Docket: IMM-729-17
Citation:
2017 FC 789
[ENGLISH TRANSLATION]
Ottawa, Ontario, August 29, 2017
PRESENT: The Honourable Mr. Justice Gascon
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BETWEEN:
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AHMED KAISAR
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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, Ahmed Kaisar, is a citizen of
Bangladesh. He says that he is a progressive Muslim and received death threats
from the Islamic group Jamaat-e-Islami [JeT] following a confrontation with an
imam in September 2016 at a mosque in Sylhet, Bangladesh. That confrontation
and its consequences led him to flee to Canada in October 2016. When he arrived
in Canada, he filed a claim for refugee protection under section 96 and
subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001,
c. 27.
[2]
In a decision made in January 2017, the Refugee
Protection Division [RPD] of the Immigration and Refugee Board of Canada
refused Mr. Kaisar’s refugee claim on the grounds that his fear of persecution
and his allegations were not credible and that, in any event, he had a viable
internal flight alternative [IFA] in Dhaka, the capital of Bangladesh. The RPD
thus found that Mr. Kaisar was not a Convention refugee or a person in need of
protection.
[3]
Mr. Kaisar has now applied to the Court for a
judicial review of that decision. He argues that the RPD decision was
unreasonable in two regards. First, Mr. Kaisar claimed that the RPD erred in
determining that it was not plausible for him to openly oppose the imam, as he
says he did. He also claimed that the RPD incorrectly found that he had a
viable IFA in Dhaka. The Minister of Citizenship and Immigration responded that
the RPD decision is reasonable in all regards.
[4]
The issue in deciding on Mr. Kaisar’s
application is whether it was unreasonable for the RPD to find that Mr. Kaisar
had a viable IFA in Dhaka. For the following reasons, Mr. Kaisar’s application
for judicial review is dismissed. Having reviewed the evidence available to the
RPD and the applicable law, I am not satisfied that the RPD decision does not fall
within the range of possible, acceptable outcomes, or that there are grounds to
warrant intervention by the Court. I also see no indication to suggest that the
principles of natural justice and procedural fairness were not respected by the
RPD.
II.
Background
A.
The facts
[5]
The relevant facts can be summarized as follows:
Mr. Kaisar alleges that, when he arrived at the mosque in Sylhet, he apparently
confronted the imam in front of some twenty people after hearing him make
extremist statements regarding the “Jihad”
mission. The imam then allegedly claimed that all those opposed to Sharia law
and the creation of an Islamic state in Bangladesh would be killed.
[6]
At the end of the prayer, Mr. Kaisar allegedly
received communication from his spouse telling him that JeT militants armed
with machetes had come to his home to kill him. The militants allegedly
intimidated his spouse and called Mr. Kaisar’s confrontation with the imam a “crime against Islam”. Mr. Kaisar was away from home
at the time to celebrate the birthday of a friend’s son.
[7]
In reaction, Mr. Kaisar said that he fled to
Dhaka the next day, after leaving his spouse and his children with his in-laws
who lived 65 kilometres from Sylhet. He allegedly stayed with a friend in Dhaka
until early October 2016, before leaving for the United States on the advice of
his business associates, to then enter Canada.
B.
The decision
[8]
In its decision, the RPD found that, even
assuming the accuracy of the facts alleged by Mr. Kaisar, his confrontation
with the imam and the visit of JeT emissaries, Mr. Kaisar had the possibility
of safely relocating to Dhaka. The RPD determined that Mr. Kaisar had not
established that he would face a risk everywhere in Bangladesh or that it would
be unreasonable to expect him to move to Dhaka to continue his life.
[9]
In its decision, the RPD reviewed in detail the
documentary evidence submitted by Mr. Kaisar and that, according to him,
showed that all progressive Muslims were at risk of being a victim of the JeT
anywhere in Bangladesh. The RPD was not convinced by that evidence on a balance
of probabilities. The RPD noted that several news articles were repeated and
referred to the same events. As well, according to the RPD, the documentary
evidence mentioned several different groups of people targeted by the JeT, but
none corresponded to Mr. Kaisar’s profile. According to the RPD, the evidence
therefore did not demonstrate that a person like Mr. Kaisar who had only
expressed his views against fundamentalist Islam on one occasion could lead the
JeT (or other extremist groups) to search for Mr. Kaisar throughout Bangladesh.
