Rahman v. Canada (Minister of Citizenship and Immigration), 2006 FC 317

Date: 20060310

Docket: IMM-2593-05

Citation: 2006 FC 317

Ottawa, Ontario, March 10, 2006

PRESENT:     The Honourable Mr. Justice Russell

 

BETWEEN:

SYED HABIBUR RAHMAN, MARIUM SIDDIQUA RAHMAN,

SYEDA NOWSHIN RAHMAN, SYEDA NAFISA RAHMAN,

SYEDA NAIMA RAHMAN

Applicants

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR ORDER AND ORDER

 

.

[1]               This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) of the decision of the Refugee Protection Division (Board), dated April 12, 2005 (Decision), dismissing the refugee claims of the Applicants.

BACKGROUND

[2]               The Principal Applicant is a citizen of Bangladesh who arrived in Canada on April 7, 1999 as an assistant cipher and consular officer in the Bangladesh High Commission in Ottawa. He was accompanied by his wife, Marium Rahman, as well as his daughter, Syeda Naima. Their other two daughters, Syeda Nowshin and Syeda Nafisa, were born in Canada during the Applicants’ stay in Ottawa.

[3]               The Principal Applicant alleges that he is a supporter of the Awami League Party, which is now in opposition in Bangladesh but which was in power when he was initially posted to Ottawa in 1999. He says that he would suffer persecution and torture at the hands of the ruling Bangladesh Nationalist Party (BNP) and its supporters if he were to return to Bangladesh.

[4]               The Principal Applicant’s career in the Bangladesh public service began in 1989, and he joined the Ministry of Foreign Affairs in 1992.

[5]               In 1996, the Principal Applicant was posted to Sri Lanka. After bitterly disputed elections in Bangladesh, a movement of civil servants called the “Janatar mancha” criticized the actions of the ruling BNP and called for democratic reform. At the time, the Principal Applicant sent a fax to Bangladesh expressing his support for the Janatar mancha.

[6]               The Awami League came to power in 1996. In 1998, the Principal Applicant became the vice-president of an Awami League-backed professional association.

[7]               The BNP regained power in 2001 and, after the appointment of a new High Commissioner, the Applicant says the environment in the Bangladesh High Commission in Ottawa changed.

[8]               In August 2003, the Principal Applicant briefly returned to Bangladesh to visit his mother. During his stay, he visited the Bongobondhu memorial museum, which was founded by the Awami League in memory of the murdered founder of Bangladesh.

[9]               On December 31, 2003, the Principal Applicant received a show-cause notice regarding his visit to the Bongobondhu memorial museum without the prior authorization required for public servants. The notice also referred to his association with members of the Awami League during his posting in Ottawa. He was given seven days to reply to the allegations and explain why sanctions should not be taken against him. He replied that, since he had been on leave at the time, no prior authorization was required for him to visit the memorial, and he denied the allegations that he had associated with members of the Awami League. No direct sanctions were taken against him.

[10]           During his posting in Ottawa, the High Commission actively pursued the extradition of suspects in the assassination of the founder of Bangladesh who had become Canadian citizens. After the BNP’s return to power, the Principal Applicant claims he began to hear rumours that efforts were being made to enable such suspects to escape prosecution by allowing them to flee to a third country, such as Syria or Libya.

[11]           On August 26, 2004, the Principal Applicant alleges that the High Commissioner ordered him to issue a passport to one of the suspects. When he asked that the High Commissioner’s order be issued in writing, the Applicant says he was threatened by the High Commissioner for insubordination and his support of the Awami League.

[12]           Soon after that, members of the Principal Applicant’s family in Bangladesh started receiving anonymous threatening telephone calls announcing reprisals if the Principal Applicant did not follow orders without questioning his superiors. The Principal Applicant also received letters from colleagues in different parts of the world warning him not to return to Bangladesh because his life would be in danger.

[13]           On August 27, 2004, the Principal Applicant decoded a message from the Ministry of Foreign Affairs ordering his return to Bangladesh by September 7, 2004. Meanwhile, members of the Awami League were being brutalized in Bangladesh, and the leadership of the party was the target of an assassination attempt.

[14]           In his amended Personal Information Form (PIF) the Principal Applicant stated that he had received a transfer order in May 2004, but that his departure had been delayed by the unavailability of a replacement officer.

