Docket: IMM-8142-13
Citation:
2015 FC 312
Toronto, Ontario, March 11, 2015
PRESENT: The Honourable Madam Justice Simpson
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BETWEEN:
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MOHAMMAD HOSSAIN
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SAKERA AKHTER
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MAHRUS HOSSAIN TAWSIF
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MUBARRAT HOSSAIN TAJWAR
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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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ORDER AND REASONS
[1]
Mohammad Sorowar Hossain [the Principle
Applicant] his wife, Sakera Akhter, and their two minor children, [collectively
the Applicants] are citizens of Bangladesh who have applied for judicial review
of a decision dated December 3, 2013 of the Refugee Appeal Division of the
Immigration and Refugee Board [the RAD and the RAD Decision], wherein the RAD
dismissed the Applicants’ appeal and confirmed the decision of the Refugee
Protection Division [the RPD and the RPD Decision] finding that they are
neither convention refugees nor persons in need of protection. The application
is made pursuant to ss. 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the IRPA].
I.
Background
[2]
The Principle Applicant is thirty seven years
old. His claim is joined with that of his twenty seven year old wife and their
two sons who are six and three years old.
[3]
In February of 2012 the Principle Applicant
became a member of the Ghatak Dalal Nirmul Committee, [the GDNC]. It is an
organization dedicated to bringing war criminals to justice. He alleges
persecution at the hands of members of the Jamaat-e-Islami [Jamaat], the
largest Islamic political party in Bangladesh. Jamaat is committed to expelling
minorities from Bangladesh and to reunifying Bangladesh and Pakistan.
[4]
The Principle Applicant testified that, after
joining the GDNC, he began to receive threats over the phone. At the RPD
hearing he specified that the phone calls began in July or August of 2012 and
that he received between thirty or forty calls before he left for Canada.
[5]
On October 1, 2012 the Principle Applicant
applied for a Canadian work visa which was issued on November 22, 2012. His
wife and children applied for visitor visas on December 6, 2012 and they were
issued on December 24, 2012. However, in spite of the attacks described below,
they did not leave for Canada until March of 2013.
[6]
On December 25, 2012 the Principle Applicant was
attacked by three Jamaat activists he recognized. Their names were Sattar,
Abdul and Karim. They struck him with an iron rod and left him unconscious. He
was taken to a medical clinic and he filed a police report, but no
investigation was completed.
[7]
On January 10, 2013 the Principle Applicant was
attacked a second time. This time he was beaten by Sattar, another man named
Sadeek and two other individuals. Another attack by the same individuals
occurred on March 5, 2013.
[8]
In her Basis of Claim Form [BOC] the Principle Applicant’s
wife says that her rickshaw was stopped by Jamaat members on March 7, 2013. She
was told that if her husband did not stop his activities her family would be
killed [the Family Threat]. She could not identify the entire group, but
recognized one member as Sattar.
[9]
The Applicants left Bangladesh on March 16, 2013
and arrived in Canada on March 17, 2013. They submitted their claims for
Refugee Protection on April 12, 2013
II.
The RPD Decision
[10]
The RPD dismissed the Applicants’ claims after
finding that the Principle Applicant was not a credible witness. The RPD made a
number of negative credibility findings, however only the three described below
were challenged on appeal before the RAD.
[11]
First, the RPD drew a negative inference from
the fact that the Principle Applicant failed to record in his BOC the date when
the telephone threats from Jamaat began. At the hearing, the Principle Applicant
testified that his problems with Jamaat began on December 25, 2012 when he was
attacked. Only when prompted by the RPD, did he also state that he received
between thirty and forty telephone threats beginning in July or August 2012. He
explained that he omitted this information from his BOC because he thought he
only needed to report physical attacks. However, the RPD did not find this
explanation to be reasonable due to the number of calls he received [collectively
the Telephone Threats].
[12]
Second, the RPD found it implausible that the Principle
Applicant did not go to the police after receiving such a significant number of
threatening phone calls, especially when Jamaat has a reputation for being
dangerous. This failure to contact police will be referred to as the [the
Non-Reporting].
[13]
Third, another negative inference was drawn from
the Principle Applicant’s inability to recall the incident where Jamaat
approached his wife on March 7, 2013. It was not until the RPD prompted him by
pointing out that his wife mentioned another incident in her BOC that the Principle
Applicant suddenly recalled the details of the Family Threat. His explanation
was that he “forgot.”
