Docket:
IMM-6246-13
Citation:
2015 FC 226
Toronto, Ontario, February 20, 2015
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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AHAD ISLAM; MISHEL AKTHER; ZARA ISLAM; SHAAN ISLAM
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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
I.
Introduction
[1]
This is a judicial review [JR] of a decision of
the Refugee Protection Division [RPD, Board] of the Immigration and Refugee
Board [IRB] pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA] pertaining to the Islam family,
consisting of the primary claimant, Ahad Islam [PC], his spouse, and their two
children [collectively, the Applicants].
[2]
At the RPD hearing on July 30, 2013 [Hearing],
the Applicants presented claims of persecution and prospective torture or risk
based on an affiliation with the Ahmadiyya or Kadiani religion [Ahmadiyya], a
minority Islamic sect in Bangladesh. In its decision of August 21, 2013
[Decision], the RPD refused the Applicants’ refugee protection claim as failing
to satisfy sections 96 and 97(1) of IRPA.
[3]
The RPD rejected the claim based on unproven
identity and credibility. For the reasons that follow, I find the Decision
unreasonable. In light of overlooked and misapprehended evidence, the matter
will be remitted to the RPD for reconsideration.
II.
Background
[4]
The Board refused the claim on the basis of
identity, and did not comment on the substance of the alleged fear of
persecution. The context of the claim is nonetheless useful in situating this
case, as based on the following facts asserted by the Applicants.
[5]
The PC was born in March, 1963, and his spouse
in February, 1973, both in Brahmanbaria, Bangladesh. Their children were born
in 1997 and 2001, respectively. The record contains four Bangladeshi birth
certificates [BCs] confirming the birthdates provided.
[6]
In December 2009, the family started practising
the Ahmadiyya faith. The PC states that in March 2010 he was approached by
followers of Jamaat-i-Islami [JI group], who belong to the Sunni majority. The
PC alleges that the JI group demanded money from him, so he reported this
incident to law enforcement; however, the police were Sunni and refused to act
on the information. As a result, the PC paid the JI group from June 2010 to
November 2010.
[7]
By December 2010, the PC was unable to make
further payment. The Applicants claim that the JI group attended the
Applicants’ home and threatened to kidnap their eldest child if payment was not
provided by Monday, December 20, 2010. On Saturday, December 18, 2010, the
Applicants fled to a relative’s home in Tanker Par, Bangladesh. The family then
moved to Dhaka, where the PC obtained employment as a Project Coordinator at
Angan Housing Limited. The record includes an identification card [Work ID]
bearing the PC’s photo, name, work title, birth date, blood group type and
signature, as well as a letter from the Managing Director confirming his
employment from January 1, 2011 to October 31, 2011 [Work Letter]. The Work
Letter reports that the PC was a good employee but lost his job on October 31,
2011 because of religious tensions.
[8]
During that time period, the Applicants state
their children attended Holy Flower Model College in Dhaka. The evidentiary
record contains two letters from the school’s principal, confirming the
childrens’ names, birth dates, grades, and attendance from January 1 to
November 2, 2011 [School Letters]. The record also provides two school
identification cards [School IDs] bearing the childrens’ photos, names, class information,
parental information, home address and phone number, school contact and the
principal’s signature, which is markedly similar to the signature on the School
Letters.
[9]
The PC alleges that in Dhaka, the JI group again
attempted to extort money. The PC was assaulted, and the Applicants’ home was
ransacked. On October 28, 2011, the PC attempted to file a police report. As in
Barhamanbaria, the Dhaka police were Sunni and refused to help. The family thereafter
paid twenty lakh Taka (approximately $29,000 CAD) to a refugee smuggler who
aided in their travel to Toronto, where they requested Refugee protection on
November 15, 2011 [Entry Date].
[10]
The Applicants appear to have continued their
involvement with the Ahmadiyya religion in Canada. The record contains eleven
Ahmadiyya donation receipts, dated May 3, 2013 to July 19, 2013, all bearing
the PC’s name; a letter from the Vice-President of Ahmadiyya Canada confirming
each family member’s name and birth date; and four Ahmadiyya Canada
identification cards [collectively, Canadian Ahmadiyya Documents].
III.
Decision Under
Review
[11]
The RPD found the determinative issue to be
identity, including credibility surrounding this issue. In concluding that the
Applicants had failed to establish Bangladeshi citizenship, the RPD considered
Rule 11 of the Refugee Protection Division Rules, SOR/2012-256 [RPD
Rules], which states:
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11. The claimant must provide acceptable documents establishing
their identity and other elements of the claim. A claimant who does not
provide acceptable documents must explain why they did not provide the
documents and what steps they took to obtain them.