The RPD also judged that Mr. Kaisar’s allegations regarding the strength of the
JeT and its ability to disseminate information about him over a large network,
or the possibility that his linguistic accent or neighbours could be enough to
identify him, were just speculation.
[10]
In short, the RPD was not convinced that, as a
moderate Muslim, Mr. Kaisar could be in personal danger if he were to move to
Dhaka and that it would therefore be unreasonable for him to do so.
C.
The standard of review
[11]
It is well-established that findings regarding
the existence of a viable IFA are the result of a fact-driven analysis and that
the standard of review applicable to such findings is that of reasonableness (Deb
v Canada (Citizenship and Immigration), 2015 FC 1069 [Deb] at para
13; Emezieke v Canada (Citizenship and Immigration), 2014 FC 922 [Emezieke]
at para 24).
[12]
When the standard of review is that of
reasonableness, the Court must show restraint and not substitute its own
opinion for that of the administrative tribunal, as long as the decision is
justified, transparent and intelligible, and that it falls within “a range of possible, acceptable outcomes which are
defensible in respect of facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 [Dunsmuir] at para 47). Reasons for decision are considered
reasonable if they “allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes” (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 [Newfoundland Nurses] at para 16). Moreover, findings of
fact command a high degree of judicial deference, given the role of the trier
of facts at the administrative tribunal (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 [Khosa] at para 59).
III.
Analysis
[13]
Mr. Kaisar claims that the RPD’s analysis of the
IFA is unreasonable and does not fall within the range of possible, acceptable
outcomes which are defensible in respect of facts and law. In particular, he
accuses the RPD of ignoring his counsel’s submissions regarding a recent
decision by the Refugee Appeal Division [RAD] that raised doubts about the
existence of an IFA in Dhaka under similar circumstances. Mr. Kaisar also
invoked the doctrine of legitimate expectations and argued that the RPD
apparently breached the rules of procedural fairness by changing direction on
the large pool of victims targeted by the JeT.
[14]
I do not agree with the arguments put forth by
Mr. Kaisar and his counsel, and I am instead of the opinion that, in proceeding
as it did, the RPD did not commit an error that would justify intervention by
the Court.
A.
The RPD did not err in its factual
findings regarding the existence of an IFA.
[15]
As I indicated in Deb, the underlying
principle of an IFA analysis is that international protection can only be
offered if the country of origin cannot offer adequate protection throughout
its territory to the person claiming refugee status. The onus rests on refugee
claimants to prove, on a balance of probabilities, that they risk a serious
possibility of persecution throughout their entire country of origin (Ranganathan
v Canada (Minister of Citizenship and Immigration) (2000), FCJ No. 2118
(FCA) [Ranganathan] at para 13; Thirunavukkarasu v Canada
(Minister of Employment and Immigration) (1993), FCJ No. 1172 (FCA) [Thirunavukkarasu]
at para 2; Emezieke at para 28).
[16]
It is trite law that the test for determining whether
a viable IFA exists is two‑pronged (Deb at para 16). First, the
RPD had to be satisfied that Mr. Kaisar does not face the serious possibility
of being persecuted in the part of the country where this is an IFA. Second,
the conditions in the part of the country where there is an IFA had to be such
that it would not be unreasonable for Mr. Kaisar to seek refuge there (Thirunavukkarasu
at para 12; Kohazi v Canada (Citizenship and Immigration), 2015
FC 705, at para 2). In its decision, the RPD explicitly referred to that test,
and there cannot therefore be any reproach regarding the legal test retained
for its analysis.
[17]
Regarding the first component, the RPD determined
that Mr. Kaisar did not face a serious risk of persecution in Dhaka, and that
there was no real and concrete evidence of a serious risk preventing him from
moving there. In particular, the RPD carefully and comprehensively analyzed the
lengthy documentary evidence submitted by Mr. Kaisar, to find that Mr. Kaisar
was not part of any of the many categories of people that could be targeted by
the JeT. In particular, the RPD referred directly to and cited a wide range of
documents in its decision that show that the people targeted by the JeT were
primarily activists, homosexuals, university professors and intellectuals,
political bloggers, foreigners, religious minorities, musicians, journalists,
witnesses for the prosecution, or police officers. However, Mr. Kaisar’s
profile does not match any of those categories, as many as there are.
