Docket: IMM-1585-14
Citation:
2014 FC 1118
Ottawa, Ontario, November 24, 2014
PRESENT: The
Honourable Mr. Justice Shore
|
BETWEEN:
|
|
BARUA BABLA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[…] The recognition and acknowledgement of the
details of an individual or individuals' background, especially in an
immigration or refugee case, are essential. The circumstances, situations and
events within a narrative must not be overlooked, otherwise, a travesty to
justice could be the consequence. For jurisprudence to be valid, the narrative
must be the prime source from which legal analysis begins and ends, or else, it
is a theoretical, abstract exercise divorced from reality. Each individual
before the law must be acknowledged for his or her narrative, otherwise, the
very integrity of a legal system is in jeopardy.
(Junusmin v Canada (Minister of Citizenship
and Immigration), 2009 FC 673 at para 1).
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a decision of the Refugee Protection Division [RPD]
dated December 29, 2013, wherein it was determined that the Applicant is not
a Convention refugee nor a person of need of protection according to sections
96 and 97 of the IRPA.
II.
Background
[2]
The Applicant is a 37-year old Bangladeshi of
the Buddhist faith, a minority religious group in Bangladesh. In his Personal
Information Form, dated October 24, 2012, the Applicant alleges that
he is a prominent and active member of the Buddhist community. In 2010 and
2011, the Applicant became General Secretary of the Prajnabangsha Bidarshan
Babna Centre, as well as Publicity Secretary of the Bauddha Triratna Maitry
Sangha, in Boalkhali, Chittagong. He claims that he is targeted by Muslim
fundamentalist groups and political parties, based on his religion and for his
involvement in the Buddhist community.
[3]
The Applicant claims to have been, on several
occasions, the victim of targeted attacks by members of the Awami League, both
at his domicile and at the Buddhist temple he attends, in addition to having
been targeted through intimidation, death threats, looting, and extortion at
his store. The Applicant claims that the police have been either irresponsive
or of little assistance to his complains.
[4]
As a result, the Applicant fled to Dhaka and his wife fled to her parents’ home. With the help of an agent, the Applicant fled
Bangladesh on August 24, 2012 and entered Canada that same day. The
Applicant claimed refugee protection on September 30, 2012. The Applicant
claims that after his arrival in Canada, on September 29, 2012, nineteen
Buddhist temples and one hundred and fifty family homes were burnt down and
looted over the course of three days in Bangladesh.
III.
Decision
[5]
In the impugned decision, the RPD finds that the
Applicant failed both to establish a serious possibility of persecution or that
he would personally be subjected to a danger of torture or face a risk to life
or a risk of cruel and unusual treatment or punishment upon return to
Bangladesh.
[6]
The RPD states that “in
the absence of corroborating evidence that is objective and probative”,
the claimant is “not a credible as a witness and is not credible
in his personal statements” and that the claimant “has
not provided sufficient evidence that he was the subject of serious
discrimination or attacks in Bangladesh for being Buddhist or for his
activities there” (RPD’s decision, at para 30).
[7]
Furthermore, the RPD finds that the Applicant
has not refuted the presumption of state protection (RPD’s decision, at paras
36-41).
IV.
Issues
[8]
The issues on which this application turns are
the following:
a)
Do the circumstances justify a granting of an
extension of time?
b)
Did the RPD err in rejecting the Applicant’s
claim based on a lack of credibility and lack of state protection?
V.
Analysis
A.
Applicant’s request for an extension of time to
file the notice of application
[9]
The Applicant argues that the basis of his
request for an extension of time before the Court is his former immigration
consultant’s failure to properly advise him regarding his recourses; however,
when the Applicant learned of his former counsel’s error, he promptly hired new
counsel and file the application to the Court on March 13, 2014.
[10]
The Court finds that the Applicant demonstrated
the required continuing intention to pursue an application and deems his
explanations for the delay to be reasonable (Canada (Attorney General) v
Hennelly, [1995] FCJ 1183 (CAF) at para 3). In consideration of Muhammed
v Canada (Minister of Citizenship and Immigration), 2003 FC 828 and Mathon
v Canada (Minister of Employment and Immigration), [1988] FCJ 707, the
Applicant has acted diligently. Furthermore, no prejudice to the Respondent
seems to arise from the delay. Therefore, the Court exercises its judicial
discretion in allowing the requested extension of time.
B.
The RPD’s findings of lack of credibility and
adequate state protection
[11]
The Applicant supports the view that the RPD
erred in its assessment of the Applicant’s credibility and failed to adequately
consider the documentary evidence demonstrating the lack of state protection
for Buddhist minorities in Bangladesh.
[12]
In support of his claim, the Applicant submitted
before the RPD two original sealed letters from Buddhist organizations in
Boalkhali, Chittagong. The first letter, dated December 18, 2012,
originates from the President of the Bauddha Triratna Maitry Sangha, Mr.
Prashanta Barua. The letter testifies that the Applicant is targeted by various
political parties, and that he has been the victim of targeted attacks, which
forced the Applicant to leave Bangladesh, out of fear for his life (Tribunal record,
at p 71).