[emphasis added]
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11. Le demandeur d’asile transmet des documents acceptables qui
permettent d’établir son identité et les autres éléments de sa demande
d’asile. S’il ne peut le faire, il en donne la raison et indique quelles
mesures il a prises pour se procurer de tels documents.
[soulignement
ajouté]
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[12]
The RPD found it problematic that the Applicants
had not tendered additional identity documents between the Entry Date and the
Hearing. The RPD found that the Applicants’ Bengali language is widely spoken
in other jurisdictions, and the mere fact they speak Bengali does not prove
identity. Upon examination of the BCs, the RPD noted discrepancies, and
concluded the adults’ BCs were fraudulent. In making this determination, the
RPD referenced an IRB report dated September 20, 2010 [IRB Paper], articulating
the prevalence of fraudulent documents in Bangladesh (Certified Tribunal Record
[CTR], pp. 170-174).
[13]
On the basis of these identity findings, the RPD
drew a negative inference on the overall credibility of the Applicants, and
rejected the claim without consideration of their alleged persecution and fear.
In other words, the RPD dismissed all the family members’ claims without
consideration on their merits.
[14]
Specifically, the Board described the BCs as the
only primary documents before the RPD. The Board found discrepancies in the
adults’ BCs, both relating to issues on their face (e.g. spelling errors,
sequential registration numbers, different addresses, approval by a sanitation
worker rather than a more competent authority) and surrounding circumstances
(e.g. issuance despite lack of supporting documentation, receipt only three
weeks prior to Entry Date, IRB Paper finding that fraudulent documentation is
prevalent in Bangladesh).
IV.
Issue
[15]
The determinative issue in this case is whether
the Board came to a reasonable conclusion with respect to the identities of the
Applicants.
V.
Relevant
Legislation
[16]
Section 106 of IRPA states:
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106. The Refugee Protection Division must take into account, with
respect to the credibility of a claimant, whether the claimant possesses acceptable
documentation establishing identity, and if not, whether they have
provided a reasonable explanation for the lack of documentation or have taken
reasonable steps to obtain the documentation.
[emphasis added]
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106. La Section de la protection des réfugiés prend en compte,
s’agissant de crédibilité, le fait que, n’étant pas muni de papiers d’identité
acceptables, le demandeur ne peut raisonnablement en justifier la raison
et n’a pas pris les mesures voulues pour s’en procurer.
[soulignement
ajouté]
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VI.
Standard of Review
[17]
In the case at bar, the applicable standard of
review is reasonableness (Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at paras 52-54, 58 [Khosa]; Wang v Canada (Minister of Citizenship & Immigration), 2011 FC 969 at para 22).
VII.
Parties’ Positions
[18]
The Applicants contend the RPD erred by failing
to consider the authenticity of the childrens’ BCs before rejecting the claim
based solely on the inauthenticity of the adults’ BCs. They also dispute the
basis upon which the Board arrived at its findings regarding the adult BCs.
[19]
In reply, the Respondent relies on Noha v Canada (Minister of Citizenship and Immigration), 2009 FC 683, to argue that severely
damaged credibility in relation to a false document may result in overall
credibility damage. The Respondent also relies on Diarra v Canada
(Minister of Citizenship and Immigration), 2014 FC 123 [Diarra] to
submit that it was reasonable for the RPD to make a general negative
credibility finding after deeming the adults’ BCs fraudulent. Accordingly, the
Respondent asks this Court to find that the Decision falls within the range of
possible and acceptable outcomes.
VIII. Analysis
[20]
For the reasons that follow, I agree with the
Applicants, and find the Decision to be unreasonable.
A.
Overlooked Identity Evidence
[21]
The Decision failed to address various key
Bangladeshi identity documents presented by the Applicants, including the
children’s BCs, School Letters, School IDs, and the PC’s Work Letter and Work
ID [collectively, Other Identity Documents].
[22]
Rule 11 of the RPD Rules and Section 106 of
IRPA, read together, require claimants to provide “acceptable documents” in support of their claims. At
the Hearing, counsel indicated that the Bangladeshi
identity documents included school documentation (CTR, p. 238). As the
IRB Paper states, “Information from schools (on the
students) are a more reliable way to confirm identity as the students parents
names are generally included in this information.” (CTR, p. 171)
[23]
At the Hearing, the PC introduced and testified
to the authenticity of the Other Identity Documents and the Canadian Ahmadiyya
Documents (See CTR, pp. 237-245, 249-252, 255-256). These documents, however,
were not substantively addressed in the Decision. A question thus arises as to
what, if any, consideration the Board gave to these documents.
