Date:
20131219
Docket:
IMM-2594-13
Citation:
2013 FC 1268
Montréal, Quebec,
December 19, 2013
PRESENT: The Honourable Mr. Justice Simon
Noël
BETWEEN:
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FERDOUS QUAZI
MOHAMMED
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
I. Introduction
[1]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001 c 27 (IRPA) of a decision dated
February 21, 2013, by a member of the Refugee Protection Division (RPD) of
the Immigration and Refugee Board of Canada (IRB), that the applicant is not a
Convention refugee for the purposes of section 96 of the IRPA or a person in
need of protection under section 97 of that same Act.
II. Facts
[2]
The
applicant, a citizen of Bangladesh, is married and the father of two children.
[3]
The
applicant is an active member of the Bangladesh Nationalist Party (BNP), a
political party that is the fierce political rival of another party, the Awami
League (AL). He joined the BNP in 1992 as a general member of the 89th Ward
Unit in the city of Dhaka, and became vice‑president of that Ward Unit in
1996. Over time, the applicant became increasingly active and popular within
the organization.
[4]
Tensions
between the two parties, which alternate in power in Parliament, increased over
time such that the applicant was allegedly the victim of many violent incidents
because of his political affiliation and activities and his opposition to the
AL.
[5]
The
applicant left Bangladesh in March 2006 to settle in the United States on a visa. He lived there illegally for five years.
[6]
In
July 2006, his wife and children, still in Bangladesh, were purportedly
forced to leave their family home to go to live in another village, Kalabaga. Subsequently
his wife apparently received death threats from members of the AL when she returned to visit their house in August 2006 and January 2011.
[7]
The
applicant left the United States on June 2, 2011, to claim refugee protection
in Canada on the grounds that he would have a well-founded fear of persecution
in Bangladesh by members of the AL, that is, by the governing party, toward
which he had expressed fierce opposition.
III. Decision
under review
[8]
The
RPD stated at the outset that it was satisfied as to the applicant’s identity.
[9]
The
RPD rejected the applicant’s claim for two reasons: first, because it did not
find him credible, and second, because it found that there was an internal
flight alternative (IFA) in Bangladesh.
[10]
In
the first place, the RPD found that important parts of the applicant’s account
were neither credible nor plausible. The applicant stated that he held an
important position within the BNP, and yet others who also held prominent
positions within the party were not victims of violence or threats and continue
to be BNP militants without having to flee Bangladesh. The applicant said that he
was more openly critical than his colleagues and that he was targeted more by
the AL because he recruited a lot of members for the BNP, both of which reasons
the RPD characterized as unlikely. The RPD indicated that, since the applicant
left the country in 2006 and has been totally absent from the local political
scene since then, it is unlikely that he would be sought and threatened by the AL. The applicant also asserted that the police are seeking his arrest for charges dating
back to 2000, and that a death threat was made against him in 2009, but the RPD
did not find his testimony credible on this point. He also stated that his
spouse received death threats from members of the AL when she visited the
family home. The RPD characterized that statement as a fabrication because such
a thing was unlikely to have occurred as the applicant’s spouse and children
had moved permanently to Kalabaga.
[11]
Furthermore,
the RPD questioned some key elements of the applicant’s evidence, pointing to contradictions
therein with respect to when the applicant joined the BNP. It also rejected
several pieces of evidence on the basis of a document from the Bangladesh
National Documentation Package that states that certain official documents from
that country may be false.
[12]
The
RPD stated that the applicant resided in the United States for five years
without claiming refugee status there and that he therefore has no subjective
fear of persecution in Bangladesh.
[13]
Second,
the RPD found that there was an IFA in Bangladesh where the applicant could
live without fear of persecution because he was threatened only in the 89th Ward.
According to the RPD, the applicant’s spouse and children were never threatened
in Kalabaga and the applicant could join them there without any problem. Thus,
it would not be objectively unreasonable or unduly harsh to require the
applicant to avail himself of an IFA before claiming refugee status in Canada.
[14]
Finally,
the RPD found that the applicant did not have a subjective fear of persecution at
the time that he left Bangladesh. It added that, on a balance of probabilities,
the applicant would not be faced, if he were to return to Bangladesh, with a reasonable chance or a serious possibility of persecution or with a risk
of torture or a threat to his life or a risk of cruel and unusual treatment or
punishment.
IV. Arguments
of the applicant
[15]
The
applicant is of the opinion that the RPD’s decision is unreasonable for four reasons.
