Date: 20090323
Docket: IMM-5193-07
Citation: 2009 FC 304
Ottawa, Ontario, March 23,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
GOBINDA CHANDRA SAHA
ASHISH KUMER
SAHA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicants, father and son, seek judicial review of a decision of the Refugee
Protection Division (RPD) denying their claim for refugee protection.
II. BACKGROUND
[2]
The
Applicants are Hindu citizens of Bangladesh. They claimed a
well-founded fear of persecution based on their religion as part of a minority
and membership in a particular social group – wealthy property-owners.
[3]
The
persecution relied upon by the Applicants was said to have started in 2001, the
same year that the Awami League, which was supported by Bangladesh’s religious
minority, lost power and two years after the younger Applicant had left to
study in Canada.
[4]
The
acts of persecution included attacks on temples at which they were present, the
rape of a friend’s daughter, the ransacking and looting of their home and the
beating of the Applicants’ wife/mother, the torture and beating of a friend,
and the threat of similar treatment from Muslim fundamentalists.
[5]
Finally,
the younger Applicant alleged that in 2002, when he returned to Bangladesh to care for
his ill mother, he was attacked and threatened with death on two occasions. He
reported the second assault but the police did nothing. The third such event of
his homecoming was an assault on the home and the beating of the senior
Applicant’s three sons.
[6]
The
RPD found that the Applicants did not fall within either s. 96 or s. 97 because
of serious concerns about credibility and implausibility. These findings
included:
a.
the RPD did not think
it was reasonable that, following the incident in August 2001 when the older
Applicant’s wife was beaten and extorted, he would not have contacted the
police;
b.
the RPD found it
implausible that the Applicant left his wife and sons in Bangladesh, when he testified that they had been subject to
attacks by his alleged persecutors;
c.
the RPD found it
implausible that the younger Applicant would be the target of multiple attacks
during his brief return to Bangladesh in August 2002 to care for his sick
mother, when his younger brothers – 20 and 21 years old at that time,
respectively –were not subject to similar treatment;
d.
the RPD concluded that
the story of the alleged kidnapping of the older Applicant’s son in Bangladesh
in January 2007 was manufactured because (1) it was improbable that a ransom
had been sought by his kidnappers only after his release, (2) the General Diary
Entry was not on official police letterhead, (3) the newspaper announcement and
letters from family were self-serving, and (4) the note from the hospital made
no reference to the cause of his injuries;
e.
as for the letters from
Drs. Pilowsky and Ekeh confirming that the older Applicant had been diagnosed
with severe depression and anxiety, the RPD found that neither physician made
reference to the cause of the depression and, in any event, their opinion as to
the cause was only as credible as the facts, as presented by the Applicants.
[7]
The
RPD then went on to consider state protection. It found that the younger
Applicant had not followed up on his one police complaint. The RPD also
considered the documentary evidence of systematic attacks against Hindus and concluded
that the incidence of those killed or injured was miniscule and therefore
raised only a mere possibility of persecution.
[8]
Lastly,
the RPD considered the existence of an internal flight alternative (IFA) and
concluded that Chittagong, a city of more than 2 million inhabitants, 500 kilometres
from the Applicants’ home, was viable particularly as they had been away more
than five years and, being well educated, could find employment.
[9]
The
RPD summarized its view of the case as one where the Applicants were motivated
by a desire for a better life, and not by fear of harm.
III. ANALYSIS
[10]
The
Applicants’ submission that the RPD erred in law by not considering all of the
grounds of persecution, if true, should be reviewed on a standard of
correctness (Uluk v. Canada (Minister of
Citizenship and Immigration), 2009 FC 122).
[11]
To
the extent that the Applicants challenge findings of fact with respect to
credibility, implausibility, the weighing of documentary evidence, and the
factual basis for the IFA and state protection findings, these conclusions are
to be reviewed on a reasonableness standard (Dunsmuir v. New
Brunswick,
2008 SCC 9). To the extent that the findings are purely factual, the findings
are also subject to deference (Aguebor v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL)).
[12]
On
the first issue, it was not necessary to examine the Applicants’ claim of s. 96
persecution based upon their wealth. Wealth or perception of wealth is not a
grounds under s. 96 (see Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689 at page 739 and Moali de Sanchez v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 183). It was not necessary for
the RPD to address that ground of persecution. The RPD did, in fact, analyse
religious persecution but reached adverse conclusions based upon the record.
[13]
The
RPD’s decision really turns on the other issues, which are subject to a
reasonableness standard of review.
[14]
The
Applicants contend that it was unreasonable for the RPD to reject the
psychological evidence and to conclude that the doctors had not provided
reasons for the alleged post-traumatic stress disorder (PTSD).
[15]
The
RPD appears to have missed that Dr. Pilowsky found that the senior Applicant
suffers from PTSD. However, this is an immaterial matter as the report finds
the PTSD to be related to events which the RPD does not find credible.
[16]
It
is within the RPD’s mandate to discount psychological evidence when the doctor
merely regurgitates what the patient says are the reasons for his stress and
then reaches a medical conclusion that the patient suffers stress because of
those reasons. This is particularly the case where the RPD rejects the
underlying facts of the diagnosis. In this case, there were no independent
clinical studies performed to support the psychological assessment and no other
medical basis for the diagnosis.
[17]
The
RPD gave reasoned reasons for its credibility and implausibility findings. For
example, it was open to the RPD to not accept that a husband would leave his
wife and sons in such a perilous situation if there was any truth to the
allegations of harm.
[18]
The
same can be said for the other credibility and implausibility findings. Read as
a whole, these findings and the weight given to the evidence does not afford a
legal basis for the Court to interfere with the RPD’s conclusions.
[19]
It
is not strictly necessary to address the issues of state protection or IFA. In
any event, I find no reason to interfere with those conclusions.
IV. CONCLUSION
[20]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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