Date: 20090224
Docket: IMM-3547-08
Citation: 2009 FC 191
Ottawa, Ontario, February 24, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
BABLO TUSHAR,
ISRATH JAHAN, LAVINA JAHAN
Applicants
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a negative Pre-Removal Risk Assessment
(PRRA), which determined that the applicants would not be at risk of
persecution, torture, or cruel and unusual punishment if returned to Bangladesh, their
country of origin. For the reasons that follow, I find that the decision of
the PRRA officer was reasonable. Thus, the Court dismisses their application
for judicial review.
Background
[2]
The
applicants are Bangladeshi nationals. Bablo Tushar is the principal
applicant. The other applicants are his wife, Ishrat Jahan, and their nineteen
year-old daughter, Lavina Jahan. The family left Bangladesh and arrived in the
United
States of America on August 10, 2003. They came to Canada on October
1, 2003, where they claimed refugee status. They alleged that Mr. Tushar was
being threatened and targeted by the Bangladesh National Party (BNP) on account
of his political involvement with the Awami League (AL). Their claims were
rejected by the Refugee Protection Division on December 7, 2004, on grounds of
credibility and insufficiency of evidence. An application for leave to judicially
review that decision was denied.
[3]
In
June of 2005, the applicants applied for an exemption, on humanitarian and
compassionate grounds, from the legislative requirement to apply for permanent
residence from abroad (the H&C application). On February 3, 2006, they
filed applications for a PRRA. The H&C application was refused by decision
dated June 12, 2008. The PRRA application was refused four days later, by the
same officer.
[4]
On
July
30, 2008,
the applicants were informed by the Canada Border Services Agency that they had
been scheduled for removal to the U.S.A. on August 21, 2008. Their removal
was subsequently deferred by CBSA to September 18, 2008, to allow Israth Jahan
to attend a pregnancy related medical appointment. Notwithstanding that Mr.
Tushar had voluntarily bought airline tickets for a September 19 departure to
Bangladesh (rather than to the USA), the Court granted the applicants’ stay
application and suspended execution of the removal order pending determination
of the present review application.
[5]
The
impugned risk assessment is six pages in length. In it, the officer describes
the risk alleged by the applicants. Although it is the same risk previously
alleged in support of their failed refugee claim, the applicants tendered new
evidence in connection with the PRRA. The officer determined that some of the
new evidence would have been available in 2004 to be presented to the RPD in
connection with the refugee claim, and for this reason refused to consider it.
[6]
The
officer afforded little weight to letters from the President of the Dhaka City AL,
the General Secretary of the Dhaka City AL, as well as a former AL
parliamentarian, on the basis that the authors’ assertions that the applicant
would be in danger of harm from government authorities or BNP supporters were
speculative and uncorroborated by any objective evidence. The officer noted
that none of the authors themselves attested to any history of harassment or
persecution on account of their own political activities.
[7]
Referring
to a letter from the applicant’s Bangladeshi lawyer suggesting that he is a
wanted man and that the ruling BNP is relying upon the Special Powers Act of
1974 to put political opponents in indefinite detention, the PRRA officer noted
that IRB documentation suggests that such assertions concerning the Special
Powers Act generally lack credibility and are easily obtainable;
accordingly, she found that the letter was of little probative value.
Similarly, the officer granted little weight to a 2006 article from the Daily
Sabuj Desh newspaper referring to the applicant by name and reporting that he
was harassed after elections in 2001, noting that a World Bank report
referenced in IRB documentation describes a “high likelihood” of Bangladeshi
journalists seeking or accepting money for news coverage, and that the article
does not list any new developments in his case that would have warranted a
report.
[8]
In
her reasons, the officer then went on to consider reports on general country
conditions from a variety of sources (UK Home Office; BBC; US Department of
State), to conclude that while there is evidence of continued political
violence in Bangladesh and the targeting of high profile individuals, the
principal applicant has not provided evidence that he is a prominent political
figure or that he has a profile which would make him a person of interest to
the authorities; rather, there was no evidence of his involvement in any
Bangladeshi party for quite some time.
[9]
On
these grounds, the officer determined that the applicants had demonstrated
“less than a mere possibility” of persecution, were they to be returned to
Bangladesh, and that there were no substantial or reasonable grounds to believe
they would face any risk of torture, cruel and unusual punishment or treatment,
or a risk to their lives.
Issues
[10]
The
applicants raise two issues as grounds to set aside the officer’s decision:
a.
Whether
the officer erred in demanding evidence to corroborate uncontradicted
statements contained in the letters tendered from the President and the
Secretary General of the Dhaka City AL, and the former Parliamentarian; and
b.
Whether
the officer erred in making findings that were not based on the evidence by
relying selectively on the IRB document discussing the Special Powers Act, and
failing to appreciate that the Bangladeshi lawyer referenced abuse of the Criminal
Procedure Code (CrPC) not the Special Powers Act, to place Mr.
Tushar on a list of suspects.
