Docket: IMM-2785-11
Citation: 2012 FC 59
Montréal, Quebec, January 17, 2012
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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RUPTANU BARUA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
Court has stated in a number of cases that the Refugee Protection Division of
the Immigration and Refugee Board [Board] must not ignore relevant evidence nor
should it “dissect” the documentary evidence and use only specific portions in
isolation to confirm one’s point of view. Instead, the evidence must read as a
whole, in context, and weighed accordingly (King v Canada (Minister of
Citizenship and Immigration), 2005 FC 774; Bacchus v Canada (Minister of
Citizenship and Immigration), 2010 FC 616; Myle v Canada (Minister of
Citizenship and Immigration), 2006 FC 871, 296 FTR 307).
[2]
Given
the specific facts set forth in the country condition documents, and the
Applicant’s written narrative and testimony which was found to be credible, the
Board erred by not applying the principles in respect to that which constitutes
a change of circumstances.
II. Background
[3]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, ch 27 [IRPA], of a decision of
the Refugee Protection Division of the Immigration and Refugee Board [Board],
dated March 31, 2011, wherein it was determined that the Applicant is not a
Convention refugee nor a person in need of protection according to sections 96
and 97 of IRPA.
[4]
The
Applicant’s claim was based on the grounds of religion and membership in a
particular social group by virtue of his being a member of the Buddhist
minority and as a Secretary of his Buddhist Temple who was active in protecting
the rights of Buddhists in his community, in the province of Chittagong. The
Applicant does have a well-founded fear of persecution.
[5]
The
Court relies on the Applicant’s testimony and on the country condition
documentation as well as the Personal Information Form [PIF] narrative, all of
which were deemed credible; therefore, the Court agrees with the position of
the Applicant.
III. Issue
[6]
Did
the Board err by stating that there is a change in circumstances in Bangladesh
and, therefore, the applicant’s fear, which the Board found to be credible, no
longer exists?
IV. Analysis
[7]
It
is important to specify that the Board found the Applicant’s fear and testimony
regarding the persecution he suffered as a member of the Buddhist minority and
as an active member of the Buddhist community to be credible but believed that
there is now a change in circumstances since there is a new government in
place, and, therefore, believed that the Applicant had no longer a present fear
of persecution.
Change in
Circumstances
[8]
It
is established law that for a change of circumstances to be valid, “the change [must]
be meaningful and effective enough or substantial, durable and effective enough
to make the applicants’ fear unreasonable and thus, without foundation” (Tariq
v Canada (Minister of Citizenship and Immigration), 2001 FCT 540, 205 FTR
252 at para 31).
[9]
The
interpretation of the Court in Tariq is in harmony with the stipulations
of the United Nations High Commissioner for Refugees [UNHCR] Handbook on change
of circumstances:
135. Circumstances” refer to
fundamental changes in the country, which can be assumed to remove the basis of
the fear of persecution. A mere--possibly transitory--change in the facts
surrounding the individual refugee's fear, which does not entail such major
changes of circumstances, is not sufficient to make this clause applicable …
(Office of the UNHCR, Handbook on
Procedures and Criteria for Determining Refugee Status, Geneva, January 1988).
[10]
The
Board is required to enter into a detailed analysis of the country conditions,
especially where a change of government is recent (Kifoueti v Canada
(Minister of Citizenship and Immigration) (1999), 164 FTR 116).
[11]
The
Board’s analysis was far from being detailed.
[12]
Moreover,
it is not sufficient to merely state that a change of government is equivalent
to a change in circumstances. It must be established that the appropriate legal
principles have been applied (Ahmed v Canada (Minister of Employment and
Immigration) (1993), 146 NR 221 (FCA)).
[13]
In
the present case, the documentary evidence relied upon by the Board clearly
demonstrated that persecution against religious minorities continued even after
the return of the Awami League in power in 2008.
[14]
Referring
to the U.S. Commission on International Religious Freedom - Bangladesh Report,
the Board states that the Awami League was backed by the minorities since they
promised to assist minorities and to protect their rights (Decision at para 11).
