Docket: IMM-2353-11
Citation: 2011 FC 1406
Ottawa, Ontario, December 2, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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ROBIN CHOUDRY
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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
INTRODUCTION
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated 17 February 2011 (Decision), which refused the Applicant’s
claim for protection as a Convention refugee under section 96 or a person in
need of protection under section 97 of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of no country. He believes he is Bihari – an ethnic
group from India. He has a
letter which says his parents are Arshad Choudhary and Razia Begum, but he does
not remember them or know where they were born. He does not know where he was
born, but he believes he was born in 1982. He speaks Bengali and some Greek.
The Applicant has a daughter, but he does not know where she is.
[3]
When
he was seven years old, the Applicant’s parents died. Shortly after that, a man
the Applicant called “Uncle Rahim” (Rahim) took him to Karachi, Pakistan and left him
in an orphanage there. He was abused at the orphanage. In 1999, a man named
Johnny Khan took the Applicant to Greece, telling him that he would bring him
to Canada. The Applicant
lived illegally in Greece, but found work in a garment factory. He was
forced out of the garment factory when the factory managers decided to get rid
of all their illegal workers. The Applicant then turned to selling goods on the
street in Athens.
[4]
While
the Applicant was a street vendor in Greece, the Greek police harassed
him and other street vendors. The police sometimes took goods from him without
paying for them and solicited bribes. The Applicant grew tired of the police harassment
and, because he thought he would be helped in Canada, he paid a
smuggler to bring him here. The smuggler provided him with a false identity and
passport, which the Applicant used to travel to Canada. He arrived
in Canada on 31
December 2008.
[5]
The
Applicant claimed protection on 2 January 2009. The RPD held its hearing into
his claim on 12 January 2011. The RPD panel member, the Applicant, and his
counsel were present at the hearing. Counsel made oral submissions at the
hearing and written submissions on 14 February 2011. The RPD made its decision
on 17 February 2011 and gave the Applicant notice of its decision on 16 March
2011.
DECISION
UNDER REVIEW
[6]
After
reviewing the information before it, the RPD found that the Applicant was
neither a convention refugee under section 96 of the Act nor a person in need
of protection under section 97 of the Act. The RPD said that the determinative
issue in Applicant’s claim was identity, which he had failed to establish. The
RPD also found that the Applicant did not have a well-founded fear of
persecution in Greece, which was the appropriate country of reference
because the Applicant was stateless and Greece was his last
country of habitual residence.
Identity
[7]
The
RPD found that the Applicant was credible and that what he said had happened to
him had actually occurred. Notwithstanding this positive finding of
credibility, the RPD found that the Applicant had not established his identity
on the basis of any credible evidence. The RPD noted that the Applicant did not
have any government issued ID; the only documentary evidence he had to prove
his identity was a letter from the orphanage in Karachi. That letter
said that the Applicant had lived at the orphanage from 1989 to 1996 and also
contained the names of his parents, Arshad Choudhary and Razia Begum. The RPD
noted that there was no information on how the orphanage knew the names of the
Applicant’s parents and presumed that Rahim had told the workers at the
orphanage.
[8]
The
RPD accepted the Applicant’s assertion that he is Bihari. It found that the
Applicant was born in Bangladesh because his parents’
names are Bengali and he speaks Bengali. The RPD examined country documentation
on Bangladesh. It said
this evidence showed that only those born in Bangladesh before 1979 or to
parents born in Bangladesh before 1979 are automatically citizens. The RPD
found that the Applicant could not be a citizen of Bangladesh by birth, as
he was born after 1979. It also found that he would be unable to establish citizenship
by descent because he does not know who is parents are. The RPD noted that the
Applicant had not been able to obtain identity documents from the Bangladeshi
authorities in Canada, even though he had tried to do so. Since he is
not a citizen of Greece, the Applicant is stateless.
[9]
The
RPD found that the Applicant had not established his identity, including his
name, so his claim must fail. It pointed out to him at the hearing that “Robin”
is a “Christian” name, which would be unusual in Bangladesh and Pakistan, which are
predominantly Muslim countries. The Applicant said at the hearing that he did
not know why he had that name and that Rahim had told him that it was his name.
[10]
The
RPD said that “it is not as if the claimant is vigorously asserting what his
identity is.” It noted that he was uncertain about his name himself; he had
been dropped off at the orphanage when he was very young; and he “appeared to
have just been given a name, for convenience.” It found that the Applicant did
not come even close to establishing his personal identity.
Country of Reference
[11]
The
RPD found that Greece was the appropriate country of reference
against which to examine the Applicant’s claim for protection. It found that
the Applicant was neither a citizen nor a national of Greece; however, Greece was his last
country of habitual reference. As the Applicant’s country of reference was Greece, the RPD
examined whether he had a well-founded fear of persecution there.