[18]
Regarding the second component of the test, the
RPD had to analyze whether it would be reasonable for Mr. Kaisar to move to
Dhaka. Here again, the RPD examined Mr. Kaisar’s personal situation and found
that it would not be unreasonable for him to move to the capital of Bangladesh.
According to the RPD, the evidence did not support a finding that JeT
persecutors were actors that had an interest in pursuing him. Mr. Kaisar had
previously lived in Dhaka.
[19]
The RPD’s findings regarding the existence of an
IFA are primarily factual: they are based on significant documentary evidence,
and are at the very heart of its expertise in immigration and refugee
protection. It is well-known that the RPD has the benefit of the specialized
knowledge of its members in assessing evidence relating to facts that are
within its area of expertise (El-Khatib v Canada (Citizenship and
Immigration), 2016 FC 471 at para 6). In such circumstances, the standard
of reasonableness requires that the Court show great deference to the RPD’s
findings. The role of a reviewing court is not to reconsider the evidence on
record, or to or to replace the RPD’s findings of fact with its own. It must
instead consider the reasons as a whole, together with the record (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira] at para 53; Dunsmuir
at para 47), and simply determine whether the conclusions are irrational
or arbitrary.
[20]
Given the evidence that Mr. Kaisar apparently
only publicly confronted the imam once, that he was not an activist, and that
he instead had the characteristics of a moderate Muslim, I am of the opinion
that the RPD’s findings are reasonable and certainly fall within a range of possible,
acceptable outcomes under the circumstances. The RPD explicitly considered Mr.
Kaisar’s particular situation and analyzed all his claims and fears. In light
of the evidence before it, the RPD was correct in finding that Mr. Kaisar had
not shown, on a balance of probabilities, that the persecutors would still want
to pursue him in Dhaka. In its analysis of the IFA, the RPD explicitly examined
the specific risk that Mr. Kaisar said he feared, and determined that there was
none in Dhaka. The RPD rightfully noted that, apart from the isolated incident
in September 2016 at the mosque in Sylhet and the JeT’s subsequent visit to his
home, Mr. Kaisar did not demonstrate any problems when he was in his home
region.
[21]
Mr. Kaisar claims that the RPD committed an
error when it based its findings regarding the IFA on his profile, ignoring the
evidence that showed that people with a wide range of profiles risked facing
persecution by the JeT in Bangladesh. I do not agree. On the contrary, my
review of the decision and the record convince me that the RPD instead solidly
based its findings regarding the IFA on a comprehensive and researched review
of the many profiles of people who have faced persecution. However, despite a
broad spectrum of profiles, Mr. Kaisar’s profile is simply not included. In
other words, Mr. Kaisar did not submit enough evidence regarding the
unfavourable conditions that would endanger his life if he were to move to
Dhaka and he did not demonstrate that it would be objectively unreasonable for
him to seek refuge in the capital of Bangladesh.
[22]
The RPD may not have referred to certain evidence
as clearly as Mr. Kaisar would have liked, but that is not sufficient grounds
to authorize intervention by the Court. A
judicial review is not a “line-by-line treasure hunt
for error” (Communications, Energy and
Paperworkers Union, Local 30 v Irving Pulp & Paper Ltd., 2013 SCC 34,
at para 54). The Court must examine the reasons by reading them “with a view to understanding, not to puzzling over every
possible inconsistency, ambiguity or infelicity of expression” (Canada (Minister of Citizenship and Immigration) v
Ragupathy, 2006 FCA 151, at para 15). As noted by the Supreme Court,
reasons “may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis.” (Newfoundland Nurses,
at para 16). An administrative tribunal is not required to draw an explicit
conclusion regarding every element that leads to its final conclusion.
[23]
Moreover, there is nothing to infer that the RPD
overlooked material evidence that is squarely opposed to its findings. A
tribunal is assumed to have considered all the evidence and is not required
refer to every element thereof (Newfoundland Nurses, at para 16; Florea
v Canada (Minister of Employment and Immigration), [1993] FCJ No.
598 (FCA), at para 1). Failure to mention specific evidence does not mean that
it was not considered or that all evidence was not examined (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35
(FC), at paras 16–17). Only when an administrative tribunal is silent regarding
evidence that clearly contradicts its findings can the Court intervene and
infer that the tribunal did not examine the contradictory evidence in reaching
its finding of fact. However, that is not the case here.