The same documentary evidence also states that, while certain steps were effected,
promises were not kept; minorities still suffer persecution at the hands of the
majority and AL Government goons while the police watch:
… The 2008 elections brought to
power the Awami League, considered the most secular and favorably disposed
toward minority rights among Bangladesh's major political parties …
… The Prime Minister also
declared that the government would keep past commitments to the predominantly
non-Muslim indigenous peoples of the Chittagong Hill Tracts (CHT) region. In
light of these positive developments, USCIRF removed Bangladesh from its Watch
List in 2009.
Despite some improvements, the
government of Bangladesh nevertheless continues to show serious weaknesses in
protecting human rights, including religious freedom, and religious extremism
remains a persistent threat to rule of law and democratic institutions.
Accordingly, USCIRF continues to urge the government to strengthen protections
for all Bangladeshis to enjoy the right to freedom of religion or belief, and
to undertake further efforts to improve conditions for minority religious
communities. USCIRF hopes that the government of Bangladesh will investigate
and to the fullest extent of the law prosecute perpetrators of violent acts
against members of minority religious communities, women, and non-governmental
organizations. Reforms of the judiciary and the police also are necessary to
ensure that law enforcement and security services are equally protective of the
rights of all, including Hindus, Buddhists, Christians, Ahmadis, tribal
peoples, and other minorities. Additional efforts are needed to counter
societal and governmental discrimination in access to public services, the
legal system, and government, military, and police employment.
…
Even during periods of
democratic governance, Bangladesh's high levels of political violence and
instability have provided opportunities for religious and other extremist
groups to engage in criminal activities with relative impunity. Authors,
journalists, academics, and women's rights and civil society activists debating
sensitive social or political issues, or expressing opinions deemed by radical
Islamists to be offensive to Islam, have been subject to violent, sometimes
fatal, attacks. Some Muslim clerics, especially in rural areas, have also
sanctioned vigilante punishments against women for alleged moral
transgressions. Rape is reportedly a common form of anti-minority violence. The
government often fails to punish perpetrators, since the law enforcement and
the judicial systems, especially at the local level, are vulnerable to
corruption, intimidation, and political interference ...
…
Attacks on members of religious
or ethnic minorities or their properties, including thefts and vandalism at
Hindu temples, continue to be a problem, although it is difficult to
distinguish criminal intent from religious animosity or other possible motives.
Weak and corrupt law enforcement leaves members of religious minority
communities vulnerable to harassment and sometimes violence, particularly
sexual violence against women, by members of the Muslim majority. Although
the constitution provides protections for women and minorities, Hindus, Buddhists,
Christians, Ahmadis, tribal peoples, and other minorities must regularly grapple
with societal discrimination, as well as face prejudice that hinders their
ability to access public services, the legal system, and government, military,
and police employment. Religious minorities are also underrepresented in
elected political offices, including the national parliament.
Since the Pakistan era, Muslims,
particularly those who are well-connected politically, have used The Vested
Property Act (VPA) to seize Hindu-owned land. The VPA's implicit presumption
that Hindus do not belong in Bangladesh contributes to the perception that
Hindu-owned property can be seized with impunity. Bangladesh's National
Assembly began consideration in January 2010 of government-backed legislation
on this issue and minority-group representatives were permitted to express
their concerns in testimony before parliament. USCIRF welcomed this development
in a public statement urging the government to consult legal scholars and
representatives of the affected communities in order to devise remedies for
past abuses and prevent further property seizures based on the owners'
religious affiliation. However, as of this writing, no new legislation has
been passed. Despite attention to this issue at the national political level,
Hindu-owned property continued to be seized. In the Sutrapu district of Dhaka
in March/April 2009, police reportedly stood by as Muslims violently disposed
poor Hindus of land given to them by Hindu landowners leaving for India in
1947. In March 2010, local officials of the governing Awami League were
reported to have seized land belonging to a temple in Kaliazuri in the remote
northern district of Netrakona.
