Date: 20070330
Docket: IMM-2586-06
Citation: 2007 FC 343
Ottawa, Ontario, March 30, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
BIMAL
KANTI GHOSE
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The
Applicant, Mr. Bimal Kanti Ghose, is a Hindu citizen of Bangladesh who bases
his Convention refugee claim on an alleged fear of persecution by reason of his
Hindu religion. Specifically, he fears persecution by the Bangladesh
Nationalist Party (BNP) and Jamat-e-Islam goons. In a decision dated April 13,
2006, a panel of the Immigration and Refugee Board, Refugee Protection Division
(the Board) determined that the Applicant was not a Convention refugee, or a person in
need of protection. The Applicant seeks judicial review of this decision.
[2] The Board’s decision turned on three key determinations:
- The Board did not
believe the Applicant’s testimony concerning an incident and threats
related to temple land;
- The Board concluded
that the Applicant had failed to rebut the presumption of state
protection; and
- The Board found
that the Applicant had a viable internal flight alternative (IFA) in Dhaka, located about 200
kilometres from the location of the alleged problems.
Issues
[3] This application raises the following issues:
- Did the Board make
its finding on credibility without regard to the evidence or through a
misapprehension of the evidence?
- Did the Board err
in its finding on state protection by failing to have regard to the
evidence?
- Did the Board err
in its IFA finding on the basis that: (a) it failed to assess the risk of
the Applicant, as a Hindu with a visible profile, in the IFA?; or (b) it
applied an incorrect test to the IFA finding?
Analysis
[4] The
first three issues relate to determinations by the Board that are subject to a
patently unreasonable standard of review. That is, the Court will only
intervene if the Board based its decision on a finding of fact that it made in
a perverse or capricious manner or without regard to the evidence (Federal
Courts Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d)). The final issue – whether
the Board applied the correct legal test in determining IFA – is subject to
review on the standard of correctness.
[5] Normally,
each of the determinations of credibility, state protection and IFA can stand
independent of the others. However, as discussed below, in this case, the three
key findings are interrelated.
Issue #1: Did the Board make its finding on
credibility without regard to the evidence or through a misapprehension of the
evidence?
[6] The
event that caused the Applicant to flee from Bangladesh occurred in
2005, while he was President of his local temple committee. He alleges that he
was threatened when he refused to relinquish temple land to the BNP local
leaders. He did not report the threat to members of the temple committee;
rather, he fled immediately to a neighbouring village and went into hiding. The
Board determined that there had been no threats over the temple lands. In
summary, the Board’s reasons were as follows:
- The Board did not
find it plausible that he would not have reported the threats to the
temple committee members; and
- The Applicant could
have pursued remedies under the Vested Property Return Act.
[7] Both parties
agree that the standard of review on issues of credibility is that of patent
unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration)
(1993), 160 N.R. 315 at 316-317 (F.C.A.), 42 A.C.W.S. (3d) 886; Brar v.
Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346
(F.C.A.)). However, while the Board is to be given deference on
implausibility findings, the Board must be careful to base such findings on the
evidence (Valtchev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 776 at para. 7 (F.C.T.D.), 208
F.T.R. 267). Further, “the
more important the evidence that is not mentioned specifically and analyzed in
the agency’s reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact” (Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration), 157 F.T.R. 35, 83
A.C.W.S. (3d) 264, [1998] F.C.J. No. 1425 at para. 17 (F.C.T.D.).
[8] The Applicant submits that
the Board erred in ignoring evidence that corroborated the main elements of his
claim. The Applicant points out that five of the 19 documents were statements
by various Hindu authorities and colleagues confirming the past persecution
that the Applicant alleged. The Applicant submits that beyond footnoting the Applicant’s
entire personal documentation package (Exhibit C-4), the Board did not discuss
or analyze any of the documentation that confirmed the threat that the
Applicant alleged prompted his departure from Bangladesh in 2005. The Applicant submits
that the Board’s failure to mention this evidence supports an inference that
the Board ignored it.
