Date:
20120518
Docket: IMM-6270-11
Citation: 2012 FC 607
Ottawa, Ontario, May 18, 2012
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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TINKU 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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the Act] for judicial review of the
decision rendered by the Refugee Protection Division of the Immigration and
Refugee Board (the Board) dated August 18, 2011, which refused the applicant’s
claim to be deemed a Convention refugee or a person in need of protection under
sections 96 and 97 of the Act.
[2]
The applicant seeks an order setting aside the decision and
remitting the matter for redetermination by a differently constituted panel of
the Board.
Factual Background
[3]
Mr.
Tinku Barua (the applicant) is a citizen of Bangladesh who seeks
protection in Canada as he fears
persecution at the hands of Islamic terrorists supported by the Bangladesh
Nationalist Party (BNP).
[4]
The
applicant lived in Jobra, a relatively small city north of the large metropolis
of Chittagong.
[5]
The
applicant alleges that, as a Buddhist, he has been targeted by Islamic
terrorists who seek to eradicate the existence of minorities in Bangladesh.
[6]
In
response to the discrimination and persecution of Bangladesh’s religious
minorities, the applicant decided to join the Jobra Sugata Vihar (Temple) committee
in June of 2004. The applicant began speaking out against the Islamic
terrorists and condemning their actions.
[7]
The
applicant alleges that he witnessed Islamic terrorist attacks on his temple in
March and July of 2006.
[8]
In
July of 2006, the applicant was threatened by a gang of “Jamat terrorists” as
he was returning home from his workplace.
[9]
In
November of 2006, the applicant, along with a group of Buddhist youths, was
attacked by “Jamat terrorists” and their “BNP allies” during a religious event.
When the applicant responded to his attackers, they pushed him to the floor,
kicked and threatened him.
[10]
On
January 11, 2007, the military-backed caretaker government took power from the
BNP. Though the applicant was hopeful that the new government would bring
political change, on May 11, 2007, the applicant’s temple was attacked again
during a religious ceremony. The applicant confronted the attackers and was
subsequently beaten along with two of his friends.
[11]
The
applicant explains that he was then identified as a target by the “Jamat
terrorists”. On June 17, 2007, the applicant was attacked again by a gang of
“Jamat terrorists” on his way to the temple. This pattern of attacks continued.
[12]
In
October of 2007, the applicant witnessed an attack at the wedding ceremony of
one of his friends. The applicant alleges that he was particularly identified
and targeted. The applicant was forced to escape to a friend’s place.
[13]
After
being informed that the Islamic terrorists had raided his home in search of
him, the applicant fled to Chittagong. The applicant
subsequently moved to Dhaka, where he resided with his cousin for one
month. The applicant then left Bangladesh in November of 2007 and escaped to Canada, where he
filed a refugee claim in December of 2007.
[14]
The
Board heard the applicant’s refugee claim on June 13, 2011.
Decision under Review
[15]
In
its decision, the Board concluded that the applicant was not a Convention
refugee or a person in need of protection under the Act. The Board noted that
it had concerns about the credibility of the applicant and commented about the
availability of state protection and decided on the possible Internal Flight Alternative
(IFA) in Bangladesh.
Issue
[16]
The
Court finds that this case raised the following issue: were the Board’s conclusions
reasonable?
Statutory Provisions
[17]
The
following provisions of the Immigration and Refugee Protection Act are
applicable in these proceedings:
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Refugee Protection, Convention Refugees and Persons
in Need of Protection
Convention refugee
96. A Convention refugee is a person who, by reason
of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries
of nationality and is unable or, by reason of that fear, unwilling to avail
themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
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Notions
d’asile, de réfugié et de personne à protéger
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention –
le réfugié – la personne qui, craignant avec raison d’être persécutée du fait
de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b) soit, si elle n’a
pas de nationalité et se trouve hors du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person in need of protection
97. (1) A person in need of protection is a person in
Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture; or
(b) to a risk to their life or to a risk
of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
Person in
need of protection
(2) A person in Canada who is a
member of a class of persons prescribed by the regulations as being in need
of protection is also a person in need of protection.
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Personne à protéger
97. (1) A qualité de personne à protéger la personne
qui se trouve au Canada et serait personnellement, par son renvoi vers tout
pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans
lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes – sauf celles infligées au mépris des normes internationales – et inhérents
à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à
protéger
(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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Standard of Review
[18]
The
Court reminds that it is trite law that the Board’s findings with respect to
credibility and on the existence of an Internal Flight Alternative (IFA) are to
be reviewed according to the standard of reasonableness: Esquivel v Canada
(Minister of Citizenship and Immigration), 2009 FC 468 at para 13, [2009] FCJ No 563; Mejia
v Canada (Minister of Citizenship and Immigration) 2009 FC 354, [2009] FCJ
No 438.
Consequently, according to the applicable case law, the Court will only
intervene if it finds that the Board’s decision was unreasonable in that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9
at para 47, [2008]
1 SCR 190).
Analysis
[19]
The
Court recalls that in its decision the Board provided its concerns with the
applicant’s credibility but the Board chose not to offer clear conclusions with
regard to the issue of availability of state protection in Bangladesh. Rather, the Board
found that the question of the IFA was the determinative issue.
[20]
After
a review of the documentary materials and the applicant’s testimony, the Court
is in agreement with the arguments submitted by the respondent and finds that
the Board’s conclusions were reasonable.