[15]           The Applicants filed claims for refugee protection on September 3, 2004.

DECISION UNDER REVIEW

[16]           The Board determined that the Applicants were not Convention refugees and were not persons in need of protection on the grounds that the Principal Applicant lacked credibility and that the Applicants’ fear of return was not well founded.

[17]           The Board challenged the following specific aspects of the Principal Applicant’s testimony:

(a)    Omissions in the PIF narrative that were developed at the hearing; and

(b)   Inconsistencies between the PIF narrative and oral testimony.

[18]           The Board also challenged the Principal Applicant’s credibility by drawing a negative inference from the fact that no sanctions were apparently taken against him for his support of the Janatar mancha in 1996, or following his reply to the show-cause notice in 2004.

[19]           The Board determined that the Principal Applicant had changed the nature of his claim at the hearing, making it quite different from what he had written in his PIF narrative.

[20]           The Principal Applicant’s oral testimony revealed that he had been receiving letters from colleagues warning him not to return to Bangladesh before the confrontation with the High Commissioner on August 26, 2004, while his PIF narrative was found to imply otherwise.

[21]           At page 5 of its reasons, the Board writes as follows:

When asked to explain why it is that some of these letters had been written to him even before his confrontation with the High Commissioner in August of 2004, the principal claimant came up with a different reason for his claim. The claimant stated that the real reason he fears persecution and possible death in Bangladesh is that he supported the Janatar mancha in 1996. […]

 

I find that this explanation was an effort by the principal claimant to bolster and embellish his claim, especially because he was unable to offer a reasonable explanation for why he had received these letters of warnings from colleagues even before his confrontation with the High Commissioner.

 

It is reasonable to infer that if his support for the Janatar mancha had been the real reason for his alleged fear of persecution in Bangladesh he would have stated so in his first PIF narrative.

 

[22]           Documentary evidence filed before the Board indicated that, upon its return to power, the BNP had penalized many public servants who had been involved with the Janatar mancha, while professing to “depoliticize” the administration.

[23]           However, these purges took place in 2001, and the Board noted that the Principal Applicant had been allowed to maintain a sensitive position in the High Commission, and that there was no evidence he had been penalized in any way, even after he replied to the show-cause notice in 2004.

[24]           The Principal Applicant’s initial narrative did not mention that he had received a transfer order in May of 2004, but had remained at his post because no replacement was available.

[25]           In his amended PIF narrative, the Principal Applicant did mention this transfer order, and the Board found that the wording suggested a routine transfer.

[26]           At the hearing before the Board, the Principal Applicant testified that the normal duration for a posting in Ottawa is six or seven years, and that a transfer order after only five years led him to conclude that he was being transferred for political reasons.

[27]           At page 8 of its reasons, the Board writes as follows:

It is reasonable to infer that if [the transfer] had been the result of a political vendetta or had been an unusual act the claimant would have said so in a narrative that explained in detail why he was seeking Canada’s protection and why he feared persecution in Bangladesh.

 

The evidence clearly suggests that no action was taken against the principal claimant by his government though many other officers had been transferred, or retired, as a result of their role in the Janatar mancha.

 

[28]           Regarding the Principal Applicant’s confrontation with the High Commissioner and subsequent threatening telephone calls to his family members, the Board noted that the Principal Applicant’s oral testimony downplayed the significance of the confrontation in his overall fear of return to Bangladesh, and that there was no evidence that any members of his family had actually been harmed.

[29]           While documentary evidence filed before the Board did indicate that violence was a pervasive element in Bangladesh’s political life, the Board found that there was no “reliable, trustworthy evidence, however, of any action against the principal claimant that would show that the authorities view him as a political opponent and would persecute him.”

RELEVANT LEGISLATION

[30]           The relevant provisions of the Act read as follows:

 

ISSUES

[31]           The Applicants raise two issues:

1.                  Did the Board commit a reviewable error in determining that the Applicants were neither Convention refugees nor persons in need of protection?

2.                  Did the Board commit a reviewable error in determining that the Applicants did not have an objective basis for fear of persecution?

ARGUMENTS

            The Applicants

[32]           The Applicants urge that the Board misinterpreted the evidence presented before it and committed reviewable errors in its reasons.