[9] The Respondent submits that the statements do
not corroborate the Applicant’s story, that none of them speak of the
settlement of a land dispute, that all are based on hearsay and that all are
similar in composition and that all come from the same district. This may well
be true. However, what is missing is the Board’s assessment of this evidence.
The only reference to the evidence is a footnote that appears in the section
where the Board states that:
According to the claimant’s testimony and supporting
evidence [this is where the footnote is placed], the claimant has 20 years of
education and taught at the graduate level in the areas of philosophy and
religion, written articles and books and traveled lecturing as a Hindu all over
Bangladesh from 1964 until 2003, a period just short of 40 years.
[10] In
using the evidence only to address the background of the Applicant, the Board
has either misapprehended this evidence or ignored those parts of the evidence
that refer to the alleged persecution of the Applicant. This evidence is
personal and directly relevant to the situation of the Applicant. By failing to
specifically mention and analyze this evidence, I am left to infer that the
Board either ignored or misconstrued the evidence. In my view, this error is
serious enough to put into question the entire credibility finding.
Issue#2: Did the Board err in its
finding on state protection?
[11] The
Board found that the Applicant had failed to rebut the presumption of state
protection. I note, however, that the Board’s reasons contain little analysis
of the availability of state protection for Hindus in Bangladesh. The
Applicant’s claim was based on a claim of persecution due to his religion and
he presented significant documentary evidence.
[12] The
Board noted that new laws and an alternative dispute resolution have been put
in place to help speed the administration of justice in Bangladesh. These
references are general and not directed to the situation for Hindus.
[13] The
Board also noted that, although the Applicant had received no police assistance
in the past, “these incidents were over ten years ago and the claimant
continued his work as a lecturer and practiced his Hindu religion until he left
in 2005”. While this statement may be true, it does not address the situation
today.
[14] The
Board then turned to the present situation, stating as follows:
The documentary evidence would support the contention that
after the 2001 election when the BNP formed the government with 193 seats and
formed a four party alliance, which included Jamat, that there were systemic
attacks on Hindus and freshly ousted Awami League members. It is reported in
the same document that by October 2001, 30 people were dead and 1,000 had been
injured. The documentary evidence refers to continued attacks on Hindus and
their temples, although most of the serious violations occurred in 2001. The
panel notes that there are approximately 13 million Hindus in Bangladesh and while even one death and/or injury
is tragic and too many, the incidence of those Hindus killed and injured is
miscule in proportion to the total population. The panel determines that simply
on the basis of being Hindu that there is less than a mere possibility of harm
should he return to Bangladesh.
[15] It
is unclear, given the final sentence, whether this paragraph is intended to
address the issue of state protection or the objective component of a fear of
persecution. In either event, I find the analysis to be seriously flawed. In
the first place, persecution cannot be measured by the percentage of a
country’s population that is killed. Secondly, the paragraph contains no
reference to the situation for Hindus with a high profile or whether the
Applicant would be a person with the profile that might attract the “systemic
attacks” referred to. And, finally, the Board fails to consider the arguments
put forward by the Applicant that adequate state protection is simply not available
for Hindus in Bangladesh. These
arguments, with reference to the documentary evidence, were put to the Board in
final submissions during the Applicant’s hearing.
[16] In
my view, the Board’s analysis of the issue of state protection is so inadequate
as to lead to a conclusion that it is patently unreasonable. In short, the
Board failed to consider the issue of state protection as it relates to a Hindu
leader in Bangladesh.
[17] In
reaching this conclusion, I am not suggesting that the Applicant has rebutted
the presumption of state protection. Rather, I am concluding that the Board did
not consider the evidence before it. Another panel of the Board, after
providing the Applicant a full hearing and considering all of the evidence, in
the end, may well come to the same conclusion.