Analysis
Corroborative
Evidence Requirement
[11]
The
three letters submitted by the applicant from Bangladesh each
concluded that Mr. Tushar will be arrested and is in danger upon his return to Bangladesh, either by
government authorities or by BNP supporters. The applicants submit that there
was no finding by the PRRA officer that these letters were not authentic and
thus the evidence in them was not contradicted. They submit that in requiring
that the applicants provide evidence to corroborate this evidence the officer erred
and, in effect, put these applicants to a higher standard of proof than is
required. Alternatively, the applicants submit that if corroborative evidence
is required, such evidence was in the record before the officer, but was either
ignored or overlooked by her.
[12]
For its part, the
respondent submits that it was reasonable of the officer to determine that the
letters attesting to the risk Mr. Tushar allegedly faces were of little
probative value. It is further submitted that the officer failed to find that
there was any personalized risk to Mr. Tushar, even though there is evidence of
abuses of human rights by the government authorities in Bangladesh.
[13]
Having
examined the officer’s comments respecting corroborative evidence within the
context of the decision as a whole, I am not persuaded that she applied the
wrong test or that she placed too high a burden on the applicants and the
evidence tendered by them.
[14]
The
officer’s decision begins by noting that the refugee claim was denied on the
basis of credibility. The RPD, it is noted, also concluded that Mr. Tushar’s profile
was not such that he would personally be of interest to the BNP or its
supporters. Countering this finding of the RPD in a decision that this Court
denied leave to review, is the evidence in three letters. The officer notes
that the letter writers state that “various reliable sources” inform the
authors that the police are looking to arrest Mr. Tushar. The officer asks:
“Where is the evidence to support this assertion?” and finds there is none.
She considers the lack of evidence that the letter writers themselves, although
they occupy more prominent roles in the AL than Mr.
Tushar, have themselves been targets of harassment, intimidation or threats.
She concludes that the authors’ assertions concerning the risks faced by Mr.
Tushar are speculative and that they are to be given little weight.
[15]
In
my view, the officer’s analysis of the evidence, in the context of the other
evidence, is reasonable and cannot be upset on the basis claimed by the
applicants. Given that the previous denial of the refugee claim was
effectively a denial of the applicants’ assertion that Mr. Tushar’s life was in
danger as a result of his involvement in the AL, the officer cannot be faulted
for requiring clear and convincing evidence that he would be at risk if
returned to Bangladesh when the
same risk is alleged. Letters from persons occupying more prominent roles in
the AL than the
principle applicant, with no evidence that they themselves have been targeted,
is not clear and convincing evidence.
[16]
The
corroborative evidence identified by the applicants in the certified tribunal
record which they submit supports the evidence in these letters, does not, in
fact, corroborate the fundamental allegations – that the government authorities
are looking to arrest and detain Mr. Tushar and that he is being sought by BNP
goons. Rather, it corroborates facts such as the use of the Special Powers
Act and arrest of persons in Bangladesh without warrant.
Absent proof that Mr. Tushar is a target, he is at no greater risk on return
than any other citizen of Bangladesh. That is insufficient
for a finding that he and his family is at risk if returned to their country of
birth.
Failure to
Consider the Evidence Related to the Special Powers Act
[17]
The
applicants submitted a letter from a lawyer in Bangladesh which details the
misuse by BNP authorities of the Special Powers Act and states that Mr.
Tushar’s name is on a list of political activists who could be arrested by the
police by misusing section 54 of the Code of Criminal Procedure and that
they may detain him for an indefinite period under the Special Powers Act.
The officer finds that the letter is of “low probative value and is
self-serving in nature”. In particular, she quotes from the Response to
Information Request BDG101313: “[l]etters signed by lawyers … stating that a
person is wanted under the Special Powers Act, without providing a Court/Police
case number and warrant number, lack credibility.”
[18]
The
applicants correctly point out that the applicants’ Bangladeshi lawyer does not
assert that Mr. Tushar is wanted under the Special Powers Act. This,
they submit explains the lack of a reference to a case or warrant number.
However, the officer’s reasons for giving the letter little weight have nothing
to do with the lack of a case or warrant number. Rather, the officer discounts
the Bangladeshi lawyer’s assertions on account of a lack of corroborative
evidence for them.
[19]
First,
the lawyer writes that he has gone to various police stations and courts but
did not find any complaints against Mr. Tushar but “one police officer from the
local police station informed me that your name is in the list of opposition
political activists” and that those on the list would be arrested. This
statement, in light of the fact that the other three authors, who all occupy
more significant positions as political activists, have not been arrested is
rightly deserving of little or no weight. Second, he also writes that the
source of his knowledge that Mr. Tushar is being sought by BNP supporters is
from family members of Mr. Tushar. Aside from the fact that this evidence was
provided by interested parties, the officer notes that the lawyer has not said
in the letter how these family members came to know this. In all of these
circumstances, the officer’s decision not to accord the letter much evidentiary
weight, cannot be said to be unreasonable.
[20]
Accordingly,
and for these reasons this application is to be dismissed. Neither party
proposed any question for certification.
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