[13]
The second letter, dated November 28, 2012,
originates from the President of the Prajnabangsha Vipassana Meditation Centre,
Mr. Prajnananda Mohasthabir. In this letter, it is stated that the Applicant
has been the victim of humiliation, threats and harassment at various times by
Awami League, BNP, Jamaati Islami and Muslim fundamentalist members. The letter
also recounts the attacks during the religious gathering of July 5, 2012,
during which a group of Islamic fundamentalists entered the temple, attacked
the crowd, vandalized and looted the temple. The letter further notes that the
Applicant had been injured, among others, from this attack. Furthermore, the
letter corroborates the attacks and death threats perpetrated against the
Applicant at his home on July 12, 2012. The letter further indicates that
on September 30, 2012, the perpetrators entered the Prajnabangsha
Vipassana Meditation Centre in search of the Applicant. Failing to find him,
they set fire to the Centre and broke the furniture, fixtures and ancient
Buddhist statues. Finally, the letter states that the government and police do
not play an effective role in providing for the security of minorities
(Tribunal record, at p 73).
[14]
The RPD committed an error in failing to
consider the evidentiary value of the two letters supporting the Applicant’s
claim. The letters directly corroborate determinative elements forming the
basis of the Applicant’s subjective and objective fear of persecution. The
RPD, which had relied on fax-transmitted copies of the letters instead of the
originals, rejected both letters based on a finding that they lacked contact
details (RPD’s decision, at paras 33 and 34), although this information was
found at the bottom of the original letters.
[15]
The Court notes that the Applicant’s leadership
in the Buddhist community, to which the two letters filed in support of his
claim testify, should have been canvassed by the RPD, as it is this very level
of involvement by the Applicant in his community which puts him at risk. In its
decision, the RPD was nonetheless satisfied that the Applicant’s Buddhist
family members “are not persecuted or treated in a way to
be considered serious discrimination in Bangladesh” (RPD’s decision, at
para 31). This further supports the Applicant’s allegations of a well-founded
fear of persecution by way of his particular religious and social status in the
Buddhist community.
[16]
The documentary evidence relied upon by the
Board offered evidence of continuing violence against Buddhist minorities in Southern Bangladesh and demonstrates that the state’s failure to protect religious
minorities, outweighing the observations that the Bangladeshi government has
been critical of the attacks, and at times responsive in arresting individuals
linked to attacks perpetrated against these minority groups.
[17]
The violence targeting Buddhist minorities in
Southern Bangladesh has also been reported in the U.S. Country Reports on
Human Rights Practices for 2012:
On September 29 and 30, communal attacks
occurred against more than 100 Buddhist homes, temples, and monasteries in the
Cox’s Bazar district. The prime minister and home minister strongly condemned
the violence and pledged to find the perpetrators. By October 11, police
had arrested 284 persons in connection with the violence. On November 8,
the MHA released the report of its official investigative body on the attacks,
which stated that the violence was planned at least 10 days in advance,
implicated 205 persons, and cited local law enforcement’s failure to act
promptly and swiftly. The report blamed then superintendent of police of Cox’s
Bazar Selim Md Jahangir and then officer in charge of the Ramu police station
AK Nazibul Islam for failing to take appropriate measures and for neglecting
their official duties. Both officers were withdrawn from their duty stations
and assigned elsewhere.
[18]
Furthermore, the U.S. International Religious
Freedom Annual Report 2012 – Bangladesh – supports the finding that
religious minorities in Bangladesh who are victims of discrimination have
little political recourse:
There were reports of societal abuses and
discrimination based on religious affiliation, belief or practice. There were
scattered attacks on members of minority religious and ethnic groups, most
notably against Buddhists in Ramu in September and October. Most attacks
consisted of arson and looting of religious sites and homes. Because many
members of minority religious groups also had low economic and social status,
they were often seen as having little political recourse. Members of Hindu,
Christian, Buddhist, and Ahmadiyya Muslim minority groups experience harassment
and sometimes violence from the Sunni Muslim majority population. The
government and many civil society leaders stated that violence against members
of minority religious groups normally had political or economic dimensions, and
could not be attributed solely to religious belief or affiliation.
[…]
Societal groups at times incited violence
against or harassment of members of minority religious groups. The most common
type of abuse was arson and looting of religious sites and homes.
[…]
Buddhists in Ramu, Cox’s Bazar, and neighboring
cities experiences communal violence on September 29 and 30. After rumors
spread that a local Buddhist youth posted anti-Islamic photos on Facebook,
thousands of protesters burned and vandalized Buddhist homes and temples. Local
police called in supplementary security forces to quell the violence, but
attackers had already set fire to at least 15 Buddhist temples and 100 homes.
The Home Ministry increased law enforcement presence around neighboring Buddhist
sites. Violence spread in the following days to Patiya, Chittagong, where two
Buddhist monasteries and one Hindu temple were burned, and to Ukhia and Teknaf
Cox’s Bazar, where two monasteries and five homes were burned. The prime
minister, home minister, and foreign minister all immediately issued strong
statements condemning the violence and reaffirming the tolerant, secular,
multi-religious nature of the country. The prime minister travelled to Ramu to
convey the extent of her concern.
(Applicant’s record, at pp 35 and 37).
[19]
As stated clearly by Justice Luc Martineau in Mohacsi
v Canada (Minister of Citizenship and Immigration) 2003 FCT 429:
[56] […] The existence of anti-discrimination
provisions in itself is not proof that state protection is available in
practice: "Ability of a state to protect must be seen to comprehend not
only the existence of an effective legislative and procedural framework but the
capacity and the will to effectively implement that framework" (Elcock
v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 116
at 121). […] Unfortunately, there are still doubts concerning the effectiveness
of the means taken by the government to reach this goal. Therefore, a
"reality check" with the claimants' own experiences appears necessary
in all cases.
VI.
Conclusion
[20]
In light of the above reasons, the matter is to
be returned to the RPD to be heard anew by a differently constituted panel.
Email this Content