Well-Founded Fear of Persecution
[12]
The
RPD noted that the Applicant had lived illegally in Greece without any
status. It found that the problem he faced there was harassment from the
police, either simply because he was illegally in the country or because he was
illegally in the country and a street vendor. Though the RPD found the
Applicant’s story credible, it found that what the police did to him was simply
harassment and did not amount to persecution on a Convention ground. It also
found that, because he was illegally in the country, the Greek authorities had
the right to act against him.
[13]
Although,
the Applicant’s counsel at the hearing had submitted that the Greek authorities
might deport the Applicant to Bangladesh if he were returned to
Greece, the RPD found this would be a lawful course of action because he did
not have status in Greece. Further, if he were deported from Greece to Bangladesh, the main
problem that the Applicant would face there would be statelessness. Counsel’s
submissions at the hearing suggested that Biharis live in generally poor
conditions; but the RPD found that Biharis in Bangladesh face
widespread discrimination but not persecution.
[14]
The
RPD said that it had examined the Greece Index, a list of documents prepared by
the Immigration and Refugee Board on the basis of publicly available
information. The index showed that, as the Applicant testified, police in Greece abuse illegal
immigrants. It also noted that Greece is a democracy, has civilian authorities
which maintain control of the security forces, and has a fair and independent
judiciary. The RPD noted that Applicant could have claimed refugee status in
Greece because Greece is a signatory to the 1951 Convention
Relating to the Status of Refugees and the 1967 Protocol Relating to the
Status of Refugees, but he did not.
Conclusion
[15]
The
RPD found that the Applicant’s claim for refugee protection, based on his fear
of persecution because of his lack of legal status in Greece, failed. His
claim also failed because the RPD had insufficient credible evidence to find he
had established his identity.
ISSUES
[16]
The
sole issue raised by the Applicant is whether the RPD’s determination that Greece was the
appropriate country of reference was reasonable.
STANDARD OF
REVIEW
[17]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008
SCC 9, held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[18]
In
M.R.A. v Canada (Minister of Citizenship and Immigration) 2006 FC 207,
Justice Konrad von Finkenstein found at paragraph 7 that the standard of review
on the determination of a country of reference was patent unreasonableness. In El
Rafih v Canada (Minister of Citizenship and Immigration) 2005 FC 831,
Justice Sean Harrington noted at paragraph 15 that a conclusion on country of
reference is a question of mixed fact and law. As the Supreme Court of Canada
held in Dunsmuir, above, at paragraph 51, such questions generally
attract a standard of review of reasonableness. Further, Justice Michael Phelan
followed a similar approach in El Karm v Canada (Minister of
Citizenship and Immigration) 2006 FC 972, when he found at paragraph 7
that the standard of review on the determination of a country of former habitual
residence was reasonableness simpliciter. The standard of review on the
issue raised by the Applicant is reasonableness. See also Tarakhan v Canada (Minister of
Citizenship and Immigration), [1995] FCJ No 1525.
[19]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59. Put another way, the Court should intervene only if the Decision
was unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
STATUTORY
PROVISIONS
[20]
The
following provisions of the Act are applicable in this proceeding:
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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,
…
(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.
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
…
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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 :
…
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.
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.
…
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ARGUMENTS
The Applicant
[21]
The
Applicant argues that the RPD erred when it found that Bangladesh was not the
appropriate country of reference to evaluate his claim against. He says that Permaul
v Canada (Minister of
Employment and Immigration), [1983] FCJ No 1082 (FCA) establishes a
presumption of truthfulness for claimants’ testimony before the RPD. In his
case, the RPD believed his story and found that he was born in Bangladesh. He says
that the proper country of reference for his claim was Bangladesh because he
was born there and is a citizen of no other country. This is so even though he
is not a Bangladeshi citizen.
[22]
There
was documentary evidence before the RPD showing that Biharis, like the
Applicant, are denied Bangladeshi citizenship. Though his counsel raised the
situation of Biharis in his written submissions, the Applicant says that the
RPD ignored this evidence.
[23]
The
Applicant also notes that he was illegally in Greece the entire
time he was there and he was mistreated by the Greek police because he was an
illegal immigrant. He says that if he were returned to Greece, the
authorities there will send him to Bangladesh because he does not
have Greek status. However, Bangladeshi authorities will deny him entry because
he is not a citizen. He is not a citizen in Bangladesh because he
is Bihari. Since his unfortunate situation revolves around his Bihari
background, the RPD should have considered this. The RPD failed to assess the
impact of the Applicant’s Bihari background on his ability to obtain
Bangladeshi citizenship, which amounts to a reviewable error.
