Docket: IMM-3873-13
Citation:
2014 FC 1210
Ottawa, Ontario, December 12, 2014
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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SHAMIN CHOWDHURY
MISHU CHOWDHURY
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Shamin Chowdhury and his wife, Mishu Chowdhury
(the Applicants), are both citizens of Bangladesh. They seek judicial review
of a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the RPD) dated May 14, 2013 which found that they were neither Convention
refugees nor persons in need of protection within the meaning of sections 96
and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the
Act).
[2]
For the reasons that follow, the application is
dismissed.
I.
Background
A.
The Applicants’ Alleged Fear
[3]
Shamin Chowdhury was born in the city of Dhaka (Bangladesh)
where he became a grassroots leader of the youth and student wings of the
Bangladesh Nationalist Party (BNP). He and his wife fear persecution as a
result of three incidents related to his political activities.
[4]
Mr. Chowdhury claims the first incident occurred
in December 2008, while campaigning for his local BNP candidate, Goyeshwar
Chandra Roy, to the general election. He says that he was approached by supporters
of the rival Awami League Party (ALP) and was directed by their leader, Aminul
Hoq Jewel (Jewel), to stop campaigning for Mr. Roy. Mr. Chowdhury claims that
when he indicated he would not stop campaigning for his candidate Jewel verbally
threatened him and pushed him to the ground. Mr. Chowdhury then attended a
local police station to report the incident however the police refused to
register the case because there were no visible signs of physical injury. The ALP
won the general election and Mr. Chowdhury’s candidate was defeated. Fearing retaliation
by ALP supporters, Mr. Chowdhury moved out of his house.
[5]
Nearly two years later, on November 30, 2010, Mr.
Chowdhury crossed paths with Jewel at a nationwide protest organised by the BNP.
Upon this encounter, Jewel told Mr. Chowdhury that he would be punished if he
was found participating in future anti-government activities.
[6]
The third alleged incident occurred on June 5,
2011 in the context of a mass protest held in Dhaka by the BNP where Mr.
Chowdhury organized and lead a group of approximately 300 participants towards
the BNP head office in Dhaka. On his way home from this event, Mr. Chowdhury was
once again confronted by Jewel and some ALP associates and was told that he
would now face the consequences of his decision to ignore earlier warnings.
[7]
Following this third encounter Mr. Chowdhury
left for a relative’s home in Dhaka where he received a call from his father who
told him that Jewel had visited the family home and told him that Mr. Chowdhury
would be unable to hide anywhere in Bangladesh. Consequently, Mr. Chowdhury fled
to nearby Gazipur, which is located on the outskirts of Dhaka.
[8]
In the days following the June 5, 2011 incident Mr.
Chowdhury was contacted by his wife and his father to inform him that the
police had also visited their residence, on two separate occasions. On the
second occasion the police indicated that, although there were no pending
warrants or charges, they needed to question Mr. Chowdhury.
[9]
Mr. Chowdhury then decided to leave Gazipur for
the remote village of Madarkathi (in Barisal). While in Madarkathi he received
word from home that the Rapid Action Battalion (the RAB), an elite anti-crime
and anti-terrorism unit of the Bangladesh police, had attended his family
residence searching for him. Mr. Chowdhury’s wife then joined him in
Madarkathi and they decided to leave Bangladesh in search of external refuge
and protection.
[10]
They left Bangladesh for Canada on August 15,
2011 and filed for refugee protection upon arrival claiming fear that, if they
were to return to Bangladesh, they would be attacked and killed by supporters of
the ruling ALP or arrested and killed by the police or the RAB on false
charges.
B.
The Decision Under Review
[11]
The Applicants’ refugee claim was dismissed by
the RPD on May 15, 2013 on the grounds that the Applicants had not established
a well-founded fear of persecution and that, in any event, an Internal Flight Alternative
(IFA) was available to them.
(1)
The RPD’s Findings on Alleged Fear
[12]
The RPD first found that the Applicants’ fear of
being attacked and killed by Jewel and his ALP associates was not
well-founded. In particular, it found that the Applicants had failed to
provide any explanation as to why the threats made during the June 2011 incident
were any more serious that the threats of the two previous incidents. The RPD
was not persuaded, due to the insufficiency of the evidence, that the
Applicants would be killed or harmed by these people despite Jewel’s alleged
reputation for having committed a number of murders.