[16]
First,
the RPD erred in dealing with the evidence. It failed to take into consideration
essential documents, in particular a newspaper article that directly
contradicts its findings that other high-ranking leaders of the BNP were never victims
of violence. Furthermore, the RPD made no comment on evidence that contradicts
its findings, in particular with respect to the applicant’s political
activities within the BNP.
[17]
Second,
the RPD found that some of the documents submitted in evidence by the applicant
were false, but it did not indicate why it was rejecting those specific
documents. Yet the RPD had an obligation to provide reasons for that blanket
rejection. It was also required to provide the applicant with an opportunity to
be heard on this point. Moreover, the RPD may only reject official documents if
it has serious grounds for doing so.
[18]
Third,
the RPD erred in concluding that there was an IFA in Bangladesh because it failed
to take into account either the applicant’s level of participation in the BNP from
Canada or documents indicating that people may be the subject of false charges,
and because it failed to consider the whole of the evidence concerning the
applicant, including the fact that his passport has expired and that he is
politically active in Canada. Moreover, the applicant explained in his
testimony why he could not simply move elsewhere in the country.
[19]
Fourth,
regarding the risk of persecution, the RPD should have taken into consideration
the fact that the applicant is associated with the BNP and an opponent of the AL, the party currently in power, and it should have done so even if it did not believe the
allegations of persecution.
V. Arguments
of the respondent
[20]
The
respondent maintains that the RPD’s decision is reasonable and that the Court’s
intervention is not warranted.
[21]
The
respondent began by stating that the mere fact that the applicant lived in the
United States for five years without claiming refugee status there constitutes
a fatal error that justifies the dismissal of his application herein. The
respondent added the following arguments, however.
[22]
First,
the RPD did not fail to consider essential documentation because it is presumed
to have looked at all of the evidence submitted, and the fact that it did not refer
to each item of evidence does not vitiate its decision. Furthermore, the
document relied on by the applicant contradicts his own words as the RPD
summarized the essential points of his testimony in its decision. That is to
say that, in his testimony, the applicant himself did not refer to the content
of the newspaper article.
[23]
Second,
regarding the applicant’s argument concerning the existence of an IFA in Bangladesh, the RPD’s reasons clearly state that it took into account the applicant’s
allegations but did not find them credible, in particular because he had not
been in the country since 2006 and he was no longer politically active there.
[24]
Third,
the RPD did not have to assess new risks in support of the claim, that is, the
fact that the applicant’s passport has expired and that he is politically
active in Canada. Those risks do not appear in the applicant’s Personal
Information Form (PIF).
[25]
Fourth,
the RPD did in fact provide reasons for refusing to give any probative value to
certain pieces of evidence as it clearly stated in its reasons that it based
its decision on a review of the documentary evidence. Furthermore, contrary to
what the applicant claims, the RPD was not required to raise this issue at the
hearing.
VI. Reply
memorandum
[26]
With
respect to the RPD’s alleged failure to take into account certain documents,
the applicant reiterates that the RPD made no comment regarding the article relied
on and that by failing to take into account that article and the applicant’s
testimony at the hearing the RPD distorted the evidence on which one of its
most important implausibility findings is based, that is, the finding that the
applicant cannot alone have been targeted by the AL while other members of the
BNP, who were more prominent than he, were not. Furthermore, the applicant
rejects the findings of implausibility and argues that the RPD should have
informed him of the contradictions it noted so as to give him the opportunity
to respond to them.
[27]
Regarding
the existence of the IFA, the RPD could not have made such a finding if it had
consulted all of the evidence, since the evidence shows that, among other
things, opposition party members can be the subject of false charges and that
such charges are national in scope. This suggests that the RPD did not take all
of the evidence into consideration.
[28]
Regarding
the RPD’s obligation to assess all of the reasons related to risk in the event of
the applicant’s return to Bangladesh, the RPD found that the applicant did not
have a subjective fear at the time that he left the country, whereas it should
have considered the extent of his subjective fear at the time of the hearing,
given the new circumstances.
VII. Issues
[29]
The
parties’ arguments raise two issues:
1.
Did
the RPD err in its findings regarding the applicant’s credibility and in its
assessment of the evidence?
2.
Did
the RPD err in finding that there was an IFA in Bangladesh?