Ethnically, Bangladesh is highly
homogeneous, with more than 98 percent of the population being Bengali. Members
of ethnic minority communities, mostly tribal peoples in the north and in the
east, are often non-Muslim. The most serious and sustained conflict along
ethnic and religious lines has been in the CHT, an area with a high
concentration of non-Bengali, non-Muslim indigenous peoples. Resentment among
members of indigenous groups remains strong over settler encroachment on
traditional tribal lands, human rights abuses by the Bangladeshi military, and
the slow, inconsistent implementation of the 1997 CHT Peace Accords. Muslim
Bengalis, once a tiny minority in the CHT, now reportedly equal or outnumber
indigenous groups …
…
Based on the foregoing concerns,
USCIRF continues to recommend that the U.S. government encourage the government
of Bangladesh to take action on the following issues and ensure consistent
implementation: investigate and prosecute to the fullest extent of the law
perpetrators of violent acts against members of religious minority communities,
women, and non-governmental organizations promoting international human rights
standards; repeal the Vested Property Act and commit to restoring or
compensating for properties seized, including to the heirs of original owners;
rescind the 2004 order banning Ahmadi publications, and ensure adequate police
response to attacks against Ahmadis; enforce all provisions of the Chittagong
Hill Tracts Peace Accords and ensure that members of all tribal communities are
afforded the full rights of Bangladeshi citizenship; ensure that the National
Human Rights Commission is truly independent, adequately funded, inclusive of
women and minorities, and possessed of a broad mandate that includes freedom of
religion or belief; include in all public and madrassa school curricula,
textbooks, and teacher trainings information on tolerance and respect for freedom
of religion or belief; and ensure that members of minority communities have
equal access to government services and public employment, including in the
judiciary and high-level government positions. [Emphasis added].
(U.S. Commission on International
Religious Freedom [USCIRF] Annual Report 2010 -Additional Countries
Closely Monitored: Bangladesh, Application Record [AR] at pp 27-33):
[15]
Furthermore,
the U.S. 26 October 2009. Department of State. “Bangladesh” International
Religious Freedom Report 2009 also supports this analysis and states:
… Although the government
publicly supported freedom of religion, attacks on religious and ethnic
minorities continued to be a problem during the reporting period since
religious minorities are often at the bottom of the social hierarchy and,
therefore, have the least political recourse
… Government officials,
including police, nonetheless often were ineffective in upholding law and order
and sometimes were slow to assist religious minority victims of harassment and
violence. The Government and many civil society leaders stated that
violence against religious minorities normally had political or economic
dimensions and could not be attributed solely to religious belief or
affiliation.
There were reports of societal
abuses and discrimination based on religious affiliation, belief, or practice
during the period covered by this report, although figures suggested such
incidents declined significantly in comparison to the previous reporting
period. Hindu, Christian, and Buddhist minorities experienced discrimination
and sometimes violence from the Muslim majority. Harassment of Ahmadis
continued.
…
Many Hindus have been unable to
recover landholdings lost because of discrimination under the defunct Vested
Property Act. Although an Awami League Government repealed the Act in 2001, the
new Government did not take any concrete action to reverse the property
seizures that occurred under the act. The Vested Property Act was an East
Pakistan-era law that allowed the Government to expropriate "enemy"
(in practice Hindu) lands. Under the law, the Government seized approximately
2.6 million acres of land, affecting almost all Hindus in the country.
According to a study conducted by a Dhaka University professor, nearly 200,000
Hindu families lost approximately 40,667 acres of land since 2001, despite the
annulment of the Act the same year.
In April 2001 Parliament passed
the Vested Property Return Act, stipulating that land remaining under
government control that was seized under the Vested Property Act be returned to
its original owners, provided that the original owners or their heirs remained
resident citizens. The law required the Government to prepare a list of vested
property holdings by October 2001. Claimants were to file claims within 90 days
of the publication date. In 2002 Parliament passed an amendment to the Vested
Property Return Act that allowed the Government unlimited time to return the
vested properties and gave control of the properties, including the right to lease
them, to local government employees. By the end of the period covered by this
report, the Government had not prepared a list of such properties.
…
… Violence directed against
religious minority communities continued to result in the loss of lives and property,
but the true motives – whether religious animosity, criminal intent, personal
disputes, or property disputes – were often unclear. While the minority status
of the victims may have played a role, it should be noted that religious
minorities are often at the bottom of the social hierarchy and, therefore, have
the least political recourse. Police frequently were ineffective in
upholding law and order and sometimes were slow to assist religious minorities.