[13]
With respect to the Applicants’ fear that they
would be arrested by the police or the RAB, the RPD was not persuaded, given
Mr. Chowdhury’s relatively minor local involvement in the overall activities of
the NBP and his low level profile within that party, that either the police or
the RAB were interested, or would continue to be interested, in him or his
wife. The RPD found that this allegation lacked both credibility and
sufficient reliable corroborative evidence and, in this respect discarded a letter
from Mr. Chowdhury’s father as being self-serving. Relying on country
condition information, the RPD noted that Bangladeshi citizens were not
prosecuted solely for political reasons.
[14]
The RPD further noted that :
a.
When asked why the Bangladeshi’s authorities
would be interested in him, given his position within the BNP, Mr. Chowdhury
replied that he did not know but that ordinary people were killed without
reason in Bangladesh, a response which, according to the RPD, was indicative of
a generalized risk situation rather than suggestive of persecution;
b.
While Ms. Chowdhury’s wife feared for her life
because of her husband’s involvement in politics, although she was not herself involved
in politics, Mr. Chowdhury’s father and brother had encountered no problems
because of this involvement; and
c.
Although Mr. Roy wrote that government
authorities were torturing his party’s leaders and were killing the party’s
leaders and workers indiscriminately, he, himself, did not appear to have
experienced any significant problems due to his political activities.
(2)
The RPD’s IFA Finding
[15]
The RPD found that since Mr. Chowdhury had not
experienced problems outside his home area, he and his wife had a viable IFA in
Chittagong. It was not persuaded by Mr. Chowdhury’s assertion that he would
nevertheless face a risk to his life if he relocated to that city because his
persecutors would get him since he would involve himself in politics again.
II.
Issues and Standard of Review
[16]
The Applicants claim that the RPD committed a
reviewable error when it concluded that the Applicants had not established a
well-founded fear of persecution and that they had a viable IFA in Bangladesh.
[17]
As is well established, the RPD’s appreciation
of the evidence, including any credibility concerns as to whether a refugee
claimant has established a well-founded fear of persecution, is to be reviewed on
the standard of reasonableness (Aguebor v Canada (Minister of Employment and
Immigration), [1993] FCJ No 732 (QL) (1993), 160 N.R. 315 (FCA) at para 4; Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[18]
The same standard of review applies to RPD’s IFA
determinations (Dunsmuir, above, at para 47; Siddique v Canada
(Minister of Citizenship and Immigration), 2014 FC 992, at para 20; Gulyas
v Canada (Minister of Citizenship and Immigration), 2013 FC 254, 429 FTR 22,
at para 38).
III.
Analysis
[19]
For the reasons outlined below, the finding
regarding the possible IFA in Bangladesh is reasonable and settles the entire
judicial review application as the determination of
whether or not there is an IFA is integral to the determination of whether or
not a claimant is a Convention refugee (Rasaratnam v Canada (Minister of
Employment and Immigration), [1992] 1 FC 706 (FCA),
[1991] FCJ No 1256 (QL), at para 8).
[20]
As a result, in order to prove a claim of Convention
refugee status, claimants must prove that there is a serious possibility that
they will be subject to persecution in their country, not in some subdivision or region of that country. If the
possibility of an IFA is raised by the RPD then the claimant must demonstrate
that there is a serious possibility of persecution in the area alleged to
constitute an IFA (Thirunavukkarasu v Canada (Minister of Employment and
Immigration), [1994] 1 FC 589 (FCA), [1993] FCJ No. 1172 (QL), at para 9).
[21]
The same is true for those seeking protection
under section 97 of the Act as, according to the very wording of that provision,
persons in need of protection are persons whose removal to their country of
origin would subject them personally to a risk to their life or to a risk a
cruel and unusual treatment or punishment provided that risk would be faced by
them in every part of that country.
[22]
The notion of an IFA consists of a two-prong
test : the RPD must first be satisfied, on a balance of probabilities, that
there is no serious possibility of the refugee claimant being persecuted in the
part of the country in which it finds an IFA exists; and secondly, that the
conditions in that part of the country are such that it would not be
unreasonable for the claimant to seek refuge there (Rasaratnam, above,
at para 10; Thirunavukkarasu, above at para 12; Katinszki v
Canada (Immigration and Citizenship), 2012 FC 1326, 421 FTR 107, at para
11; Ramirez v Canada (Minister of Citizenship and Immigration), 2010 FC
600, at para 4).
[23]
I am satisfied that the RPD made an adequate
analysis of the IAF issue in this case. It considered that Mr. Chowdhury, who
was politically active only in the Dhaka area, would only be at risk in this
particular part of Bangladesh and that he could be expected to seek refuge
elsewhere in the country. It also considered that it would not be unreasonable
for him and his wife to move.