Issue #3: Did the Board
err in concluding that the Applicant had a viable IFA in Dhaka
[18] The
Board concluded that the Applicant had a viable IFA in Dhaka, a city more
than 200 km from the alleged problems in Maulvibazar. The Board applied the
two-prong test in Rasaratnam v. Canada (Minister of Employment and
Immigration), [1992] 1 F.C. 706 (F.C.A.), 140 N.R. 138 and Thirunavukkarasu
v. Canada (Minister of
Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.), 109 D.L.R. (4th)
682. With respect to the first prong, the Board concluded that there was no
serious possibility of the Applicant being persecuted in Dhaka. During its
analysis of this question, the Board found that it was:
unreasonable to conclude that the BNP or
Jamat goons would recognize the claimant in a dense metropolis of Dhaka or more
specifically that the local Maulvibazar BNP leader Siddique or the local
Maulvibazar Jamat leader would happen to notice the claimant in Dhaka should
they be visiting.
[19] The
Board also found that the kind of hardship this Applicant may face in moving to
Dhaka is the kind
of hardship associated with relocation and dislocation and is not the kind of
hardship that renders an IFA unreasonable.
[20] The
Applicant argues that the use of the word “would” in the above-noted passage
indicates that the Board was applying a balance of probabilities test to the
IFA determination rather than the correct test.
[21] It
is not disputed that the Board must ask whether there is a reasonable chance or
serious possibility of persecution in the IFA (Adjei v. Canada (Minister of
Employment and Immigration), [1989] 2 F.C. 680 at paras. 5-12 (F.C.A.), 57
D.L.R. (4th) 153; Zhu v. Canada (Minister of Employment and
Immigration), 154 N.R. 213, 40 A.C.W.S. (3d) 488, [1993] F.C.J. No. 396
(F.C.A.); Yeboah v. Canada (Minister of Employment and Immigration), 66
F.T.R. 182, 42 A.C.W.S. (3d) 111, [1993] F.C.J. No. 733 at para. 53 (F.C.T.D.);
Carpio v. Canada (Minister of Employment and Immigration), 76 F.T.R. 64,
47 A.C.W.S. (3d) 134, [1994] F.C.J. No. 383 (F.C.T.D.)). The Applicant relies
on Carpio, above at para. 12, where the Court found that the following
wording was erroneous: “This does not mean…that there is a good chance that the
claimant would be persecuted if he were to return.” The Applicant points out
that there the Court found that even though the Board had stated the correct
test elsewhere in its reasons (as the Board did in the Applicant’s case as
well), there was “a doubt as to whether or not the Board applied the correct
test”.
[22] I agree with
the Applicant that the Board seems to have required that the Applicant prove
that persecution would more likely than not occur in Dhaka. The Respondent
argues that the Board did not err since it stated the correct test for
well-founded fear of persecution in the beginning of the IFA analysis.
Therefore, the Respondent submits, the Board was aware of the correct test. In
my view, the situation here is close to that described in Carpio, above.
As in Carpio, although the Board correctly stated the test at the
beginning of the analysis, use of the word “would” on the key finding raises a
doubt as to what test was actually used by the Board. This constitutes a
reviewable error.
[23] Further, the
Applicant submits that the Board failed to assess the situation for Hindus in Dhaka. The Board’s
decision on IFA followed its assessment of the availability of state
protection. Because it had already determined that Hindus were not, generally,
at risk in any part of Bangladesh, the Board did not consider the risk to
Hindus in Dhaka. Given that
I have determined that the Board erred in its assessment of the availability of
state protection, the underlying premise of the Board’s decision on the IFA is
flawed.
[24] In conclusion
on this point, the Court’s intervention on the Board’s IFA finding is warranted
on the basis that: (a) there is doubt as to whether the Board applied the
correct test; and (b) the Board, in considering the reasonableness of Dhaka as
an IFA did not consider the risk to the Applicant as a Hindu, in that city.
Conclusion
[25] In
conclusion, this application for judicial review will be allowed. Neither party
proposed a question for certification. I agree that the issues raised in this
application do not warrant the certification of a question.
ORDER
THIS
COURT ORDERS that:
- The
application is allowed, the decision quashed and the matter returned to be
reconsidered by another panel of the Board; and
- No
question of general importance is certified.
“Judith A. Snider”
_______________________________
Judge
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