[21]
With
respect to the credibility issue, the Board outlined its concerns with regards
to the credibility of the applicant:
·
While the
Board observed that the applicant was clear and consistent on the details of
his Personal Information Form (PIF), it concluded that he was vague and lacked
knowledge about other facts. Specifically, the Board noted that he lacked
knowledge about dates not included in his PIF, as well as the specifics as to
where his attackers (the “Jamat terrorists”) lived and worked, as they had been
targeting him repeatedly since 2006.
·
The Board
commented that there was a plausibility issue related to the attacks on the
temple. The Board found it surprising that though the temple had been attacked
repeatedly, in May of 2007 there was still no security provided. The Board
found it surprising that the claimant had simply happened to be at the temple
at the time when the “Jamat terrorists” were attacking. As well, the Board
found it implausible that after the temple had been attacked and damaged again,
there was still no effort to seek state aid.
·
The Board
did accept the applicant’s explanation for this lack of security. The applicant
explained that the police are of no help and that they do not provide security
to minority people. The Board concluded that this explanation was not
consistent with the documentation, which indicates that the government does
routinely post law enforcement personnel at religious festivals and events that
may be targets for extremists. Also, the Board noted that the National
Documentation Package does not indicate that minorities avoid making police
complaints.
[22]
The
Court finds that the Board’s negative decision regarding the applicant’s credibility was
reasonable. The Board’s findings were properly made and were supported by
numerous examples from the evidence. For instance and contrary to the
applicant’s allegations, the documentary evidence clearly demonstrates that
minorities in Bangladesh complain to the police
(P-15, P-31, P-35, P-39 and P-40). The Court reminds that the Board has a
broad discretion when assessing documentary evidence and it is entitled to give
some documents more weight than others. The Board was also
entitled to rely on the documentary evidence in preference to the testimony
provided by the applicant. It seems that the applicant is asking the Court to
reweigh the evidence. However, in the circumstances, the Court cannot
substitute its own opinion for that of the Board.
[23]
Concerning
the issue of the existence of an IFA which is central to the case at bar, the
Court is also of the view that the Board’s decision on the IFA was reasonable.
Once the issue of an IFA is raised, the burden rests upon the applicant to
establish that an IFA does not exist or that it is unreasonable for the
applicant to avail himself of the potential IFA. The threshold is a very high
one.
[24]
More
particularly, the Board correctly applied the principles established in the
cases of Thirunavukkarasu v Canada (Minister of Employment and Immigration) (CA), [1994] 1 FC 589,
[1993] FCJ No 1172 and Rasaratnam v Canada (Minister of Employment
and Immigration)
(CA), [1992] 1 FC 706, [1991] FCJ No 1256. The Board was clearly satisfied that
there was no serious possibility that the applicant would be persecuted in
Dhaka (the proposed IFA) and that it would not be unreasonable for him to seek
refuge there (Tribunal Record, pp. 254-257). In the present case, and based on
the evidence, the applicant was unable to demonstrate that the proposed IFA was
unreasonable and that he would face persecution if he were to return there.
[25]
Although
the applicant submits that the Board ignored certain pieces of evidence in its
determination of the reasonableness of the IFA, the Court recalls the principle
that the Board is assumed to have weighed and considered all the evidence that
was before it, unless the contrary was shown (Florea v Canada (Minister of
Employment and Immigration) (FCA), [1993] FCJ No 598, [1993] ACF no 598). After
reviewing the evidence, the Court cannot accept the applicant’s arguments.
Moreover, though the applicant asserts that the Board was required to consider
the effective capacity of the state to provide protection and
its will to act in light of the cases of Molnar
v Canada (Minister of Citizenship and Immigration), 2002
FCT 1081, [2002] FCJ No 1425 [Molnar]; Mohacsi v Canada (Minister of Citizenship and
Immigration),
2003
FCT 429, [2003]
FCJ No 586 [Mohacsi], the Court
reminds that this is not a consideration in the determination of the existence
of an IFA but rather that of the availability of state protection, which is not
under scrutiny under the circumstances.
[26]
In
light of the cases of Osuna
v Canada (Minister of Citizenship and Immigration), 2011 FC 588, [2011] FCJ No 743; Lopez v Canada Minister of Citizenship and Immigration), 2010 FC 990, [2010] FCJ No 1352; and Estrella
v Canada (Minister of Citizenship and Immigration), 2008
FC 633, [2008] FCJ No 806, it is widely accepted that the existence of an IFA is
determinative and such a finding is sufficient to dismiss a refugee claim.
[27]
Finally,
at hearing
before this Court, the applicant urged the Court to apply the Barua v. Canada (Minister of
Citizenship and Immigration), 2012 FC 59, [2012] FCJ No 70, and attempted to
draw parallels. However, the applicant’s arguments fall short and cannot apply
to the case at bar. Indeed, in Barua, above, the issue of an IFA was not
analyzed, and furthermore, the applicant was found to be credible in that case.
The decision was purely about the Board’s error in its analysis of the change
in country conditions in Bangladesh.
[28]
For all of these reasons, the Court finds that
the Board’s decision falls within a “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, above,
para 47). As such, the application for judicial review will be dismissed.
[29]
The parties have not proposed any question for
certification and none arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is dismissed;
2.
There
is no question for certification.
“Richard
Boivin”
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