Date: 20000512
Docket: IMM-2810-99
BETWEEN:
BILLAL HOSSAIN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
DENAULT, J.
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated May 5, 1999, which held that the applicant was not a Convention refugee.
Facts
[2] The applicant is a thirty-three (33) year old citizen of Bangladesh. In December, 1989, he joined the Jatiya Party ("JP") in Damodya. In 1990, he and two friends were attacked by supporters of the Bangladesh Nationalist Party ("BNP").
[3] In January 1991, the applicant was involved in the parliamentary elections. On June 13, 1991, he was injured during a demonstration protesting the arrest of General Ershad. In January 1992, the applicant was elected to the Executive Branch of the JP. He was later attacked by supporters of the Awami League ("AL") and of the BNP.
[4] In May 1994, the applicant became the Publicity Secretary of his political unit. In August 1994, he and other executive members of the JP were arrested and severely beaten. Further, the applicant was detained for a month. In January 1995, the applicant's wife and son were the victims of an aborted abduction by the AL. Two days later, armed BNP supporters fired on the applicant's house. In February 1995, police searched for the applicant in connection with an anti-government campaign carried out by the JP Publicity Group.
[5] The applicant fled to India on February 13, 1995. He left India for Canada on the same day, arriving in Vancouver via Czechoslovakia on February 16,1995, whereupon he claimed refugee status.
Board's decision
[6] The Board wrote that it had no reason to doubt that the applicant was a member of the JP, but it concluded that the applicant had not provided credible nor trustworthy evidence as to the central elements of his claim. The Board reached that conclusion mainly because it did not believe that the applicant provided credible evidence regarding the issue of whether or not he had ever been to Germany. It is important to see how the Board considered that issue:
| The claimant fled to India on February 13, 1995. He left India for Canada on the same day, arriving in Vancouver, British Columbia, on February 16, 1995, whereupon be claimed refugee status. |
| Ministerial Representation |
| As is noted in the file, the Refugee Claim officer (RCO) contacted the Canadian Immigration Law Enforcement Branch on May 6, 1997, given that documents forwarded to her from Vancouver suggested that the claimant arrived in Vancouver with four other refugees and that there was reason to believe that they had all been in Germany for two years prior to their arrival in Canada. The panel then directed the Case Officer to contact the Minister's Representative with a view to his/her participation in this file. |
| On July 29, 1997, a response was received suggesting that the Minister's Representative was not able to be at the next scheduled hearing of March 13, 1997, and furthermore that there was no additional information regarding the claimant. The panel therefore decided to continue the hearing, as scheduled, without the Minister's Representative. As recently as March 1999 the Minister's Representative had no news from the German authorities. |
| A good part of the RCO's questions to the claimant dealt with his whereabouts between 1993 and 1995 and whether or not he had even been to Germany. The claimant denied ever having been in Germany. When examined as to whether he knew any of the other four persons from Bangladesh who had arrived in Vancouver on the same time, the claimant testified that he had not spoken to any of them on the airplane. He stated that he saw one of them in a line at the Vancouver airport. First, he denied knowing this man. Then he stated that he did know him. Then he stated that he met him for the first time at the Jean Talon Market in Montreal. At that point in time they exchanged names and addresses. The circumstances in which he knew this person were clearly relevant to whether the claimant had claimed refugee status there. |
| The panel does not believe that the claimant provided credible nor trustworthy evidence regarding this issue. |
[7] In brief, this note dated May 6, 1997, by the Refugee Claim Officer1, was based on a protected document dated March 14, 1995,2 involving another Convention refugee claimant Mohammed Abu Sayed, which alleged that:
| - prior coming to Canada on 16/02/95, subject [Sayed] had been staying in Germany for two years and had been making "good money"; |
| - the other four Bangladeshi refugee claimants who arrived at VIA with him had also been staying in Germany. |
| The above indicates that subject and the other four claimants may have active refugee claims in Germany. Therefore, an attempt should be made to verify this suspicion with Bonn and fingerprint record searches in Germany should be requested with the RCMP. |
Needless to say, the record shows that this allegation was never proven, and the Board finally recognized that "as recently as March 1999 the Minister's representative had no news from the German authorities".
[8] However, throughout the four hearings which took place in this case between June 3, 1997 and March 3, 1999, the Board was suspicious about the claimant's whereabouts between 1993 and 1995 as to whether or not he had ever been in Germany. The record shows that the claimant produced photographs taken at his sister-in-law's marriage which he attended in December 1994 - he even witnessed her marriage contract on December 12, 19943 - and documents from the Jatiya Party attesting of his election on May 5, 1994 as a branch executive member and Publicity Secretary4, and from his lawyer attesting that the claimant was arrested on August 4, 19945. But still the Board, instead of stating " . . . in clear and unmistakable terms . . ."6 that the claimant was not credible on that issue, found a way to circumvent their suspicion by expanding on how he had "met" in Montreal a person he had first "seen" when he arrived in Vancouver.
[9] In so far as there was no contradiction in the claimant's testimony and as he had satisfactorily shown that he had been living in Bangladesh between 1993 and 1995, the Board was wrong in disbelieving the claimant on that issue.
[10] Furthermore, having reviewed the documentary evidence in its entirety and read the transcript of the four hearings held in this instance, I am satisfied that at least one other finding warrants the intervention of the Court. As previously mentioned, the claimant filed as Exhibit C-57 a letter from his lawyer in Damodya. At the hearing held on November 25, 1998, the claimant denied that his lawyer had ever visited him during his one-month detention period starting on August 4, 1994.8 The Board gave no probative value to Exhibit C-5 in the following words:
| . . . Moreover, if as per Exhibit C-5 and as per the claimant's sworn testimony there was a lawyer involved with this detention, the panel finds it unreasonable that he did not visit the claimant while he was in detention and unreasonable that he did nothing regarding the detention. Therefore, the panel gives no probative value to Exhibit C-5. |
[11] This finding is clearly a misapprehension of the evidence in view of the Bangladesh Country Report on Human Rights Practises for 1996 which states that "Detainees are allowed to consult with lawyers while in detention, although usually not until a charge is filed".9 The claimant testified that no charge was registered against him,10 confirmed by his lawyer in C-5.
[12] For these reasons, this application for judicial review shall be granted, the decision set aside and the matter returned to a different panel for consideration.
_________________________
Judge
Ottawa, Ontario
May 12, 2000
__________________
1 Tribunal record, p. 39.
2 Tribunal record, p. 41.
3 Tribunal record, p. 98-99.
4 Tribunal record, p. 58.
5 Tribunal record, p. 60.
6 Hilo v. Canada (M.E.I.), (F.C.A.) [1991] 130 N.R. 236.
7 See note 5.
8 Tribunal record, p. 381 to 386.
9 Tribunal record, p. 156.
10 Tribunal record, p. 387.
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