The
Respondent
[24]
The
Respondent says that the Applicant has not proven that he will face more than a
mere risk of persecution in either Bangladesh or Greece. Though he
may face discrimination in Bangladesh, the RPD’s finding that
this would not amount to persecution was reasonable, as was its finding that
any harassment the Applicant might face in Greece would not
amount to persecution. The Respondent says that the RPD’s finding that the Applicant
had not established his identity was also reasonable. Further, the RPD’s
findings that the Applicant was neither a convention refugee nor a person in
need of protection were reasonable and should not be disturbed.
The Decision was Reasonable
[25]
The
RPD’s findings that the Applicant was neither a convention refugee nor a person
in need of protection were reasonable and were based on the evidence before it.
Though there may be issues with the Decision, the RPD made reasonable findings
that the Applicant will not face persecution in either Bangladesh or Greece. These
findings render any other issues meaningless. The Respondent notes that the RPD
may have ignored the 2009 UNHCR note on the Nationality Status of the Urdu
Speaking Community in Bangladesh (2009 UNHCR Report) which suggested that, as a
stateless Bihari, the Applicant may be eligible for citizenship in Bangladesh.
The RPD may also have failed to consider Pakistan as a country
of reference. These errors do not impugn the reasonableness of the findings
that the Applicant did not adduce sufficient evidence to prove he is a Convention
refugee or a person in need of protection. Since those findings are enough to
dispose of the claim, the Decision should stand in spite of the technical
errors.
[26]
The
Respondent also says that the RPD’s finding that the Applicant had not
established his identity, though its analysis may have been incomplete, was obiter.
The RPD determined the Applicant’s claim on the basis that he did not face persecution
in either Bangladesh or Greece, so his
identity does not matter. The RPD seems to have found that the Applicant did
not establish his identity because he did not provide any identity documents.
This could be an error under section 106 of the Act, but does not present an
arguable issue here because the claim was determined on a different basis.
The RPD’s Persecution Findings were
Reasonable
[27]
The
Respondent argues that the RPD’s findings that the Applicant would not face
persecution were reasonable because they were based on the evidence that was
before it. The Applicant did not demonstrate a serious possibility of persecution
in Bangladesh or Greece, so the claim must fail.
Statelessness does not Amount to
Persecution
[28]
The
highest claim that the Applicant could have made was as a stateless Bihari in Bangladesh and the RPD
determined his claim on this basis. However, statelessness in and of itself
cannot ground a refugee claim. The Respondent relies on Thabet v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 629 (FCA) where the Federal
Court of Appeal wrote at paragraphs 27 and 28 that
[Where] a
claimant has been resident in more than one country it is not necessary to
prove that there was persecution at the hands of all those countries. But it is
necessary to demonstrate that one country was guilty of persecution, and that
the claimant is unable or unwilling to return to any of the states where he or
she formerly habitually resided. While it may appear burdensome to impose this
duty upon all stateless claimants, we must, in the light of Ward, properly take
into account the situations where claimants have other possible safe havens.
Stateless
people should be treated as analogously as possible with those who have more
than one nationality. There is a need to maintain symmetry between these two
groups, where possible. It is not enough to show persecution in any of the
countries of habitual residence--one must also show that he or she is unable or
unwilling to return to any of these countries. While the obligation to receive
refugees and offer safe haven is proudly and happily accepted by Canada, there is no
obligation to a person if an alternate and viable haven is available elsewhere.
This is in harmony with the language in the definition and is also consistent with
the teachings of the Supreme Court in Ward. If it is likely that a person would
be able to return to a country of former habitual residence where he or she
would be safe from persecution, that person is not a refugee. This means that
the claimant would bear the burden, here as elsewhere, of showing on the
balance of probabilities that he or she is unable or unwilling to return to any
country of former habitual residence. This is not an unreasonable burden. This
is merely to make explicit what is implicit in Ward and in the philosophy of
refugee law in general. […]
[29]
To
be successful in a claim for protection, a stateless person must establish both
persecution and a lack of a safe alternative. The Applicant has not established
persecution, so he cannot be a convention refugee or person in need of
protection.
No
Persecution in Greece
[30]
The
Respondent notes that the RPD concluded that the Applicant had not shown that
he had been persecuted in Greece. The Federal Court of Appeal, in Sagharichi
v Canada (Minister of
Employment and Immigration), [1993] FCJ No 796 (FCA) at paragraph 3,
held that “the dividing line between persecution and discrimination or harassment
is difficult to establish” and that this is a decision for the RPD to make. The
RPD found in this case that the Applicant might be deported to Bangladesh by the Greek
authorities and that this would be legitimate enforcement of laws of general
application. This was a reasonable conclusion and should not be disturbed.
[31]
The
Respondent also says that the lack of a legal right to enter a country of
former habitual residence does not amount to persecution unless the refusal of
entry arises based on a convention ground or an intention to persecute. See Altawil
v Canada (Minister of
Citizenship and Immigration), [1996] FCJ No 986, and Maarouf v Canada (Minister of
Employment and Immigration), [1993] FCJ No 1329. Though the Applicant does
not have a legal right to enter Greece, this does not amount
to persecution and cannot ground his claim.
