Date: 20100914
Docket: IMM-126-10
Citation: 2010 FC 908
Ottawa, Ontario, September 14, 2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
RASHED AHMED
SADAF KHURSHEED
UZAIR AHMED AND
USUMA RASHED AHMED
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
Mr. Rashed
Ahmed (the Principal Applicant), his wife and two minor children (collectively,
the Applicants) are citizens of Bangladesh
who are followers of the Ahmadi-Muslim religion. The family came to Canada as visitors in May 2007 and
claimed protection in June 2007 on the basis of their fear of persecution on
the grounds of their religion.
[2]
In a
decision dated December 16, 2009, a member of the Immigration and Refugee
Protection Board, Refugee Protection Division (the Board) determined that the
Applicants were neither Convention refugees nor persons in need of protection.
The Applicants seek judicial review of the Board’s decision.
[3]
The key
findings of the Board were as follows:
1.
Except in
respect of the claimant’s assessment of current country conditions in Bangladesh, the Principal Applicant was
credible.
2.
Prior to
2006, the Applicants would have been found to be Convention refugees since,
prior to that date, Ahmadis were persecuted and could receive little protection
from the state.
3.
Country
conditions have changed in Bangladesh, in a meaningful and
effective way, such that the overall situation for Ahmadis has been greatly
improved.
4.
Since the
Applicants did not suffer incidents in Bangladesh that were so severe as to
rise to the level of “appalling persecution” (Canada (Minister of Employment
and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.)), they did not come
within the “compelling reasons” exception of s. 108(4) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
5.
The
Applicants have not presented clear and convincing evidence to rebut the
presumption of state protection.
II. Issues
[4]
The
Applicants do not challenge the Board’s finding under s. 108(4). However, the
Applicants challenge the remainder of the Board’s decision. As argued by the
Applicants, the issues to be determined in this judicial review are the
following:
1.
Did the
Board err in its conclusion that there had been a change in country conditions
in Bangladesh such that the Applicants
would no longer suffer persecution if they were to return by:
a.
relying on
out-dated information; and
b.
arbitrarily,
and without explanation, rejecting documentary evidence filed subsequent to the
hearing?
2.
Did the
Board err in its finding that harassment and discrimination suffered by the
Applicants did not amount to persecution?
[5]
For the
reasons that follow, I am not persuaded that the Board’s conclusions were
unreasonable, as alleged, and dismiss this application for judicial review.
III. Analysis
A. What is the Standard of Review?
[6]
On
judicial review, it is important that the Court examine the decision of the
Board as a whole. In this case, the Board determined that: (a) beginning in
2006, there had been a change in circumstances in Bangladesh; and (b) this change in circumstances
had resulted in adequate state protection for Ahmadi-Muslims.
[7]
The
finding of the Board on changed circumstances is one of fact (see, for example,
Yusuf v. Canada (Minister of Employment &
Immigration),
[1995] F.C.J. No. 35 (F.C.A.) (QL), at para. 2). The finding of state
protection is a question of mixed fact and law. For both determinations,
deference is to be given to the Board, and the decision should be analysized on
a standard of reasonableness.. On this standard, the Court should not intervene where the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para. 47).
B. Did
the Board err in its finding on changed conditions?
[8]
The Applicants point
to the fact that the documentary evidence relied on by the Board was dated in
2009, and relied on documents that were dated back to even earlier periods
(post-2006). According to the Applicants, the change in government and
corresponding change in circumstances in Bangladesh only occurred after the December 2008
democratic elections.
[9]
A fundamental problem
with the Applicants’ argument is that it is based on a flawed understanding of
the Board’s decision. The Board assessed the change in country conditions over
the period from 2006 to 2009, and not from the elections held at the end of
2008, as asserted by the Applicants. The Board, having reviewed the evidence
before it, referred to government-supported initiatives and actions that began
in 2006 and continued on into 2009. The Applicants appear to be arguing that
the Board cannot consider any actions from the 2006 to 2008 period where there
was a “military-backed, non-party caretaker government”. I do not see why not.
Under the auspices of this governmental regime, a number of initiatives took
place that contributed to the change of circumstances in Bangladesh. Following its description of changes that took place
during that regime, the Board examined whether these changes were continued by
the government elected in 2008. The Board concluded that the changes continued,
thus contributing to its conclusion that the changes were not temporary or
transitory. This was a reasonable conclusion on the facts before the Board.
[10]
The only questions
remaining are: (a) the affect of post-hearing evidence filed by the Applicants;
and (b) whether the Board made a forward-looking analysis.
(a) Post hearing Evidence
[11]
The September 30,
2009 National Documentation Package (NDP) for Bangladesh
had not been disclosed to the claimants prior to the hearing in October, 2009.
At the close of the hearing, the Board provided the Applicants with the
opportunity to provide post-hearing submissions and evidence on the questions
of change of circumstances and state protection. The Applicants then‑counsel
filed a one-page submission and numerous articles related to “the situation of
Ahmadi Muslims, as well as growing extremism in general”.
[12]
Before me, the
Applicants acknowledge that this evidence was not ignored, but that the Board
acted unreasonably in rejecting the post-hearing evidence filed by the
Applicants.
[13]
It was open to the
Board to prefer some evidence over other evidence and, provided that the Board
explains why it has preferred some evidence over other evidence, there is no
error (Cepeda‑Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998),
157 F.T.R. 35, [1998] F.C.J. No. 1425 (QL)).
[14]
The fact that some
(but not all) of the post-hearing evidence, provided by the Applicants,
postdates the documentary evidence before the Board does not automatically mean
that the Applicants’ post-hearing evidence should be preferred.
