Date: 20120529
Docket: IMM-6532-11
Citation: 2012 FC 658
Ottawa, Ontario, May 29,
2012
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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SHAMSUL KABIR TALUKDER
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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]
Mr.
Shamsul Kabir Talukder (the “Applicant”) seeks judicial review of the decision
of the Immigration and Refugee Board, Refugee Protection Division (the
“Board”), made on August 15, 2011. In that decision the Board determined that
the Applicant is neither a Convention refugee nor a person in need of
protection pursuant to section 96 and subsection 97(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the “Act”).
[2]
The
Applicant is a citizen of Bangladesh. He fears a group of
assailants who extorted, assaulted and kidnapped him. In his Personal
Information Form (“PIF”) attached to and forming part of his application for
protection, the Applicant indicated that he was basing his claim for protection
upon membership in a particular social group and political opinion.
[3]
The
Board identified the determinative issues as nexus and credibility. It found
that the Applicant was a victim of crime and that there was no nexus between
his prayer for protection and Convention refugee grounds. It also made negative
credibility findings particularly with respect to certain documents that had
been submitted by the Applicant. Since the Applicant had failed to establish a
nexus to a Convention refugee ground, the only issue arising in this
application for judicial review is whether the Board erred in determining that
the Applicant is not a person in need of protection within the scope of
subsection 97(1) of the Act.
[4]
The
issue in this application is fact-based, that is requiring the Board to assess
the evidence submitted. Accordingly, the decision is subject to review on the
standard of reasonableness; see Velazquez v Canada (Minister of
Citizenship and Immigration), 2011 FC 775 at para 14.
[5]
The
Board noted some contradictions and omissions in the documentary evidence
submitted by the Applicant. These documents consisted of letters from officials
of the Bangladesh Nationalist Party (the “BNP”), a medical note and a newspaper
article. The Board noted that the letters from the BNP did not mention the fact
that the Applicant had been kidnapped and in the Board’s opinion, that event
should have been mentioned.
[6]
Similarly,
the medical note was tendered to corroborate the beating that took place on
November 21, 2006 but it did not mention the beating; it referred only to a
wound on the forehead.
[7]
The
Board found that the newspaper article was a forgery that was submitted only to
bolster his claim.
[8]
In
addition to rejecting these documents, the Board found that the Applicant’s
failure to say in his PIF that he became unconscious as a result of the assault
on November 21, 2006 undermined his credibility.
[9]
During
the hearing the Applicant testified that the kidnappers had photographed him
during the abduction and threatened to distribute the photos throughout the
country. He said this meant that he could not hide anywhere in the country. The
PIF was silent about the photograph. The Board rejected the Applicant’s
explanation for its omission, the explanation being that he was stressed and
under pressure when he completed his PIF.
[10]
In
my opinion the Board’s treatment of the letters from the BNP was unreasonable.
The Board said the following at para 23 of its Reasons:
The
claimant’s testimony and his PIF make it clear that the MP was aware of the
claimant’s problems. If the letter submitted by this MP, in order to
corroborate the claimant’s allegations, makes no mention of his problem with
rival political parties, or of his extortionists, the same is true for the
other two letter [sic] submitted.
[11]
The
letter from the Commissioner Ward does refer to the Applicant’s problems with
members of other political parties. The Board erred in its assessment of this
letter.
[12]
Likewise,
the Board unreasonably concluded that the medical note was unreliable because
it did not mention that the injury was the result of a beating. I agree with
the Applicant’s argument that the doctor did not witness the beating and there
was no justification for diminishing the value of the note.
[13]
It
is unnecessary for me to address the other arguments raised by the Applicant.
The application for judicial review is allowed, the decision is set aside and
the matter remitted to a differently constituted Panel for re-determination.
There is no question for certification arising.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is allowed, the decision is set aside and the matter remitted to a
differently constituted Panel for re-determination. There is no question for
certification arising.
“E. Heneghan”
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