[24]
The Respondent aptly observes that the task of
this Court is not to reweigh the evidence. The Respondent cites case law,
including Diarra, to suggest the Other Identity Documents and the
Canadian Ahmadiyya Documents should be deemed secondary or tertiary identity
documents. While the classification of a document as being primary or secondary
in nature may assist the Board in the determination of the weight to be given
to it, excessive reliance should not be placed such a classification. The
purpose of assessing the identification documents is to establish the
Applicants’ identity. In this assessment, the RPD must independently consider
all of the submitted documents, in light of the objective evidence put before
it (Kabongo v Canada (Citizenship and Immigration), 2013 FC 1086 at para
21).
[25]
The Respondent uses Diarra as support for
its submission that it was reasonable for the Board not to refer specifically
to other documents after finding the adults’ BCs fraudulent. As Justice Shore stated:
[22] This
Court has found on numerous occasions that the issue of identity is at the very
core of the RPD’s expertise; thus, the Court needs to caution itself not to
simply second-guess the RPD. As stated by Justice Mary Gleason in Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319:
[48] …In my view, provided that
there is some evidence to support the Board’s identity-related conclusions,
provided the RPD offers some reasons for its conclusions (that are not clearly
specious) and provided there is no glaring inconsistency between the Board’s
decision and the weight of the evidence in the record, the RPD’s determination
on identity warrants deference and will fall within the purview of a reasonable
decision. In other words, if these factors pertain, the determination cannot be
said to have been made in a perverse or capricious manner or without regard to
the evidence.
…
[28] Lastly,
in respect to the Applicant’s school certificate and his mother’s death
certificate, the Court does not agree with the Applicant that the RPD ignored
these documents.
[29] In its
reasons, the RPD expressly stated that the school certificate was a tertiary
document that could not reliably be linked to the Applicant (at para 12). It
lacked features linking it to the Applicant and did not authenticate his
nationality by any means.
[emphasis in
original of Diarra]
[26]
The facts in this case differ from Diarra,
because independent country evidence (the IRB Paper) states that school
information from Bangladesh provides a reliable means of identity confirmation
(CTR, p. 171). While the RPD in Diarra expressly referred to the
contentious identity documents in its decision, in this case, no reference was
made to various key identity documents: although the Board referred briefly to
the children’s BCs, it did not consider them in any meaningful way.
[27]
I find these facts to bear a greater similarity
to those described in Kabongo. In that case, the RPD had also rejected
the claim on the basis of identity and credibility. Justice de Montigny found that while the RPD had deemed some of the Applicant’s
identity documents fraudulent, namely a birth certificate, university
transcript and letter, and arrest warrant, the Board had made no authenticity findings regarding other
secondary identification - namely a voter card and driver’s licence. The
Court granted the application on the basis that both documents pointed to
identity legitimacy.
[28]
Likewise, in similarity to Justice de Montigny’s
finding of overlooked identity documentation, in this case, the children’s
school documents were presented to the Board – documents which according to the
country documentary evidence are reliable identity documents in Bangladesh. These school IDs and school letters, which included parental information that
appeared to be consistent with their identity documents, were not mentioned or
given any weight in the Decision. It is trite law that the more relevant the
evidence, the more important it is for the decision maker to address it in its
reasons, especially if it directly contradicts the Board’s findings (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at para
17). As Justice Evans held:
[17] …the agency’s burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency's finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it may
be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
See also Ozdemir v Canada (Minister of Citizenship & Immigration),
2001 FCA 331 at para 9.
[29]
Accordingly, this Court finds the Board erred in
this case in failing to address in its decision relevant and seemingly key
credible identity documentation. Such a defect renders the Decision
unreasonable, and the case should be remitted to a differently constituted
panel of the Board for re-determination.
B.
Other issues raised by the Applicant
[30]
While the error above is dispositive of the
case, there were certainly other troubling elements of the decision, including:
i.
the Board’s finding that the PC should have
obtained Bangladeshi identity documentation from diplomatic officials in Canada. Even if this was possible, it remains to be determined whether it is reasonable to
request such an action from someone claiming refuge from that country;
ii.
the Board made negative findings with respect to
the authenticity of the BCs, based on the fact that: they were issued within a
month of the family leaving Bangladesh; the childrens’ were issued in different
places; the parents’ had sequential registration numbers; and, signatories of
the adult BCs were suspect. However, the record reveals that there may have
been plausible explanations to each of these “credibility”
findings; and
iii.
the Board member’s response to the offer from
Applicant’s counsel to have the identity documents sent for expert
verification, to which he responded that said verification would delay the
proceedings, and his role (at the RPD) would be reassigned before the
verification came back.
[31]
While I find each of these three elements of the
decision problematic, all of which were raised by Applicant’s counsel, there is
no need to rule on them given my conclusion on the first issue, which warrants
reconsideration by the Board. No questions for certification were raised by
the parties.
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