[33]           The Principal Applicant states that he never invoked one specific and determinant cause for his fear of return to Bangladesh in his PIF narrative or his oral testimony at the hearing, but that his fear of persecution stems from four factors:

(a)    His expression of solidarity for the Janatar mancha movement in 1996;

(b)   The allegations in the government’s show-cause notice of 2003;

(c)    The High Commissioner’s threats during the 2004 altercation;

(d)   The threatening anonymous telephone calls received by his family members in Bangladesh after his altercation with the High Commissioner.

[34]           The Applicants submit that the Board capriciously rejected their claim because the Board’s analysis was narrowly restrained to the search for one individual cause for their fear of persecution. They argue that their fear of persecution stems from the cumulative effect of the factors listed above, and that any inference of a shift of emphasis between the Principal Applicant’s PIF narrative and his oral testimony results from the Board’s erroneous and unreasonable interpretation of the evidence.

[35]           As to the Applicants’ objective fear of persecution, their position is that the Board applied the wrong test by basing its conclusions on the fact that they had not been the object of persecution. The Applicants cite Salibian v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 454 to support the argument that they are not required to prove that they were persecuted in the past, and that the correct test is whether the evidence indicates that they are objectively at risk if returned to Bangladesh.

[36]           The Applicants submit that the Board’s findings were based on mere speculation rather than the evidence presented before it, which creates a reviewable error. (Miral v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 254). They cite the following examples of  the Board’s reliance on unsupported speculation:

(a)    The assertion that the BNP only sanctioned “major participants” in its reprisals against the Janatar mancha movement;

(b)   The assertion that if the government wanted to take sanctions against the Principal Applicant, they would have fined, fired or demoted him;

(c)    The conclusion that the government had decided to take no action against the Principal Applicant after his reply to the 2003 show-cause notice.

[37]           The Applicants also argue that the Board misinterpreted the evidence before it when it came to the following conclusions:

(a)    The Principal Applicant’s PIF narrative implied that his altercation with the High Commissioner was the “principal reason” for his claim;

(b)   The Principal Applicant’s PIF narrative implied that letters of warning from colleagues in other Bangladeshi missions around the world only started arriving after his altercation with the High Commissioner

[38]           Finally, the Applicants claim that the Board disregarded or ignored crucial evidence which was placed before it, especially the warning letters from the Principal Applicant’s colleagues. While the Board addressed the issue of the dates the letters were received by the Principal Applicant, it failed to address their contents. They cite Kandiah v. Canada (Minister of Employment and Immigration), [1994] F.C.J No. 262 to support the argument that the Board has a duty at least to mention if a specific document is accepted or rejected and the reasons for doing so, especially when the document supports the Principal Applicant’s position.

            The Respondent

[39]           The Respondent submits that the Board’s credibility findings are supported by the evidence, particularly the discrepancies between the Principal Applicant’s PIF narrative and his oral testimony during the hearing.

[40]           The Respondent argues that the shift in emphasis (from the altercation with the High Commissioner in August 2004 in the Principal Applicant’s PIF narrative to the May 2004 transfer order linked to his support of the Janatar mancha movement in 1996 in his oral testimony) regarding the principal cause for his fear of returning to Bangladesh led the Board to conclude reasonably that his allegations were not credible.

[41]           Regarding the Board’s finding that the Applicants lacked an objective basis for fear of persecution, the Respondent cites Adjei v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 67 (F.C.A.) and states that the Board considered and weighed the evidence before it before it came to its conclusion.

[42]           The Respondent alleges that the Board’s inferences were reasonably drawn because there is no evidence that the government of Bangladesh has identified the Principal Applicant as a political opponent or that it would persecute him. The fact that he had been allowed to hold a sensitive position in the High Commission for months, despite the May 2004 transfer order, also led the Board to conclude that the transfer was routine rather than politically motivated.

[43]           The Respondent says that the Applicant did not have any incidents of past persecution to rely upon so that he had to base his claim upon what had happened to similarly situated persons, and that he changed his narrative at the hearing in order to bolster his claim. This is why the Board focussed upon the changes that the Principal Applicant attempted to make to his claim.

ANALYSIS

 

 

            Standard of Review

[44]           The assessment of a refugee claimant’s credibility falls squarely within the Board’s jurisdiction, and the appropriate standard of review for this Court to set aside the Board’s findings is that of patent unreasonableness (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (F.C.A.))