VIII. Standard
of review
[30]
The
RPD’s findings concerning the applicant’s credibility and its assessment of the
evidence in the case require deference and must be reviewed on a standard of
reasonableness (Aguebor v
Canada (Minister of Employment and Immigration), [1993] FCJ No 732 at paragraph 4, 160 NR 315). The issue of
the existence of an IFA in Bangladesh constitutes a question of fact that must
therefore also be reviewed on a standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47, [2008] 1 S.C.R. 190).
IX. Analysis
A.
Did the RPD err in its findings regarding the applicant’s credibility and in its
assessment of the evidence?
[31]
The
RPD’s decision is unreasonable and the matter must be referred back to the
decision‑maker for redetermination on account of the assessment therein of
the evidence. The errors made by the RPD in its analysis of the evidence are so
significant and so numerous that they warrant the intervention of the Court. In
fact, the erroneous assessment of the evidence constitutes, in part, the basis
of the RPD’s findings with respect to the lack of credibility or plausibility
in the applicant’s statements.
[32]
In
its decision, the RPD called the applicant’s credibility into question by
dwelling on the unlikelihood that he was the subject of violence and threats
because other prominent members of the BNP, including the president of the
party in the applicant’s ward, are still active in Bangladesh and have never
had reason to flee the country (see RPD’s decision at para 17). That finding
cannot stand for two reasons. First, it would be completely unreasonable to
find that the applicant had no reason to leave his country of origin simply because
other people, who perhaps could have left, have remained there. Second, the RPD
reached this conclusion by disregarding an important piece of evidence in the
record that shows that the political context in the country and the political
allegiances of the applicant and the other members of the BNP put them in
serious danger. Indeed, according to a newspaper article filed as Exhibit C-24,
the validity of which is not questioned by the RPD, the president of the BNP in
the applicant’s ward was attacked and so seriously injured that he had to be
hospitalized. After reading this article, it is difficult to understand how the
RPD was able to find that this person had no reason to flee Bangladesh. This error in the assessment of the evidence led to an unreasonable finding that
the applicant lacked credibility. Furthermore, the evidence shows that other BNP
leaders left the country as a result of their political activity (see Tribunal
Record, page 163).
[33]
Further
on, the RPD goes as far as to state that the applicant “acknowledged that the
other leaders [of the BNP] . . . were never the object of threats to their
lives” (see RPD’s decision at paragraph 19). Yet a reading of the hearing transcript
indicates that the applicant never made such a statement. Certainly, the issue
of the fate of the other prominent members of the party was addressed at the
hearing, but the applicant stated that, unlike other members, his life had come
under direct attack. This finding by the RPD is therefore not consistent
with the applicant’s testimony and is unreasonable.
[34]
The
RPD found at paragraph 18 of its decision that there was “a lack of
plausibility with respect to principal aspects of the claimant’s evidence.” Given
this wording, this Court must find that the RPD gave significant weight to the
finding that followed this phrase. That finding is unfounded, however. The RPD
perceived what it considered a contradiction between the information provided on
the applicant’s PIF and that provided on his claim for protection form (CPF). The
applicant allegedly stated that he joined the BNP in two different years: 1992 on
his PIF and 1996 on his CPF. However, the applicant’s CPF specifies that he was
a vice-president starting in 1996, which in no way contradicts the other
information in the record. This error in the assessment of the evidence as well
as the resulting finding are unreasonable, especially given the importance the
RPD attached to this finding and considering its consequences for the
applicant, whose claim is in large part based on his political activities.
[35]
In
paragraph 24 of its decision, the RPD addresses Exhibit C-11, a newspaper
article from 2001 that reports a violent incident between the BNP and the AL. The
RPD found that, since members of both parties were injured, “this is not a
situation where the claimant was targeted.” However, the article is not one
that illustrates in a general manner the violence between the two parties: the
applicant is mentioned in the article as one of the injured who are named. The
RPD therefore erred in its assessment of that piece of evidence.
[36]
The
RPD pursued its reasoning by relying on the Bangladesh National Documentation
Package, which it cited in noting that the country had returned to democratic
rule in 2009, that previously flouted constitutional rights had been restored,
and that the elected government had made a commitment to address a number of
serious human rights problems. As the applicant rightly observed in his
memorandum of fact and law, one cannot but conclude that the RPD likely cherry‑picked
the excerpts that it wished to rely on because, in the same paragraph as the
one it cited, the following appears: “[y]et extrajudicial executions, custodial
torture, and impunity for members of the security forces continue.” The RPD
cannot split the evidence by extracting the passages that support its conclusion
and not even mention the rest (Muzychka v Canada (Minister of Citizenship and Immigration), [1997] FCJ No 279, at para 10, 75 ACWS (3d) 912; see
also Mir
v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 235, 61 ACWS (3d) 769).