[15]
Having carefully reviewed
all of the evidence, including the post-hearing evidence, I am satisfied that
the Board did not err in its assessment. In my view, the post-hearing evidence
provided by the Applicants was unreliable or irrelevant to the issues before
the Board. This post-hearing evidence is deficient in a number of aspects:
·
The reports of
isolated incidents of violence do little to rebut the presumption of state
protection. The question that ought to have been addressed is whether the state
is unable or unwilling to respond to the incidents of violence.
·
In general, the
evidence lacks reliability. The tone of the articles and language used by their
authors are extreme and suggest a lack of objectivity. There is no evidence
that the journals or authors cited generally provide independent, objective
news reporting.
·
Some of the evidence
is dated. For example, the memorandum from Meer Mobashersher Ali refers to an
incident in April of 1987. That memorandum contains only one reference to
September 2009, without any observations of whether the alleged incidents were
reported to the police. Another article (also very general in its focus) is
dated December 28, 2008 and appears to be a personal blog.
·
Some of the evidence
is very general. For example, an article by Salah Uddin Shoaib Choudhury is
entitled “South Asia, Militant Islam and Al Qaeda”. I fail to
see the relevance of this article.
·
Two of the articles
describe the same attack on a mosque. While an October 15, 2009 article by “A
Staff Reporter” states that the “manner of the police was completely
bewildering”, another article, dated September 2009, refers to the fact that
police were posted in the area after the attack and that “no other untoward
incident has taken place”. The Board noted this inconsistency.
·
The articles by Dr.
Belkin are general in nature, and lack reliability. The Applicants made no
attempt to provide the credentials of Dr. Richard Benkin, whose articles dated
January 4, 2009 and October 4, 2009 were included in the post-hearing
documents. It is clear, from reading these two articles, that Dr. Belkin holds
very strong and negative views of the current government.
[16]
In sum, the Board’s
preference for the documentary evidence over the post-hearing evidence is
well-supported by the record.
(b) Forward-Looking Analysis
[17]
The Applicants also
argue that, although the Board stated that it must make a “forward‑looking
determination”, it did not do so. Rather, the Applicants submit, the Board’s
analysis stops as of August 2009 – the date of the UK Border Agency Country of
Origin Information Report. The Applicants refer to the cautionary words of
Justice Richard Mosley in Chowdhury v. Canada
(Minister of Citizenship and Immigration), 2008 FC 290, [2008] F.C.J. No. 368 (QL) at para.
13-14:
A
change in the political situation in a claimant's country of origin is only
relevant if it may help in determining whether or not there is, at the date of
the hearing, a reasonable and objectively foreseeable possibility that the
claimant will be persecuted in the event of return.
When
coming to that decision, the RPD member must, however, have a view as to the
stability and probability of continuation of the change in country conditions
which resulted in the finding of a lack of risk. To do otherwise would put into
harm's way those who flee the persecution of one side of an ongoing dispute.
While the period in which their group is in the ascendance might be safe, the
fragility of that safety is one issue which the RPD must consider in coming to
their decisions. It does not appear from the decision that the member in the
instant case directed her mind to that question.
[18]
It is always
difficult to look into the future. However, I am not persuaded that the Board
failed to make that attempt. Having reviewed the durability of the changed
circumstances between 2006 and 2009, the Board concluded that the change was
“not a temporary or transitory one”. The Board then turned its mind to the
future and observed that there was no evidence that the current “government
under which Ahmadis have received protection . . . is in imminent danger of
being overthrown or removed”. A review of the Certified Tribunal Record
demonstrates that no evidence to the contrary was presented. In the case before
me, the Board did not make the error described by Justice Mosley. In other
words, the Board directed its mind to and made an assessment of the objectively
foreseeable possibility that the Applicants would be persecuted upon their
return to Bangladesh.
[19]
I am further
satisfied that the Board’s conclusion that state protection was available to
the Applicants if they returned to Bangladesh was not unreasonable.
C. Did the Board err by
concluding that “harassment and discrimination do not constitute persecution”?
[20]
In the middle of
paragraph 17 of its decision, the Board states that “harassment and
discrimination do not constitute persecution”. The Applicants submit that this
statement is wrong and that such treatment, particularly in the context of
religious freedoms, can be persecution.
[21]
In my view, the Applicants
have taken this statement completely out of context. The sentence is contained
in a paragraph in a section of the reasons dealing with changes in the
situation facing Ahmadi-Muslims since the time when the Applicants lived and,
later, visited Bangladesh. It would have been better if the Board
had qualified this statement to read something such as “harassment and
discrimination do not always constitute persecution”. However, read in
the context of that part of the decision, I am not persuaded that the Board
erred.
IV. Conclusion
[22]
For these reasons, I
am satisfied that the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir, above, at para. 47) and I dismiss this application for judicial
review.
[23]
I wish to commend
both counsel in this application. In particular, the Applicants’ counsel who
appeared before me for oral argument – but not before the Board or at the leave
stage. He vigorously, professionally and capably represented his clients.
[24]
Neither party
proposed a question for certification.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
the application for
judicial review is dismissed; and
2.
no question of
general importance is certified.
“Judith
A. Snider”
Email this Content