[45]           This Court’s intervention is therefore only justified if the Board’s findings were made in a perverse or capricious manner, or without regard to the material presented before the Board. (Medina v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 926 (F.C.A.), Dhillon v. Canada (Minister of Employment and Immigration, [1990) F.C.J. No. 1040 (F.C.A.))

            The Focus of the Decision

[46]           The Decision does make it clear that the Board felt the “Principal claimant changed the nature of his claim at the hearing, making it quite different from what he had written in his PIF.”

[47]           The Board singled out the following differences:

(a)    The Principal Applicant had suggested strongly in his PIF that his confrontation with the High Commissioner was the principal reason for his seeking protection in Canada. However, he testified at his hearing that his fear arose primarily from his participation in the Janatar mancha and that his confrontation with the High Commissioner was a minor consideration;

(b)   The Principal Applicant’s PIF had implied that he received the warning letters from colleagues in other missions after he had received the threat from the High Commissioner on August 26, 2004. However, some of the letters that the Principal Applicant received had been sent to him just before he had met with the High Commissioner and had received notice of return to Dhaka, even though most were received after the threat;

(c)    The Principal Applicant testified at the hearing that the Bangladesh government is taking revenge against all those officers who supported the Janatar mancha in 1996, and that the government is persecuting Awami League supporters and killing them, and that is why he is afraid. However, he did not explain in his PIF, where he made the confrontation with the High Commissioner the pivotal event, that this was the real reason why he feared to return to Bangladesh. The PIF narrative “only makes a passing mention” of Janatar mancha and his support of the movement;

(d)   The Principal Applicant offered no real evidence that he had been penalized in any way for his involvement in the Janatar mancha. Even the show-cause notice issued in 2003 did not result in anything being done against him. The government appeared to accept his explanation;

(e)    At the hearing before the Board in May 2004, the Principal Applicant testified that he received a transfer order after only five years on the job, while normally in Ottawa similar officers are posted for six or seven years. However, in his PIF narrative the Principal Applicant does not even mention his being transferred.

[48]           I have reviewed the record in relation to each of these points. My conclusions are as follows:

(a)    The PIF does not “suggest strongly” that it was the confrontation with the High Commissioner that was the principal reason for the Principal Applicant’s seeking protection in Canada. The PIF sets out a whole history of involvement that would make the Principal Applicant a possible target for the present government in Bangladesh. His confrontation with the High Commissioner may have precipitated his return, but the PIF explains that the reason why his return is dangerous is because of his historical involvement and his show of solidarity with the Janatar mancha. At the hearing he explained that the confrontation with the High Commissioner was not the only reason he faced persecution in Bangladesh. He pointed back to his past history and involvement with Janatar mancha;

(b)   The PIF merely says that “My friends from various Bangladeshi missions abroad have also warned me and asked me not to return now.” At the hearing the Principal Applicant provided clarification on when the letters from friends had been written and why, and he explained that some of the letters had been written before the meeting with the High Commissioner. There is no strong support here for a conclusion that the Principal Applicant changed the nature of his claim or for a material inconsistency between the PIF and the evidence at the hearing;

(c)    There is more than a “passing mention” to the Janatar mancha in the PIF where the Principal Applicant wrote as follows:

The general people and the majority members of the administrative service supported the combined opposition demand of resignation of the government. A Janatar mancha movement (a movement by civil servants) was launched and senior members of the administration openly expressed their support to the opposition demand. Support was also solicited from the employees of Bangladesh missions abroad. I along with others stationed in Sri Lanka expressed our solidarity with the on-going movement to restore democracy. I along with some others were summoned to Dhaka much before completion of my tenure in Sri Lanka. Before the government could take any further action, the government had to call for fresh elections.