This attitude promoted a greater atmosphere of impunity for acts of violence
against minorities…
Reported incidents against
religious minorities during the reporting period included killings, rape,
torture, occupation of places of worship, destruction of homes, forced
evictions, and desecration of items of worship. Most of these reports could not
be independently verified. There also were reported incidents of members of
the Muslim community attacking each other on holidays due to a perception that
some events were un-Islamic. The government sometimes failed to investigate the
crimes and prosecute the perpetrators, who were often local gang and auxiliary
political organization leaders.
According to Shamokal, the
daily newspaper in Bangla, on March 30, 2009, 50 police officers and 100 others
evicted approximately 400 individuals, mostly Hindus, from Sutrapur in
old Dhaka and destroyed their ancestral homes with hammers. The mob, allegedly
led by the brother of a local Awami League politician, also destroyed the
oldest Shiva temple in Kalirghat. The individuals evicted claimed that the land
was registered in their name in 1945 and that they had been paying municipal
taxes and utility bills. After the passage of the Vested Property Act, the area
was registered as "vested property." The Hindu residents alleged that
several powerful local leaders had filed a case claiming the property. Police
sided against the Hindu occupants, claiming they had been illegally occupying
the land.their name in 1945 and that they had been paying municipal taxes and
utility bills. After the passage of the Vested Property Act, the area was
registered as "vested property." The Hindu residents alleged that
several powerful local leaders had filed a case claiming the property. Police
sided against the Hindu occupants, claiming they had been illegally occupying
the land. [Emphasis added].
…
Section IV. U.S. Government
Policy
The U.S. Government discusses
religious freedom with officials at all levels of the Government as well as
with political party leaders and representatives of religious and minority
communities. During the reporting period, the Embassy emphasized the importance
of free, fair, and credible national parliamentary elections in 2008 with full
participation of all ethnic and religious communities. Following the election,
the Embassy reiterated the need for an inclusive political process for all
citizens regardless of religion. The Embassy continued to express concern
about human rights, including the rights of religious and ethnic minorities.
Embassy staff traveled to various regions investigating human rights cases,
including some involving religious minorities, and met with civil society
members, NGOs, local religious leaders, and other citizens to discuss concerns
about pre- and post-election violence. They also encouraged law enforcement to
take proactive measures to protect the rights of religious minorities.
[Emphasis added].
(AR
at pp 34-39):
[16]
Additionally,
the Board refers to certain irrelevant passages in the documentary evidence. At
page 4, paragraph 12 of its decision, the Board states that the “authorities
have not shown that they are unwilling or unable to offer sufficiency
protection from members of opposing political parties or opposing factions …”.
[17]
The
Applicant is not involved in politics nor is he a member of an opposing
faction. He is part of a religious minority that the AL government is unable
even though it may be willing to protect against its own goons and the militant
Muslim faction where the security forces simply watch as persecution continues.
No change in circumstances can be said to be in effect in regard to religious
minorities could be deemed as effective
[18]
It
is therefore objectively reasonable for the Applicant, as an active member of a
religious minority, to fear returning to his country despite that change in
government since the change of circumstances is clearly not substantial,
durable and effective.
V. Conclusion
[19]
The
country evidence clearly demonstrates that the Applicant has met the test set
out in Adjei v Canada (Minister of Employment and Immigration), [1989] 2
FC 680; Chichmanov v Canada (Minister of Employment and Immigration),
FCA A-243-91 (Sep 16, 1992), [1992] FCJ 832 (QL/Lexis); Tong v Canada
(Minister of Employment and Immigration), FCA A-168-92 (Dec 9, 1993), [1993]
FCJ No 1376 (QL/Lexis).
[20]
The
Applicant has a genuine fear of returning to his country and his fear is
reasonable (Tong, above).
[21]
Due
to all of the above, the entire matter is to be returned to the Board to be
heard anew by a differently constituted panel.
JUDGMENT
THIS COURT
ORDERS that the Applicant’s application for
judicial review be returned to the Board to be heard anew by a differently
constituted panel. No
question of general importance for
certification.
“Michel M.J. Shore”
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