[24]
In fact, the arguments put forth by Mr. Kaisar
simply express his disagreement with the RPD’s assessment of the evidence
regarding the IFA and invite the Court to prefer its assessment and reading
over that of the tribunal. However, that is not the role of the court in a
judicial review (Kanthasamy v Canada (Citizenship and Immigration), 2014
FCA 113, at para 99). The RPD’s reasons for decision regarding the existence of
a viable IFA are justified, transparent and intelligible, and allow for a
determination that the findings fall within the range of possible, acceptable
outcomes. Any reader can know exactly why the RPD determined that Mr. Kaisar
had a viable IFA in Dhaka. Its reasoning is not tainted by a fatal error, and I
feel that the final result is reasonable given the applicable legal principles.
There is therefore no need for the Court to intervene.
[25]
The RPD’s finding regarding the existence of an
IFA in Dhaka was determinative for Mr. Kaisar’s refugee claim (Thaneswaran
v Canada (Citizenship and Immigration), 2007 FC 189, at para
32), and it was enough to dismiss his entire claim (Rasaratnam v Canada
(Minister of Employment and Immigration), [1991] FCJ No. 1256, at para 8).
The onus was on Mr. Kaisar to establish that it was objectively unreasonable to
ask him to seek refuge in Dhaka, the region identified as safe by the RPD. That
burden is heavy and required real and concrete evidence of the unfavourable conditions
that would endanger the life and safety of Mr. Kaisar if he were to move to
Dhaka (Ranganathan, at para 15). That was not proven.
[26]
At the hearing before this Court, Mr. Kaisar and
his counsel argued at length that the RPD had incorrectly failed to discuss
precedents submitted to it, particularly a decision by the RAP in July 2016 in
which the RAP found that there was no valid IFA in Dhaka. Mr. Kaisar accuses
the RPD of not explicitly addressing that precedent and claims that the RPD
should have addressed it in its decision. I do not share Mr. Kaisar’s opinion
in that regard.
[27]
On the one hand, Mr. Kaisar cited that RAD
decision for its findings of fact on the lack of an IFA in Dhaka. However, an
RAD decision in a different case with a different factual background cannot be
a precedent that is binding on the RPD in assessing the facts based on the
evidence before it. Moreover, it is clear that the documentary evidence
available to the RPD was different from the evidence on which the RAD relied in
the case cited by Mr. Kaisar. The relevance of a precedent diminishes the more
the factual backgrounds differ. That is the case here. In my opinion, it is
clear that the RAD’s finings on which Mr. Kaisar would have liked the RPD rely
were based on different facts and documentary evidence than what the RPD had
before it in this case.
[28]
It must also be noted that not referring to all arguments or precedents raised by the parties is not enough to
impugn the reasonableness of a decision (Newfoundland Nurses, at para
16).
[29]
To try to strengthen their position, Mr. Kaisar
and his counsel cited at length Vilmond v Canada (Citizenship and
Immigration, 2008 FC 926 [Vilmond] and Csoka v Canada
(Citizenship and Immigration), 2016 FC 1220 [Csoka], at paras 25–26.
With respect, I am of the opinion that Mr. Kaisar is mistaken as to the scope
of those two decisions and that, in fact, they do not help him much.
[30]
In Vilmond, the Court found that the
administrative tribunal had actually failed to examine the applicant’s
allegations and had simply not considered the issue of gender-based
persecution, while that specific argument had been raised by counsel. In that
case, the tribunal had thus ignored a fundamental means expressed invoked at
the hearing. There was a failure to mention the main element at the heart of
the application. It was not a single precedent as is the case here with the RAD
decision. In Mr. Kaisar’s case, it is also clear that the RPD examined his main
argument and his claims that there was no viable IFA in Dhaka and that his
profile did not allow him to escape JeT persecution. However, the evidence
submitted in that regard did not convince the RPD.
[31]
In Csoka, the RAD had access to
documentary evidence that was set aside many times by the Court as not being
very reliable evidence of state protection. In fact, the RAD had repeated
verbatim a passage that was criticized and rejected by the Court in other
decisions. It is in that very specific context that I stated in Csoka
that the RAD remained silent on the matter, even though counsel had specifically
developed that point in his submissions. Once again, the situation is very
different in Mr. Kaisar’s case. The RPD went through all evidence regarding the
profile of people facing persecution in Bangladesh, and considered the
arguments put forth by Mr. Kaisar. The fact that it did not explicitly mention
the RAD decision cited by Mr. Kaisar in support of his position is in no way
the same as the situations in Vilmond or Csoka.
