Docket: IMM-2947-17
Citation:
2018 FC 89
Ottawa, Ontario, January 26, 2018
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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JAYARAM GHIMIRE
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Jayaram Ghimire, is a citizen of
Nepal. He arrived in Canada from the United Arab Emirates [UAE] in 2014, having
been approved for a Canadian work visa. He initiated a claim for refugee
protection in 2016. The Refugee Protection Division [RPD] denied the claim
finding Mr. Ghimire is neither a convention refugee nor a person in need of
protection as contemplated by sections 96 and 97 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
The RPD found Mr. Ghimire was: (1) not credible;
and (2) had an internal flight alternative [IFA] in Kathmandu. The Refugee
Appeal Division [RAD] dismissed his appeal and confirmed the RPD’s decision. In
this judicial review of the RAD decision Mr. Ghimire submits that the RAD
ignored or unreasonably assessed evidence, including documentary evidence he
had submitted in response to country condition documentation disclosed by the
RAD.
[3]
As explained below the Application is granted. I
have concluded the RAD failed to address evidence that was directly
contradictory to its conclusions and corroborative of Mr. Ghimire’s narrative.
The failure to address the contradictory evidence in light of the RAD’s
findings renders the decision, including the IFA finding, unreasonable.
II.
Background
[4]
Mr. Ghimire reports that he and his brother were
teachers in Nepal and members of the Nepali Congress. In 2004 they were
approached to join the Maoists who were involved in an insurgency against the
Nepalese government. Shortly thereafter 14 suspected Maoists were killed by the
Royal Nepal Army. The Maoists accused Mr. Ghimire and his brother of being
connected with the killings and attacked them. Mr. Ghimire’s brother was killed
in the attack but Mr. Ghimire managed to escape.
[5]
Mr. Ghimire reports that after killing his
brother Maoists sought him out at the family home, where they assaulted and
threatened his father. The family abandoned the home and established themselves
in another location. Mr. Ghimire fled to the UAE on a work visa. He returned to
Nepal on a number of occasions between 2004 and 2012. On each occasion he
reports in his Basis of Claim Form [BOC] his family was threatened and he was
required to return to the UAE. Mr. Ghimire was married in Nepal in 2011, but
returned to the UAE while his wife remained in Nepal.
[6]
Mr. Ghimire’s BOC states that in 2012 the
Maoists pushed his elderly father into a wall while looking for him and that
his father later died in hospital. He reports that after his father’s death he
returned to Nepal on three additional occasions for short periods to visit his
wife and mother, apparently without incident.
[7]
In 2014 Mr. Ghimire was approved for a Canadian
work visa and went to Alberta to work. He claims that in January 2016 his wife
called to tell him that members of the Maoist Party, specifically members of
the “Chand-led” Maoist faction had visited her:
they were still looking for him in connection with the 2004 killing of the 14
Maoists. They also gave her a letter, addressed to him, accusing him of spying
on the Maoists in 2004 and demanding he present himself in person to explain
his actions.
[8]
After unsuccessfully applying for an extension
to his work visa and for permanent residence, Mr. Ghimire pursued his claim for
refugee protection. He appealed the negative RPD decision to the RAD.
[9]
In denying the appeal the RAD refused Mr.
Ghimire’s new evidence and request for an oral hearing. The RAD concluded that
Mr. Ghimire’s testimony before the RPD regarding an extortion threat undermined
the credibility of his claimed fear of persecution after January 2016 because
neither his Basis of Claim form nor the Maoist threat letter referred to a
demand for money.
[10]
The RAD conducted its own review of the record
and the documentary evidence, including documentation Mr. Ghimire had submitted
in response to further country condition disclosure from the RAD. In
considering a document submitted by Mr. Ghimire entitled “Enduring Dilemmas: Nepal Insurgency Redux,” the RAD
found he had not provided any specific references or raised any arguments
concerning the document and that the document on its own did not establish any
error which would warrant granting the appeal.
[11]
In considering the country documentation
relating to threats and extortion—which included reports of fake or forged
threat letters being used to support asylum claims in Europe and North
America—the RAD noted that there was limited evidence of extortion by Maoist
groups after 2006, that Mr. Ghimire did not fit the profile of the typical
targets, and found Mr. Ghimire’s threat letter to be fraudulent. The RPD
decision was confirmed and the appeal dismissed.
III.
Analysis
[12]
Mr. Ghimire submits that threats against him
originated with the Chand-led Maoist faction, a faction specifically addressed
in the objective documentation. He states the RAD findings relating to this
faction’s reliance on threatening letters—that (1) it was implausible a group
would make threatening demands on formal letterhead and (2) a threat letter
would be a local initiative—are inconsistent with the objective documentation and
render the decision unreasonable.
[13]
The respondent submits the RAD did not ignore
evidence, and in fact set out a detailed summary of its review of the
documentary evidence. The respondent characterizes the substance of Mr.
Ghimire’s submissions as a disagreement with the RAD’s conclusions which does
not render the analysis or outcome unreasonable. I am unpersuaded by the
respondent’s arguments.
[14]
The RAD states in its decision that “no aspect of the documentary evidence leads one to believe
that threat letters are being issued.” This is directly contradicted by
a Response to Information Request dated August 8, 2016 [August 8 RIR] that
states there were news reports in August of 2015 that the Chand led faction,
the Biplav-led CPN-M, “intensified the extortion of
money” in the Khotang district by sending letters to governmental and
non-governmental offices, traders and businessmen who, reportedly, felt “terrorized” by these letters.
[15]
The RAD further noted that “[i]t is not plausible that a group would, on formal
letterhead, demand that the Appellant appear before them and answer for an
action that lead (sic) to the death of their members.” However,
the August 8 RIR states “the Secretary General of HURON
stated that threat letters might be handwritten or printed and signed on
letterhead, or they might take the form of personal letters from commanders or
regional leaders…The NPI representative indicated that these letters were
“normally” issued in the party’s letterhead and signed by the district or
regional commander under pseudonyms that were given by the party.”
[16]
The country condition documentation also states
that in December 2014 “the Netyra Bikram Chand faction
of the CPN-M launched a nationwide campaign for funds that involved the use of
text message, letters and phone calls described as “threatening in nature.””
This contradicts the RAD finding that any use of a threat letter would have
been a local initiative.
[17]
The RAD failed to identify and address evidence
that was consistent with Mr. Ghimire’s narrative and that directly contradicted
its conclusions about the use and form of threat letters and the geographical
scope of the Maoist group’s activities. This leads me to conclude the RAD
failed to have regard for the evidence before it (Cepeda-Gutierrez v Canada (Minister
of Citizenship and Immigration) (1998), 157 FTR 35 at para 15, 1998 CanLII
8667 (TD)), rendering the decision unreasonable.
[18]
It is true Mr. Ghimire’s profile is not
consistent with the profile of those identified in the country documentation as
targets for extortion demands or threatening letters (business people, private
industry, foreign employment recruiting agencies, etc.). However the evidence
does disclose a basis upon which Mr. Ghimire may have been targeted by the
Chand-led faction: his alleged involvement in the 2004 deaths of members of
the Maoist movement. The evidence also indicated that Maoist groups had
continued to seek him out as late as 2012. The RAD did not take issue with any
of this evidence. Mr. Ghimire’s profile does not render the RAD’s failure to
address the contradictory evidence inconsequential in this case.
[19]
I need not address Mr. Ghimire’s argument that
the RAD erred in its treatment of his documentary evidence.
IV.
Conclusion
[20]
The application is granted. The parties have not
proposed a question for certification and none arises.
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