[24]
The burden was on the Applicants to establish
that it was objectively unreasonable to request that they seek refuge in Chittagong,
the safe area identified by the RPD. This burden is a significant one. It requires
proof of adverse conditions which would jeopardize the life and safety of the
Applicants in relocating in Chittagong and evidence of such conditions must be
actual and concrete (Ranganathan v Canada (Minister of Citizenship and
Immigration), [2001] 2 FC 164 (FCA), [2000] FCJ No. 2118 (QL), at para 15; Iqbal
v Canada (Minister of Citizenship and Immigration), 2014 FC 415, at para
18).
[25]
Mr. Chowdhury claims that either the ALP or the
police would get him even in Chittagong since he would not stay out of politics
if he returned to Bangladesh. The RPD noted that Mr. Chowdhury faced no
problems wile away from his home area and that his problems centred on his
political activities locally. It found that Mr. Chowdhury had therefore failed
to establish that it was objectively unreasonable to request him to seek refuge
in Chittagong. As Justice Simon Noël pointed out in Iqbal, above, the
problem with the argument Mr. Chowdhury is making on the IFA issue is that he
decided to leave the country rather than to relocate elsewhere and continue his
political activities.
[26]
This proved fatal to the refugee claimant in Iqbal,
above, and I see no reason why it should not be the same for Mr. Choudhury
whose storyline, political profile and activities are similar to that of the
claimant in Iqbal.
[27]
Mr. Choudhury contends that the RPD erred by predicating
its IFA finding on his low political profile in the absence of evidence indicating
that only persons of a particular profile face persecution in Bangladesh. Rather,
it seems to me that the RPD’s predicated its decision on the IFA issue by the
fact Mr. Chowdhury: faced no problems while away from his home area; failed to
provide sufficient evidence of adverse conditions which would jeopardize his
life, and that of his wife, in relocating to Chittagong; and did not show that
it would be objectively unreasonable to request him to seek refuge in that part
of Bangladesh.
[28]
As previously noted, the issue before me has to
do with the reasonableness of the RPD’s decision. What this means is that my
role is not to reweigh the evidence that was before the RPD and substitute my
own findings. The findings of the RPD are owed deference because determining
whether someone is a Convention refugee or a person in need of protection
within the meaning of sections 96 and 97 of the Act falls within its area of
expertise. My role is therefore limited and I can only interfere with the
RPD’s IFA finding in this case if it lacks justification, transparency and
intelligibility, and if it falls outside the range of possible, acceptable
outcomes, defensible in fact and in law (Dunsmuir, at para 47).
[29]
Based on these reasons, I find that the
Applicants have failed to show that the proposed IFA is unreasonable or that the
RPD committed an error which warrants my intervention in this regard.
[30]
My conclusion would be the same even accepting
the Applicants’ assertion that the RPD’s IFA finding was predicated on Mr.
Chowdhury’s political profile. As Mr. Chowdhury’s political implication was on
the low-end of the spectrum it would have been reasonably open to the RPD, in
my view, to find it implausible that he would be tracked down by the ALP or the
police and, as a result, face a serious possibility of being subjected to
persecution.
[31]
According to this Court’s jurisprudence, the RPD
has complete jurisdiction to determine the plausibility of testimony and in so
doing, to gauge the credibility of an account and draw the necessary
inferences. This means that it is entitled to make credibility findings based
on implausibility, common sense and rationality. As long as the inferences
drawn are not so unreasonable as to warrant the intervention of the Court, the
RPD’s findings in this regard are not open to judicial review (Aguebor,
above, at para 4; Divsalar v Canada (Minister of Citizenship and
Immigration), 2002 FCT 653, [2002] FCJ No. 875 (QL) at para 22; Dzey
v Canada (Minister of Citizenship and Immigration), 2004 FC 167, at para
19; Abdul v Canada (Minister of Citizenship and Immigration),
2003 FCT 260, [2003] FCJ No. 352 (QL), at para 15).
[32]
Dismissing the Applicants’ refugee claim on the
basis that there was an IFA available to them given Mr. Chowdhury’s low level
political profile, would have been a defensible outcome based on rationality
and common sense.
[33]
This outcome would also have been consistent
with country condition documentation indicating that those in fear of ill-treatment
by local police/rogue state agents or supporters of opposing political parties
or in fear of opposing factions within their own party, will generally be able
to relocate internally away from the area where they are at risk and that no
persons are, in any event, prosecuted solely for political reasons (Certified
Tribunal Record, at page 149-150).
[34]
No question of general importance has been
proposed by the parties. None will be certified.
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