Date: 20080108
Docket: IMM-5618-06
Citation: 2008
FC 18
Ottawa, Ontario, January 8, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
SWAPAN
CHOWDHURY
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board) under section 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, dated
September 18, 2006. The Board determined that the applicant was neither a
Convention refugee nor a person in need of protection.
FACTS
[2]
The
applicant is a citizen of Bangladesh, where he was born in 1976. According
to his Personal Information Form (PIF), he joined the Awami League (AL) when he
was about 17 years old, and he became the publicity secretary of his local unit
in 1995.
[3]
The AL was in control of the Bangladeshi
government from 1996 to 2001, when a caretaker government was appointed with
the mandate to hold a fair election. The Bangladesh National Party (BNP) won
the election on October 1, 2001.
[4]
Before the
election was held, the applicant worked for an AL candidate of his locality. On September
18, 2001, as he was canvassing with party workers for this candidate, a
notorious BNP thug and his associates threatened him with death. A physical
confrontation occurred where the applicant was beaten and injured. The
applicant sought medical assistance and he was treated for serious blunt injury
and body wounds. He then went to the police station to report the incident. Although
he gave a written complaint, the applicant alleged he did not see the officer
entering any complaint in the official book, nor did the police take any steps
to arrest his assailants.
[5]
On December
2, 2001, the applicant participated in a nationwide peaceful strike to protest
the persecution of his party by the BNP. The applicant stated he was given
responsibilities to organize people from his area to participate in the strike.
At one point during the strike, violence broke out and a lot of AL members were injured by the police and
BNP members. The applicant, however, was not seriously injured.
[6]
At the
next serious confrontation, he sustained injuries during and after a public
meeting to protest against the detention and torture of AL members, on July 18, 2003. The applicant
was in charge of publicizing the event where the speakers strongly criticized
the government.
[7]
The
following day, the applicant was threatened by BNP thugs as a result of his
participation in the public meeting. The threat was also directed at Mr. Malak,
the unit president of the AL. The applicant managed to
escape, and he went to Mr. Malak’s home to tell him about the threat uttered
against both of them. They decided to go into hiding in a friend’s house.
[8]
They were
later warned that BNP thugs came to their houses looking for them. The
applicant therefore left for his cousin’s residence in Musapur on the island of Swandip, which is a five-hour drive and boat
trip from his family home. He stayed with his cousin for four months, only
going out at night.
[9]
On April
30, 2003, the applicant’s uncle sent an agent to get him and Mr. Malak out of
the country. He arrived in Canada on November 4, 2003 and he
asked for refugee protection.
[10]
The
applicant claims that the police and the BNP are still visiting his family’s
residences and interrogating them as to his whereabouts, even though he has
fled the country. He also learned from a lawyer hired by his brother that the
police want to question him under the Special Power Act. This law has
been used by successive governments to suppress political opposition and detain
opponents.
[11]
A previous
negative Board decision, dated March 22, 2005 was set aside by Justice
Mactavish on November 4, 2005. The Court reasoned that “[w]hile the Board did
not accept that Mr. Chowdhury was a high level member of the Awami League, it
did appear to accept that he was indeed an active member of the party”. Given
the Court’s view that “[t]here was significant documentary evidence before the
Board” of persecution of regular members of the AL, it was incumbent on the Board to
consider whether a claim was made out on the basis of mere membership. The
Board had not done this, so the decision was set aside and a re-determination
was ordered.
[12]
Accordingly,
a de novo Board hearing was held on July 6, 2006. The Board rejected the
applicant’s application a second time on September 18, 2006, as it found that
there was a viable Internal Flight Alternative (IFA). The applicant, therefore,
now asks for a judicial review of this Board decision.
THE IMPUGNED DECISION
[13]
The Board
made an adverse credibility finding as it doubted the truthfulness of the
applicant’s explanations. While the applicant explained that the police did not
consider his complaint, for example, the Board found that he was speculating. Similarly,
the Board did not believe that people in other parts of Bangladesh would notice his different
accent and find it suspect and thus, that he did not have an IFA. The Board
member considered that the applicant was embellishing his responses when he
explained that the BNP would still be looking for him, regardless of the time
elapsed since his departure from Bangladesh.
[14]
The Board
then noted contradictions in the applicant’s evidence. Indeed, the applicant stated
that there was no warrant issued for his arrest, and then later said a lawyer
found out that the police wanted to question him under the Special Powers
Act. According to the Board, the applicant also stated that if he returned
to other parts of Bangladesh he would not participate with the AL, and then later said he would continue
his political involvement.
[15]
Furthermore,
the Board member noted some omissions in his Port of Entry interview. The
applicant made no reference to the September 2001 beating, did not talk about
his key role in publicizing the July 18, 2003 meeting, and failed to mention
the death threat on July 19, 2003 that caused him to hide and flee out of the
country.
[16]
The Board
member also found that the applicant had embellished the “torture” suffered by
his family members. When asked to elaborate on his definition of the word
“torture”, he mentioned that the police or goons used a very firm voice when
speaking to his mother, which caused her great fear. He also referred to his
brother as being mentally tortured by being yelled at and spoken firmly to by
the police and goons.