B.
The RPD did not breach procedural
fairness or any principle of natural justice.
[32]
Finally, Mr. Kaisar argues that the RPD
allegedly infringed on his right to procedural fairness and breached the
principles of fundamental justice and the doctrine of legitimate expectations.
Mr. Kaisar and his counsel claim that they relied on certain statements by the
RPD at the hearing before the tribunal that cited the broad spectrum of
profiles that could in fact face persecution in Bangladesh. They submitted that
the about-face by the RPD in its decision is a hinderance to Mr. Kaisar’s
legitimate expectations in that regard.
[33]
I do not share Mr. Kaisar’s opinion regarding
this other ground for judicial review.
[34]
Mr. Kaisar tried to give the doctrine of
legitimate expectations a scope that it does not have (Nshogoza v Canada
(Citizenship and Immigration), 2015 FC 1211, at paras 35–41). The doctrine
of legitimate expectations is part of the rules of procedural fairness. I agree
that issues related to procedural fairness are subject to review under the
stricter standard of correctness (Mission Institution v Khela, 2014 SCC
24, at para 79). That means that, when these issues are raised, the Court must
determine whether the process followed by the decision-maker meets the degree
of fairness required under all circumstances (Khosa, at para 43).
[35]
However, the doctrine of legitimate expectations
does not create substantive rights and cannot hinder the discretion of the
decision-maker responsible for applying the law (Re Canada Assistance Plan
(B.C.), [1991] 2 S.C.R. 525, at pp 557 and 558). It is part of the duty to act
fairly and, for that reason, it only offers procedural protections (Agraira,
at paras 94–97). The proposition that the doctrine of legitimate expectations
cannot create substantive rights is also upheld in a large number of decisions
(Canada (Attorney General) v Mavi, 2011 SCC 30, at para 68; Mount
Sinai Hospital Centre v Quebec (Minister of Health and Social Services), 2001
SCC 41, at para 22).
[36]
In this case, the RPD had apparently mentioned,
at the hearing before it, that there was a relatively broad spectrum of people
facing persecution from fundamental Muslims in Bangladesh. However, that does
not mean that the RPD must necessarily find in favour of Mr. Kaisar and
determine that his profile could be included in that broad range. The doctrine
of legitimate expectations does not guarantee a certain result, it simply
protects a process. In its decision, it is clear that the RPD did in fact
consider the broad spectrum of people who are potential victims of persecution
by the JeT. However, having invoked the broad spectrum of people facing
persecution did not deprive the RPD of its discretion in assessing the evidence
on record and to determine whether or not Mr. Kaisar’s particular profile
matched any of the profiles included in that spectrum. Following a detailed
analysis, the RPD found that it did not.
[37]
The duty to act fairly (which includes the
doctrine of legitimate expectations) is not related to the merits or content of
a decision, but rather to the procedure followed. The nature and scope of that
duty can vary based on the attributes of the administrative tribunal and its
enabling statute, but its requirements always refer to the procedure, not the
substantive rights to be determined by the tribunal. However, the RPD’s
decision does not breach any of the elements of procedural fairness. There is
no evidence in this case of a breach by the decision-maker or that Mr. Kaisar
was unable to be heard, or any suggestion that he was treated unfairly.
[38]
The fact that the factual conclusion reached by
the RPD is not the one that Ms. Kaisar hoped to receive is in no way a breach
of the doctrine of legitimate expectations.
IV.
Conclusion
[39]
For the reasons indicated above, Mr. Kaisar’s
application for judicial review is dismissed. Under the standard of reasonableness,
it is enough if the decision subject to the judicial review falls within the
range of possible, acceptable outcomes which are defensible in respect of facts
and law, and if it is justified, transparent, and intelligible. That is the
case here. Moreover, in every regard, the RPD respected the requirements of
procedural fairness in its handling of Mr. Kaisar’s claim. The RPD’s
decision is therefore not tainted by any error that would justify intervention
by the Court.
[40]
None of the parties proposed general questions
for certification. I agree that there are none in this case.
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