No Persecution in Bangladesh
[32]
The
Respondent notes that the RPD, though it was not required to, considered the
Applicant’s claim against Bangladesh. The only
discrimination the Applicant has alleged against Bangladesh is a denial
of citizenship. The Applicant has not provided any evidence of persecution or
any risk to him if he returns to Bangladesh. The Applicant left Bangladesh with Rahim
for reasons other than persecution or risk. Also, if he is actually entitled to
Bangladeshi citizenship, as the 2009 UNHCR report suggests he is, there is no
basis for his fear based on statelessness.
[33]
Though
the Applicant could point to similarly situated individuals in Bangladesh to establish
his claim, he has not done so. The conditions faced by Biharis, which the
Applicant referred to in his submissions to the RPD, are faced by people who
have spent their entire lives in Bihari refugee camps in Bangladesh. These
people are not similarly situated to the Applicant, who has not been to Bangladesh in more than
twenty years. Though he may experience discrimination as a Bihari if he returns
to Bangladesh, the
Respondent says that the RPD’s conclusion that this would not amount to
persecution was reasonable, so the Decision should stand.
ANALYSIS
[34]
The
Applicant raises a single issue. He says that the country of reference for the
RPD’s Decision should have been Bangladesh, rather than Greece, based on
the fact that he was born in Bangladesh and had not acquired
citizenship or permanent residence in any other country. He also says that the
RPD committed a reviewable error because it failed to assess the impact of the
Applicant’s Bihari background on his ability to obtain Bangladeshi citizenship
and the general situation of Biharis in Bangladesh. The
Applicant appears to be suggesting that he qualifies for section 96 protection
because he was “subjected to official discrimination in his own country [i.e. Bangladesh] including
being denied citizenship because he is Bihari.”
[35]
The
RPD specifically found that the Applicant would not be able to establish
Bangladeshi citizenship because of when he was born, and his inability to
identify his parents at paragraph 11 of the Decision:
As to whether he is a citizen of Bangladesh, the Panel has reviewed
Exhibit R/A-1. Item 3.1 thereof deals with this issue, and the Panel cannot
find, on a balance of probabilities, that the claimant is a citizen of Bangladesh. It indicates generally that
only persons born in 1971 or earlier in the country are deemed citizens, and
their descendents. The claimant indicated that he believed he was born in 1982,
thus he would not be a citizen by birth. The claimant does not know who his
parents are, and thus, the Panel finds that the claimant would not be able to
establish Bangladeshi citizenship. This finding is corroborated by the claimant’s
evidence that he has been unable to get citizenship documents from Bangladesh [sic]
authorities in Canada, as well as counsel’s
submission that the Biharis are not citizens of Bangladesh.
[36]
Evidence
on the record, and before the RPD (i.e. the 2009 UNHCR report) suggests that
the RPD made a fundamental mistake of fact on this point. That report notes a
2003 decision of the Supreme Court of Bangladesh which seems to say that Urdu
speakers (i.e. Biharis) always qualified as Bangladeshi nationals under domestic
legislation.
[37]
The
Respondent concedes this mistake by the RPD which means that the Applicant’s
claim should have been assessed against Bangladesh. The
Respondent’s position, however, is that the mistake does not matter because the
RPD does address the situation in Bangladesh in paragraph 13 of the
Decision. In any event, the Respondent says there was no evidence of
persecution in Bangladesh before the RPD upon which a refugee claim
against that country could have been based.
[38]
The
correct approach to these matters was set out by the Federal Court of Appeal in
Thabet, above, at pages 9-10. Because the Respondent concedes that a
mistake was made in the present case, I will not quote at length from Thabet.
[39]
My
review of the evidence placed before the RPD concerning the treatment of
Biharis in Bangladesh, including
the 2009 UNHCR report which suggests that their situation may have improved,
required the RPD to assess and weigh the relevant evidence and reach a reasoned
conclusion on point. Because the RPD made the mistake of focusing upon Greece,
a proper assessment of the situation facing the Applicant in Bangladesh was never
done. It is not clear from its reasons that the RPD considered all the evidence
before it on Bangladesh. Even if it
did so, the reasons at paragraph 13 are not adequate to support the conclusion
the Applicant does not face persecution in Bangladesh because he
is Bihari. In my view, the Decision is both unreasonable and procedurally
unfair.
[40]
Because
the RPD makes it clear in the Decision that its focus was on Greece, I think it
would be unsafe not to allow the Applicant a full consideration of a refugee
claim against Bangladesh. Hence, for
reasons given, I think this matter has to be returned for reconsideration.
[41]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a differently constituted RPD.
2.
There
is no question for certification.
“James
Russell”
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