Date: 20080304
Docket: IMM-7284-05
Citation: 2008 FC 290
Ottawa, Ontario, March 4,
2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
HASAN
MAHMUD CHOWDHURY
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Chowdhury, a citizen of Bangladesh, seeks judicial review
of a decision of the Refugee Protection Division (RPD), dated November 17,
2005, wherein the panel found that Mr. Chowdhury is neither a Convention
refugee nor a person in need of protection. As I have concluded that the member
erred in finding that the applicant faced no risk of persecution because of an
intervening change of government in Bangladesh, the matter must be remitted for
reconsideration by a differently constituted panel.
[2]
The
applicant fears
persecution in his native country due to his political activities. In 1990, he
became active in the student wing of the Bangladesh National Party (BNP), and
was appointed president of his branch in 1997. He alleges that supporters of
the rival political party, the Awami League (AL), were responsible for attacks
on him and his home, particularly following the election victory of the AL in October, 1996. He
also claims that he was pressured to change parties after the 1996 elections.
[3]
On
August 30, 1997, Mr. Chowdhury was arrested and detained on a variety of criminal
charges, including extortion and possession of illegal weapons, all of which he
denies. He claims that while in custody, the demands that he join the AL were repeated; he
refused and was beaten. He was released on bail on September 23, 1997, subject
to a requirement to report monthly to police. After reporting twice, and
believing that the AL were searching for him,
the applicant went into hiding and subsequently relocated to Dhaka. After obtaining a false
passport, he fled to Canada, arriving on April 24,
1998 and immediately claiming refugee protection.
[4]
On
June 19, 1999, the Immigration Division determined that Mr. Chowdhury was not
excluded on grounds of serious criminality under Article 1F(b) of the Refugee
Convention by reason of the outstanding charges in Pakistan and his claim was
referred to the RPD. At his first hearing before the RPD, the panel arrived at
a different conclusion respecting exclusion. An application for judicial review
was granted by Justice Luc J. Martineau in 2003 on the ground that the RPD
erred by refusing to accept that an estoppel existed between the parties based
on the earlier finding of the Immigration Division. The second hearing took
place in two sessions, in June and October 2005.
[5]
In
the second decision on Mr. Chowdhury’s claim for refugee protection, the RPD member determined
that she was not satisfied that he had a well-founded fear of persecution in
Bangladesh as of the date of the decision. She found that there were not
substantial grounds to find that he was a person in need of protection, and
rejected his claim.
[6]
The
RPD member based her decision primarily on the fact that the BNP had been
victorious in an electoral contest in 2001. She held that the new governing
party is able to protect its supporters, and that the police would be reluctant
to pursue the charges against Mr. Chowdhury because of his political
connections. She also drew a negative inference from the fact that the
applicant had not directly contacted lawyers in Bangladesh to confirm that the
charge against him was still outstanding and that he had failed to produce
reliable evidence about the situation in Bangladesh at the time of the hearing.
An inquiry made by the Canadian Mission had been unable to find any record of a
warrant having been issued for the arrest of the applicant.
Issues:
[7]
The
applicant challenges the decision on the grounds that the member erred
1. in assessing the burden of
risk under paragraph 97(1)(b) of the IRPA;
2. in finding that Mr.
Chowdhury’s fears had no objective basis at the time of the hearing; and,
3. in failing to assess whether
the change in government would lead to durable, meaningful or
effective change in the circumstances of the applicant.
Analysis:
Burden of Risk
[8]
The
selection of the appropriate legal test is a question of law, reviewable on a
standard of correctness. I am not satisfied that the member erred by using the
phrase ‘substantial grounds’ in her analysis for assessing the risk to the
applicant under subsection 97 (1) of the IRPA, rather than by reference to the
balance of probabilities standard.
[9]
I
note that in Li
v. Canada (Minister of
Citizenship and Immigration), 2005 FCA 1, [2005] F.C.J. No. 1, the question
was essentially the reverse of the one at issue here. The Court of Appeal was
asked to ascertain the appropriate degree of risk for paragraph 97(1)(a) of the
IRPA, and held that it was a balance of probabilities, or ‘more likely than
not’. Justice Marshall Rothstein, as he then was, next determined that the
appropriate degree of risk for paragraph 97(1)(b) was also more likely than
not. While it is true that the term ‘substantial grounds’ appears in the
former provision but not the latter, the degree of risk is the same. To vacate
the member’s decision on this narrowly technical point would be to place form
above substance.
[10]
I
will deal with the second and third issues together as they appear to me to be linked.
Objective
Basis/Effect of the Change of Government:
[11]
It
was open to the member to conclude that the applicant had failed to meet his
burden to establish the objective basis of his claim that the charges remained
outstanding against him and that he would be subject to arrest upon his return
to Bangladesh. However, in
my view the member erred in speculating that should the charges remain in
effect, the police would not pursue them because of the change in government.
[12]
The
applicant submits that the RPD member was required to assess the impact of any changes
in the country’s circumstances on his particular situation: Boateng v. Canada (Minister of Employment
and Immigration),
(1993), 64 F.T.R. 197, [1993] F.C.J. No. 479. The mere fact that the ruling
party has changed is not sufficient, in itself, to provide a meaningful,
durable and effective situation such that the applicant’s risk of persecution
is less likely than not.
[13]
The
respondent correctly submits that the question of whether the change was
durable, meaningful or effective does not amount to a legal standard: Yusuf
v. Canada (Minister of Employment
and Immigration),
(1995), 179 N.R. 11, [1995] F.C.J. No. 35 (F.C.A.). The issue remains a
question of fact. A change in the political situation in a claimant's country
of origin is only relevant if it may help in determining whether or not there
is, at the date of the hearing, a reasonable and objectively foreseeable
possibility that the claimant will be persecuted in the event of return.
[14]
When
coming to that decision, the RPD member must, however, have a view as to the
stability and probability of continuation of the change in country conditions
which resulted in the finding of a lack of risk. To do otherwise would put into
harm’s way those who flee the persecution of one side of an ongoing dispute. While
the period in which their group is in the ascendance might be safe, the
fragility of that safety is one issue which the RPD must consider in coming to
their decisions. It does not appear from the decision that the member in the
instant case directed her mind to that question.
[15]
At
the time of the hearing, the stability of the coalition government headed by
the BNP was questionable and it was faced with a requirement for mandatory
elections in the year following the decision. The political history of Bangladesh since independence
indicates that its governments are not long-lasting and that power has passed
back and forth between the two main competing parties with the periodic
intervention of the army. The member should have considered what the impact
would be upon Mr. Chowdhury if that pattern repeated itself within the
foreseeable future.
[16]
While the evidence indicates that
the higher levels of the court structure in Bangladesh are independent and free from corruption, the
same is not true of the entire judicial system. Moreover, there are enormous
backlogs in the trial process and prolonged periods of detention on remand
before trial are common. Should the charges against Mr. Chowdhury remain
outstanding and should he be arrested upon his return, he stands a reasonable
prospect of being jailed indefinitely pending trial.
[17]
For
these reasons, I will allow the application. Neither party proposed a question
of general importance for certification, and, on the facts of this case, none
arises.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the
application is granted and the matter is remitted for reconsideration by a
differently constituted panel. No questions of general importance are
certified.
“Richard
G. Mosley”
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