she received threatening phone calls where she was told her son would be killed if he returned to Bangladesh and the Applicant himself claims he received similar calls in Tokyo where he was told he would lose his job and would be killed upon his return to Bangladesh. The Applicant's employment at the Bangladesh Embassy in Tokyo was terminated by the BNP in March 2002.
[4] Allegedly, the BNP had prepared a list of political appointees of the previous government. The Applicant claims to have learned that the airports were being watched and upon his return to Bangladesh, those on the list would be arrested by the authorities. The Applicants were afraid to return to Bangladesh and came to Canada and claimed refugee status.
THE DECISION OF THE BOARD
[5] The Board rejected the claim by finding:
1. The objective evidence did not support the Applicant's claim in that:
- the Applicant was not "of the profile of those most at risk at the hands of the BNP: he had never been elected, he did not work in the election of October 2001 and he held no position in the AL". (The Board listed individuals who have been subjected to harm (see Exhibit R-2) and did not find the Applicant's activities similar to those of people who had been harmed in the past).
- the actual AL candidate still appeared to be in Bangladesh today and would in all likelihood be a greater threat to the BNP than the Applicant.
- the Applicant's family who supported the candidate were able to remain in Bangladesh as well. (The Applicant was in Tokyo at the time of the elections in October 2001.)
2. The Applicants credibility was questionable as the Applicant did not refer in his PIF to the airport being under surveillance and the list of political appointees from the previous government. As the PIF is designed to relay "significant events and reasons" that caused the claimant to seek refugee protection, the omission of any mention of this in the PIF leads to an absence of credibility.
STANDARD OF REVIEW
[6] Both sides agree that the applicable standard of review is patent unreasonableness. See (Conkova v. Canada (M.C.I.), [2000]_F.C.J. No. 300; Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)).
ISSUES
1. Did the Board err in finding there was no objective basis for the Applicant's fear of persecution?
2. Did the Board err in assessing the Applicant's credibility?
3. Did the Board err in not making separate findings as to:
a) subjective fear of persecution; and
b) s. 97 of the Immigration and Refugee Protection Act (IRPA)?
ANALYSIS
1. Did the Board err in finding there was no objective basis for the Applicant's fear of persecution?
[7] The Applicant submits that the Board erred by:
a) not explaining why it found the letter from the former PM of Bangladesh insufficient to establish he is at risk;
b) stating that his family was involved in the 2001 election;
c) finding that the unsuccessful candidate still lives in Bangladesh;
d) not giving sufficient weight to the letter from his mother which stated that he is still in danger;
e) considering the Applicant's "activities" as opposed to his identity and his political opinion; and
f) limiting the categories of individuals who may face persecution at the hands of the BNP.
[8] It is well established law that the reviewing court should not microscopically examine the Board's decision but look at it as a whole. (See Sivasamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741) Each of the points raised by the Applicant is partially addressed by the Board's decision. The evidence is not conclusive on each point. For instance, while the brothers were not involved in the election, the mother was. Does that constitute "family"? Another example, the unsuccessful candidate "does not live in the area". Does that mean he is still in Bangladesh or has he left the country? The Board found
(t)he actual AL candidate, as far as I understand, is still in Bangladesh today
[9] Perhaps the Board's decision does not address each point raised by the Applicant as explicitly as one would want. However, read as a whole, it is clear that on the basis of the evidence before it, the Board came to the conclusion that there is no objective fear on the part of the Applicant.
[10] Unless the contrary can be shown, the Board is presumed to have weighed and considered all the evidence (Khan v. MCI (1999) 177 F.T.R. 287 ). A lack of reference to a particular fact or allegation in the Board's reasons does not mean it did not consider them. As the Court stated in Singarayer v. MCI (1998), F.C.J. No. 870:
(t)he fact that some of the documentary evidence was not mentioned in its reasons is not fatal to its decision.
[11] There were no substantial grounds to believe the Applicant's removal to Bangladesh would subject him personally to a danger of torture or a risk to life or a risk of cruel and unusual treatment. The evidence before the Board simply did not support an objective fear, nor did it support the Applicant being at risk personally. On the basis of the evidence before it, the Board could reasonably conclude that the Applicant did not meet the profile of those most at risk in the hands of the BNP.
2. Did the Board err in assessing the Applicant's credibility?
[12] The Applicant submits that the Board erred in rejecting the Applicant's explanation of why he omitted from his PIF any mention of the list of patronage appointments and that the listed individuals would suffer on their return to Bangladesh. He explained that he wanted to raise this sensitive issue in camera only. He submits that it was unreasonable for the Board to refer to this evidence as an "enhancement".
[13] The Board is entitled to draw an adverse inference from an omission from the PIF. The Board has the benefit of seeing the Applicant, his mannerisms and hearing his testimony. Its conclusion is one that is reasonable under the circumstances and it should not be disturbed. The Applicant bears the onus of demonstrating that no reasonable person could have arrived at the same conclusion to which the Board came. As Richard C.J. stated in Singarayer (supra)
In my view, the conclusions of the Refugee Division were reasonable open to it based on the totality of the evidence adduced. (...) It did consider and weigh the total evidence. Where the tribunal has evidence before it which support its conclusion, this Court will not readily interfere with the weight assigned to that evidence.
3. Did the Board err in not making separate findings as to:
a) subjective fear of persecution; and
b) s. 97 of IRPA?
[14] The test to be applied is a two part conjunctive test; if the Applicant fails one part, he fails both. The Board found that the Applicant had not established that a subjective fear existed. This makes the analysis of section 97 unnecessary.
[15] In its decision, the Board found that on a balance of probabilities, there was less than a "mere possibility" the claimant would experience harm if returned to Bangladesh. In Brovina v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 771, the Court stated:
... while a separate section 97 analysis is desirable, the failure to conduct such an analysis will not be fatal in circumstances where there is no evidence that would require it.
Consequently, there was no need to make separate section 97 findings.
[16] In light of the above findings, the application cannot succeed.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6869-03
STYLE OF CAUSE: Mohammed Shahedul Islam, Tasnim A Jinnat and Saiyara Islam
v. Minister of Citizenship and Immigration
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 6, 2004
REASONS FOR : The Honourable Mr. Justice von Finckenstein
DATED: October 8, 2004
APPEARANCES:
Mr. Rezaur Rahman FOR APPLICANTS
Ms. Elizabeth Kikuchi FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Rezaur Rahman
Barrister and Solicitor
Ottawa, Ontario FOR APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
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