[37]
Moreover,
again according to the national documentation before the RPD, political
violence has increased since the AL has come into power, and supporters of the
opposition party (BNP) are harassed by supporters of the governing party. The
documentation also states that there were 220 deaths and some 14,000 injured
in connection with political violence in 2010 alone.
[38]
In
that respect, it is very clear and has long been recognized by the courts that
an administrative decision-maker is not required to refer to every piece of
evidence before him or her. Such an obligation would be an excessive burden for
decision-makers, whose workload is already heavy. However, administrative
decision-makers, in this case the RPD, must nevertheless demonstrate that they
engaged in the exercise of a general weighing of all of the evidence. The more
the evidence that is not mentioned or analyzed is important in light of the
circumstances in the case, the more willing a court, like this Court, may be to
infer that the decision-maker made an erroneous finding of fact by not taking
into account the evidence before it (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425, at para 17, 157 FTR 35 (Cepeda-Gutierrez), see for example CRPP v Canada (Minister of
Citizenship and Immigration), 2012 FC 181 at para 35, [2012] FCJ No 189).
[39]
Furthermore,
in the case at bar, I am of the opinion that the RPD was required to at least
acknowledge the existence of evidence contrary to its own conclusions (Cepeda-Gutierrez,
above, at para 17). If one is to go by the RPD’s reasoning, Bangladesh has
returned to democratic rule and the legal system is working efficiently. The
RPD made no reference to the significant political violence that continues to
exist, even though this is a central point and one that is absolutely essential
to dealing with the claim.
[40]
Finally,
I am also of the view that the RPD erred by rejecting en bloc, as it did,
certain evidence submitted by the applicant (Liman v Canada (Minister of Citizenship and
Immigration),
2005
FC 686 at para 17,
[2005] FCJ No
831). The RPD cited a document from the Bangladesh National
Documentation Package (the Country of Origin Information Report) according
to which official documents from that country may be false, and then it rejected
a series of pieces of evidence on the basis of that passage alone. The RPD did
not indicate why it rejected those specific documents. Why those and not others?
Even though the document cited cautions the RPD about the existence of
falsified documents, it does not authorize the RPD to systematically reject
evidence on the sole basis that it comes from that country. In accepting certain
documents from Bangladesh and rejecting others, the RPD did not explain its rationale
for doing so. In that context, it was incumbent upon it to explain, if only
summarily, the general nature of the distinctions made.
[41]
However,
the respondent argues, and rightly so, that the applicant lived illegally in
the United States for five years before moving to Canada and claiming refugee
status here. Although this element could have been fatal to the claim at the
heart of this judicial review, I am of the view that the decision is
nevertheless unreasonable because of the large number of errors committed by
the RPD in its assessment of the evidence and the gravity of those errors,
which form the basis of the RPD’s findings with respect to the applicant’s lack
of credibility. All of these errors seriously taint the RPD’s reasoning so that
the decision cannot stand, and the matter must therefore be referred back to
the RPD for redetermination. Given the deficiencies of the decision as regards
the applicant’s credibility, it could be the case that, if the RPD were to look
at the case as a whole from a different perspective, the analysis concerning
the applicant’s five-year stay in the United States might lead to a different
finding.
B. Did the
RPD err in finding that there was an IFA in Bangladesh?
[42]
Given
the answer to the first question and the resultant order that the decision be
set aside, there is no need for the Court to answer the second question. On the
whole, the RPD carried out an unreasonable assessment of the evidence in this
case, including the evidence that led it to find that there is an IFA in Bangladesh. Consequently, the RPD’s finding in that regard cannot be valid and the matter
must be redetermined by the RPD.
[43]
As
a result, for the above-stated reasons, I am of the view that the RPD’s
decision is unreasonable and that the matter must be referred back to the
decision-maker for redetermination.
[44]
The
parties were invited to submit a question for certification, but none was
submitted.
ORDER
THE
COURT ORDERS that this application for judicial review is
allowed and that the matter be referred to another member of the RPD for
redetermination. No question is certified.
“Simon Noël”
Certified
true translation
Erich
Klein
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