 

The clear implication in the PIF is that the Principal Applicant was summoned to Dhaka to face reprisals for expressing solidarity with the Janatar mancha but no action was taken against him because “In the election Awami League won plurality and formed a broad based coalition government with the nationalist and secular parties.” A further clear implication from the whole narrative is that the Applicant would be in danger again if the BNP ever regained power. The Applicant also says in his PIF that, as part of the show-cause notice “I was also accused of engaging in deep conspiracy with the opposition and leaking state secret (sic). My role during the 1996 movement was also questioned.” So his PIF narrative made it clear that the concerns of 1996 during the time of Janatar mancha continued to play a role in his fear of what he might have to face in Bangladesh;

(d)   I agree with the Respondent that the PIF provides no evidence of past persecution. The Applicants make it clear that they fear a future return. Any objective basis for this fear is found in the transcript to the hearing when the Principal Applicant mentions other colleagues who have suffered because they had Awami League associations;

(e)    The transfer is not mentioned in the PIF. The PIF suggests that, following the confrontation with the High Commissioner, a message came that he was to be sent back to Dhaka by September 7, 2004 and that “I suspected that something ominous was going to happen to me. The government was not even willing to give me preparatory time for my departure.”

[49]           So a comparison of the PIF and the evidence at hearing presents something of a mixed bag.  The Board’s assertions appear wrong to me in some ways, but not in others. The issue is whether they are so wrong that the Court should intervene.

[50]           While the Court is always extremely reluctant to interfere on the basis of credibility findings and the Board’s assessment of the objective nature of a claim, I believe that interference is warranted in this case.

[51]           One of the cornerstones of the Decision is that the Principal Applicant changed the nature of his claim from what was revealed in his PIF, “making it quite different from what he had written in his PIF.”  I don’t believe this is the case. While the Principal Applicant provides more detail in his PIF about the confrontation with the High Commissioner, he places that confrontation in the context of his past support of Janatar mancha, and the High Commissioner refers to the Principal Applicant’s history as a reason to threaten him. The Board did not question that the High Commissioner said “Oh, I know that you are a supporter of the Awami League. Something ought to be done about you. I will see to that (sic) you are call (sic) back and then taught a lesson for your insolence.”

[52]           So, I believe it was patently unreasonable for the Board to say he had changed the nature of his claim from one concerned with a confrontation with the High Commissioner to one concerned with the Applicant’s past and his involvement with Janatar mancha and, indirectly, the Awami League. The High Commissioner’s threats only make sense in the context of a prior history in which the Principal Applicant has done something to antagonize the BNP.

[53]           Had this mistake not have been made, the Board’s approach to the rest of the claim might well have been different. Hence, I believe it would be unsafe for the Decision to stand, particularly when the Board itself says that “the documentary evidence states that the BNP government is continuing the tradition of past governments, of using violence against opponents and committing human rights violations … .”

[54]           My conclusion is that the Board’s central credibility finding based upon a change in the nature of the Applicant’s claim is patently unreasonable when the evidence before the Board on this issue is reviewed.

[55]           As Justice Denis Pelletier pointed out in Maruthapillai v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 761 at para. 13:

Weighing evidence is at the core of the Refugee Division’s jurisdiction. It is not for the Court to substitute its own assessment for that of the Refugee Division. However, when weighing the evidence, the Refugee Division must respect a claimant’s testimony. The Refugee Division cannot distort a claimant’s testimony and then find that the claimant lacks credibility.

 

 

 

ORDER

 

 

THIS COURT ORDERS that

 

1.                  The Application is allowed and the matter is referred back for reconsideration by a differently constituted Board.

 

2.                  There is no question for certification.

 

 

 

“James Russell”

 

 

FEDERAL COURT

 

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

 

COURT FILE NO.:               IMM-2593-05

 

STYLE OF CAUSE:              SYED HABIBUR RAHMAN AND OTHERS

                                                v.

THE MINISTER OF CITIZENSHIP AND                                     IMMIGRATION

 

PLACE OF HEARING:        OTTAWA, ONTARIO

 

DATE OF HEARING:          DECEMBER 6, 2005

 

REASONS FOR ORDER

and ORDER                           THE HONOURABLE MR. JUSTICE RUSSELL

 

DATED:                                 March 10, 2006

 

APPEARANCES:

 

MR. REZAUR RAHMAN FOR THE APPLICANTS

MS. JOANNA HILL                                                               FOR THE RESPONDENT

 

 

SOLICITORS ON THE RECORD:

 

MR. REZAUR RAHMAN FOR THE APPLICANTS

BARRISTER AND SOLICITOR

OTTAWA, ONTARIO

 

 

MR. JOHN H. SIMS, Q.C.

ATTORNEY GENERAL OF CANADA                                 FOR THE RESPONDENT