[14]
The Applicants’ delay in departing from Bangladesh in face of the attacks also caused the RPD concern, as did an inconsistency
between the Principle Applicant’s oral testimony and his BOC regarding the
number of assailants in the attack of December 25, 2012. These findings were
not challenged before the RAD.
[15]
Although the RPD determined that the Principle Applicant
generally lacked credibility, it nevertheless considered whether the Applicants
have a viable internal flight alternative [IFA] . It concluded that it would
not be unreasonable for the Applicants to seek refuge in three cities in Bangladesh.
III.
The RAD Decision
[16]
The RAD first considered the applicable standard
of review and focused on the factors outlined in Newton v Criminal Trial
Lawyers’ Association, 2010 ABCA 399. It also considered the IRPA as a
whole, and determined that on questions of fact and mixed fact and law, the RPD
is better situated than the RAD because it has the opportunity to see and
question a claimant. It noted that the failure to defer to the RPD in these
circumstances would be singularly inefficient, undermine the integrity of the
RPD process and increase the length and cost of the RAD appeals. For these
reasons the RAD concluded that the reasonableness standard of review applied to
the Applicants’ appeals, and that the RAD was required to show deference to the
RPD’s factual and credibility findings.
[17]
Dealing with the merits, the RAD considered the
RPD’s conclusion that it was unreasonable that the claimant did not record in
his BOC when the Telephone Threats began. It noted that the instructions in
question 2(a) of the BOC clearly direct the claimant to “include everything that is important for your claim, include
dates, names and places wherever possible.” However, in this section of
the BOC the Applicant made no mention of the Telephone Threats. He only
mentioned them in response to question 2(b) which asks about the harm feared
upon return to a claimant’s country. In his answer to question 2(b) he simply referenced
the threats. He did not give dates and did not describe the number of Telephone
Threats he received.
[18]
The RAD found it difficult to understand why the
Applicant did not specifically refer to the thirty or forty phone calls he
received over the period of less than half a year, and why he made no mention
of this information in response to question 2(a). The RAD concluded that it was
reasonable for the RPD to have made a negative credibility finding based on
this omission.
[19]
However, the RAD decided that the RPD’s
conclusion about the Non-Reporting was unreasonable due to evidence the RAD
reviewed about police corruption. In reaching this conclusion it noted that implausibility
findings should only be made in the clearest of cases and referred to the case
of Valtchev v Canada (MCI), 2001 FCT 776.
[20]
Finally, the RAD considered the RPD’s rejection
of the Principle Applicant’s explanation for why he failed to recall the
details of the Family Threat. The RAD did not accept that the Applicants’
submission that the RPD’s finding on this topic was based on a trivial and
microscopic examination of the evidence. In the RAD’s view it was reasonable to
expect the Principle Applicant to recall this incident without prompting.
[21]
Despite finding that the RPD’s conclusion about
the Non-Reporting was unreasonable, the RAD concluded that, as a whole, the
RPD’s Decision was reasonable. In support of this conclusion the RAD noted that
the Applicants’ did not challenge the RPD’s other credibility findings,
including the one based on the Applicant’s delay in leaving Bangladesh.
[22]
Lastly, the RAD found it unnecessary to consider
the Applicants’ appeal dealing with the IFA.
IV.
Issues
[23]
The following issues will be examined:
1.
What standard of review should this Court apply
to the RAD’s conclusion about the standard of review it applied to the RPD Decision?
2.
Was the RAD correct when it selected
reasonableness as the standard of review it applied to the RPD decision?
3.
Did the RAD actually apply the reasonableness
standard of review?
4.
Did the RAD err in confirming the RPD’s Decision
given that it overturned the RPD’s finding about the Non-Reporting?
5.
Did the RAD err in upholding the RPD’s findings
about the Telephone Threats and the Family Threat?
V.
Discussion
A.
Issue1: What Standard of Review Should This Court
Apply to the RAD’s Conclusion About the Standard of Review It Applied to the
RPD Decision?
[24]
In Huruglica v Canada (MCI), 2014 FC 799,
at paras 26 and 30, Mr. Justice Phelan concluded that this Court should apply
the correctness standard when reviewing the RAD’s selection of the standard of
review that applies to its review of an RPD Decision. He reached this
conclusion after determining that this issue is a matter of law “of general interest to the legal system” that goes well
beyond the scope of the RAD’s expertise, even though it depends on the
interpretation of [the IRPA], the RAD’s home statute.