[17]
That being
said, and despite his concerns with the credibility of the applicant, the Board
member was prepared to accept that Mr. Chowdhury has been an active member of
the AL. After having given consideration to all of the objective country
documentation, the Board member also agreed that active members of the AL could face persecution by political
enemies or their goons in various parts of Bangladesh.
[18]
The Board
member then devoted a little more than half a page to assess the IFA. He
concluded that the applicant would not be politically active unless he returned
to his family’s residence in South Halishahar, Chittagong. As he stated, “[o]n a balance of
probability, I would agree with the claimant that if he was to return to South
Halishahar, there might be more than a mere possibility of his being again
targeted by the BNP goons”.
[19]
Yet, the
Board member was of the view that the applicant could live safely in other
parts of Bangladesh. His reasoning holds in these
three paragraphs:
However, I have not accepted that if he
was living in other parts of Bangladesh, such as Dhaka (where his
uncle resides) or in Musapur in the island of Swandip, where other relatives reside, that he
would be necessarily located by previous enemies of the BNP or their thugs in
his hometown of South Halishahar in Chittagong.
I believe it is reasonable for the claimant to seek an internal flight
alternative in either Dhaka or Musapur.
As mentioned previously, I did not find
the claimant’s oral evidence on July 6th, 2006 in respect to his
internal flight alternative options as being plausible or credible, especially
when he stated that in either of these two locations, people would notice that
he has a different accent and therefore “he must have done something wrong to
be there”.
The claimant is well-educated and has a
varied employment background and therefore, with that combined with having
relatives in these two locations, I believe these are realistic internal flight
alternatives for him if he were to return to his country of citizenship, Bangladesh. In fact, I note that he was
in Musapur in the island
of Swandip for over four months and he
was at no risk at that time, even though he alleges he only went out during
evening hours.
ISSUES
[20]
The only
issue to be determined in this application for judicial review is whether the
Board member erred in finding that the applicant had a viable IFA in Dhaka and
Musapur. According to the applicant, this finding is flawed for three reasons. First
of all, the applicant contends the Board member did not consider whether he has
a well-founded fear of persecution in the IFA areas simply due to his active
membership in the AL, whether his allegations
about his past experiences are true. Secondly, the applicant argued that the
Board member ignored or misconstrued the evidence about whether the applicant
would be politically active in the IFA areas. Finally, the applicant submitted
that the Board did not apply the correct standard of proof in making its IFA
finding. I shall now turn to each of these three arguments.
ANALYSIS
[21]
It is
trite law that the appropriate standard of review when dealing with findings of
fact made by the Board in the context of an IFA is patent unreasonableness: see
Ali v. Canada (Minister of Citizenship and
Immigration),
2001 FCT 193; Ezemba v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1023; Chorny v. Canada (Minister of Citizenship and
Immigration), 2003 FC 999. As a result, 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)). As to the issue of whether the Board
properly applied the test for determining the possibility of a viable IFA, this
is a question of law to be assessed against a standard of correctness.
[22]
The
applicant tried to draw a distinction between his specific claim, based on his
past experiences of threats and persecution, and his general claim resulting
from mere party membership. In analyzing the objective basis of his refugee
claim, the Board rejected the specific claim of the applicant but accepted that
regular active members of the AL could face persecution in various parts of Bangladesh. But in its IFA analysis, the
Board lost sight of that conclusion and forgot to ask itself whether the
applicant had a well-founded fear of persecution in the IFA areas simply due to
his active membership, so goes the applicant’s argument.
[23]
Having
carefully read the cases relied upon by the applicant, I have come to the
conclusion that they do not stand for the proposition put forward in his oral
and written submissions. When assessing a refugee claim, the issue is always
personalized. Indeed, the two-pronged test to determine if an applicant has a
well-founded fear of persecution throughout his country of origin focuses on
his or her personal situation. This test, as set out by the Federal Court of
Appeal in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706, can be
summarized as follows: 1) Is there a serious possibility that a claimant be
persecuted in the suggested IFA locations? 2) Would it be unreasonably harsh in
all the circumstances for the claimant to move to an IFA location?
[24]
In other
words, the Board was required to be satisfied that there was no serious
possibility of the applicant being persecuted in other parts of Bangladesh and
that, in all the circumstances including those particular to the applicant,
conditions in these other parts of Bangladesh were such that it would not be
unreasonable for the applicant to seek refuge there. The real issue was not
whether there was a serious possibility, in the abstract, for an active member
of the AL to be persecuted in the
cities of Dhaka or Musapur, but whether the applicant, with his personal
characteristics, could find a safe haven in these locations.
[25]
The Board
did make this personalized assessment and found that the applicant had an IFA
in Dhaka and Musapur. First, it did
not accept that the applicant might be found to be suspicious and reported to
the police merely because he had a different accent from people living in these
two cities. Moreover, the Board noted that the applicant has relatives in both
of those two cities and that he lived in Musapur with a cousin for over four
months, even though he alleges he only went out during evening hours. Finally,
the Board added that the applicant is well-educated and has a varied employment
background. On the basis of these findings, the Board concluded that there are
realistic IFA for the applicant if he were to return to Bangladesh. These findings of fact are
not patently unreasonable, and I am not prepared to disturb them on an
application for judicial review. It may well be that active members of the AL
could be at risk in various parts of Bangladesh;
it does not follow that a particular member who faces persecution in his hometown
will also be threatened in other parts of the country.