[25]
In Bahta v Canada (MCI), 2014 FC 1245 I
followed Justice Phelan’s position on this issue and the conclusions reached
therein remain my view.
[26]
The Respondent argues that the reasonableness
standard of review should apply. It relies on the Supreme Court of Canada
decision in Canadian Artists’ Representation v National Gallery of Canada,
2014 SCC 42, wherein Justice Rothstein confirmed at para 13 that “reasonableness is the presumptive standard of review when a
tribunal is interpreting its home statute or a statute closely connected to its
function and with which it will have particular familiarity”. However,
in my view, this case does not apply. The RAD has no familiarity with the relevant
provisions, because they and the RAD itself are entirely new.
B.
Issue 2: Was the RAD Correct When it Selected
Reasonableness as the Standard of Review it Applied to the RPD Decision?
[27]
In Bahta I set out my conclusion on this
issue at paragraph 15:
[15] The hybrid model for the RAD described by
Mr. Justice Phelan in
Huruglica at paragraph 54 appears to me to meet the
requirement for a “full fact-based appeal”.
The RAD appeal is hybrid in the sense that the evidence may be of two types.
There is evidence the RAD may decide to receive which was not before the Board.
It is given a first and fresh assessment. At the same time, the evidence in the
record which was before the Board is reconsidered by the RAD. In each case, the
RAD makes its own independent assessment of the evidence.
[28]
I also concluded at paragraph 16 of Bahta
that the RAD owes no deference to the RPD on questions of fact for the
following three reasons:
i.
both the Board and the RAD are expert bodies;
and
ii.
there is an appeal as of right on questions of
fact; and
iii.
the Minister’s statement shows that Parliament
intended there to be a “full fact-based appeal”.
[29]
It is my view that, in the present case, the RAD
erred when it stated that it selected reasonableness as the standard of review.
C.
Issue 3: Did the RAD Actually Apply the
Reasonableness Standard of Review?
[30]
In my view, not withstanding its prolific use of
language associated with reasonableness, the RAD actually undertook the
required independent assessment of the RPD’s findings. I have reached this
conclusion because, with regard to the Telephone Threats, the RPD considered
the instructions found in the BOC and used them to reach its decision. The RPD
had not considered them. In dealing with the Non-Reporting, the RAD considered
case law which was not mentioned by the RPD and assessed documentary evidence
about police corruption, which the RPD had not considered. Finally, the RAD
dealt with the Principle Applicant’s failure to recall the Family Threat
without prompting. It reconsidered all the circumstances and concluded that the
RPD had not taken a microscopic approach to the evidence.
D.
Issue 4: Did the RAD Err in Confirming the RPD’s
Decision Given that it Overturned the RPD’s Finding About the Non-Reporting?
[31]
At this point I begin my review of the RAD Decision
using reasonableness as the standard of review.
[32]
The Applicants say that the RAD erred in
dismissing the appeal because the Principle Applicant’s failure to report the
Telephone Threats to the police was central to his case. The Applicants also
say that it is difficult to know whether the RPD might have reached a different
conclusion about the Principle Applicant’s credibility if it had not made an
adverse finding about the Non-Reporting.
[33]
The Respondent argues that, given the numerous
other negative credibility findings, the RAD Decision is reasonable.
[34]
I am persuaded by the Respondent’s submission.
In my view the Non-Reporting was not central to the case. The most powerful
findings had to do with the Family Threat and the delay in leaving Bangladesh. In my view, there was more than sufficient evidence to support the RAD Decision
even though it concluded that the RPD had made an error with respect to the
Non-Reporting.
E.
Issue 5: Did the RAD Err in Upholding the RPD’s
Finding About the Telephone Threats and the Family Threat?
[35]
The Applicant submits that the RPD’s finding
about the Telephone Threats was made without regard to the evidence because
they were mentioned in the BOC in answer to question 2(b). However the RPD did
not reach its negative conclusion because the Telephone Threats were not
mentioned in the BOC, rather its negative credibility finding was made because
the number of calls was large and there was no reference in the BOC to their
number or when they began. For this reason, I find that the RAD’s decision to
uphold that the RPD’s finding on this topic is reasonable.
[36]
Regarding the Family Threat, I am persuaded that
the RAD reasonably concluded that the RPD did not err when it found that the Principle
Applicant’s explanation that he “forgot” was not
credible.
VI.
Certified Question
[37]
No certified question was proposed for appeal.
VII.
Conclusion
[38]
For all these reasons the application will be
dismissed.
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