[26]
Turning
now to the applicant’s second argument, it was submitted that the Board
misconstrued his testimony. The Board’s conclusion that the applicant had an
IFA in Dhaka and Musapur was based in part
on the fact that the applicant would not resume his political activities if he
were to return somewhere else than his home town. The Board “note[s] that the
claimant stated in his oral evidence that if he were to return to other parts
of Bangladesh, he would not be active with the Awami party unless he returned
to his family residence in South Halishahar, Chittagong” (T.R., p.141).
[27]
After a
careful review of the applicant’s testimony before the Board, I fail to see the
basis for this finding. Quite to the contrary, the applicant said that he will
attend all the AL meetings and processions anywhere in Bangladesh (T.R., pp. 195-196). He further stated
that he would definitely contact his previous unit of the AL after his return and resume his
activities (T.R., p. 222). The applicant expressed his lack of desire to return
to any part of Bangladesh, but added that if forced to
do so, he would return to South Halishahar since he could be located in other
areas anyway. This is understandable, given that in his locality, at least, he
has his family and a network of support. Be that as it may, he never stated
that he would not be politically active if he were to live in Dhaka.
[28]
The
Board’s finding is therefore completely at odds with the applicant’s testimony.
This may not have been of critical importance, had it not been for the fact
that this finding is crucial in assessing whether the applicant has an IFA in
Dhaka or Musapur. While he may be safe in these two cities if he lays low and
refrain from any political activity, it could very well be otherwise if he
resumes his participation in the AL
and tries to get in touch with members of his local unit. The Board erred in
not assessing this possibility, in light of the applicant’s testimony and of
its previous finding that active members of the AL could face persecution by political
enemies or their thugs in various parts of Bangladesh.
[29]
Finally,
the applicant argued that the Board did not apply the correct test in making
its IFA finding. In the extract quoted above, at paragraph 19 of these reasons,
the Board came to the conclusion that the applicant would be safe in other
parts of Bangladesh because it did not accept
that “he would be necessarily located by previous enemies of the BNP or
their thugs…” (T.R., p. 142) (emphasis added).
[30]
It is well
established that for the Board to conclude that an applicant has an IFA, it
must be satisfied on a balance of probabilities that there is no serious
possibility of the claimant being persecuted in that part of the country to
which it finds an IFA exists. The Convention refugee definition, of which the
IFA concept is an inherent part, does not require the applicant to prove that
he or she “would” be persecuted. There does not have to be a probability of
persecution, merely a reasonable chance. In analyzing the degree of risk a
refugee faces, it is an error to require that persecution “would” happen. In
adding the word “necessarily”, the Board required a virtual certainty of
persecution.
[31]
The
respondent retorted that the Board was merely addressing the facts and did not
purport to set out the risk threshold. In addition, it was submitted that the
Board was well aware of the correct standard, as evidenced by the following
sentence in the first paragraph under the IFA heading: “On a balance of probability,
I would agree with the claimant that if he was to return to South Halishahar,
there might be more than a mere possibility of his being again targeted by the
BNP goons” (T.R., p. 141). In any event, the respondent argued that one should
not become fixated with a few words without considering the decision as a whole
and the context within which those words appear.
[32]
The
problem with the respondent’s position is that this is not a case where
multiple formulations of the test have been used, some being correct and others
erroneous. The questionable wording of the test is the only phrase in the IFA
analysis that has to do with the standard of proof. The other sentence relied
upon by the respondent to demonstrate the Board’s familiarity with the correct
test has more to do with the assessment of the objective risk in the
applicant’s home locality.
[33]
In the
recent decision of Ghose v. Canada (Minister of Citizenship
and Immigration), 2007 FC 343 [Ghose], which also involved an
applicant from Bangladesh, my colleague Justice Snider found that the Board had
erred in its finding of an IFA because it had asked whether the applicant
“would” be persecuted in the IFA area. The case at bar is even more
problematic. In Ghose, the Board had used both a correct formulation and
an incorrect one of the standard of proof. The Court was therefore left with
doubt as to whether the correct formulation was used, but nevertheless chose to
allow the application for judicial review. Here, there is no such doubt as the
Board used only an incorrect formulation of the test.
[34]
Even if I
had some doubt as to whether the Board used the proper test, I would feel bound
to allow the application for judicial review. This is not a case where I could
say with some certainty that the same conclusion would be reached whatever test
is being used. In view of the fact that the Board also misconstrued the
evidence on a crucial aspect of the applicant’s claim, I am left with no other
choice but to quash the decision of the Board and to order a new hearing before
a different panel of the Board.
[35]
Neither
party proposed a question of general importance for certification, and none is
stated.
ORDER
THIS COURT ORDERS that the application for judicial
review is allowed and a new hearing is ordered. No question of general
importance is certified.
"Yves
de Montigny"
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