Date: 20060410
Docket: IMM-4044-05
Citation: 2006 FC 394
BETWEEN:
RANJIT DEY ROY, RATNA RANI DEY ROY,
SWAKSHAR DEY ROY and SWAIKOT DEY ROY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.
INTRODUCTION
[1] Ranjit Dey Roy (the "adult male Applicant") and Ratna Rani Dey Roy (the "female Applicant") are husband and wife. Swakshar Dey Roy and Swaikot Dey Roy are the minor sons of the adult male Applicant and the female Applicant. The four Applicants are Hindu citizens of Bangladesh. They fled Bangladesh on the 12th of May, 2004. They sojourned in the United States for more than a month. On the 21st of June, 2004, they arrived in Canada and claimed Convention refugee protection or like protection. They allege a fear of Muslim fundamentalists in general and certain Muslim fundamentalists in particular, and further allege that no state protection is available to them in Bangladesh.
[2] In a decision dated the 10th of May, 2005, the Refugee Protection Division (the "Board") of the Immigration and Refugee Board rejected the Applicants' claims for protection. The Applicants sought judicial review of that decision. These reasons follow the hearing of a portion of the Applicants' application for judicial review.
BACKGROUND
[3] Before the Board, the adult Applicants testified to extensive experience of harassment, extortion, threats and violence against themselves, their children, other family members and their property at the hands of Muslim extremists. Their attempts to gain state protection were rebuffed.
THE DECISION UNDER REVIEW
[4] The Board provided extensive reasons in support of its determination to reject the Applicants' claims. After reviewing the Applicants' allegations and commenting on the hearing before it which extended over three (3) sessions with intervals between each session, at the commencement of the analysis portion of its reasons, the Board wrote:
Based on the documents produced by the claimants [here the Applicants], including their Bangladeshi passports, I have concluded that they have established their identity.
...
However, I have rejected the claimant's [here the adult male applicant's] and his wife's [here the female Applicant's] testimonies as not credible, because of the contradictions, omissions, and implausibilities which they contained, and which they were not able to reasonably explain when given the opportunity. Also, the claimant's and his wife's testimonies at the second sitting significantly varied from their testimonies during the first sitting, concerning both their personal problems and the general situation of Hindus in Bangladesh.
[5] The Board then reviewed the adult male Applicant's testimony before it at some length. It concluded with respect to the adult male Applicant's testimony:
Considering all the above, I conclude that the claimant is not a credible witness, and I reject his story of persecution in Bangladesh as invented.
[6] The Board then reviewed the testimony of the female Applicant. It concluded its review with the following paragraph:
Considering the above, I conclude that Mrs. Roy was not a credible witness, and I reject as not credible her testimony concerning the alleged attempted rape and threats of kidnapping of her son. I do believe that the claimant might have been sometimes insulted or even harassed on the street, as often women in Bangladesh are, and possibly more so women from religious minorities, but that in itself does not amount to persecution.
[7] The Board then turned to an extensive review of the documentary evidence before it. It concluded:
"...I could not find, in the recent documentary evidence from generally respected human rights sources, a report which would come to a different conclusion, namely that now, the Hindu minority in Bangladesh should be in its totality considered as a population at risk. I do agree with the conclusion made by the Honourable Mr. Justice Wilson in his High Court of Justice Queen's Bench Division of Administrative Court of Great Britain, to which the counsel made several references in his submissions, that the evidence does not support the assertion that "in general in Bangladesh there was no serious risk of persecution of persons entitled to reside there". However, nowhere in his decision Justice Wilson comes to the conclusion that, because of serious human rights violations in Bangladesh, all its citizens constitute a population at risk and all should automatically be extended international protection, without the necessity of establishing their individual claims.
I am of the same opinion. I consider that each case should be evaluated individually, based on its individual merit and the evidence on hand. Based on reports about a wave of inter-communal violence which swept Bangladesh in relation to the October 1st, 2001 elections, I was willing, in the months which followed, to accept that at that time, members of the Hindu minority could be considered as a population at risk. However, the claimants in the case at bar have presented insufficient evidence in order for me to conclude that the same situation is now prevailing in Bangladesh and that for that reason, they should benefit from Canada's protection merely as members of the Hindu minority in Bangladesh, despite there not credible testimony concerning the alleged persecution.
[citation omitted]
[8] Thus, the Applicants' claims were rejected not only based upon their own evidence as to their personal experiences, but also on the basis that their membership in a particular social group, the Hindu minority in Bangladesh, did not constitute them members of a population at risk.
THE ISSUES
[9] Procedural issues surrounding "reverse-order questioning" or the Chairperson's Guideline No. 7 were raised on behalf of the Applicants. Those issues were bifurcated from the substantive issues on this application for judicial review and were heard by a different judge. They will be the subject of separate reasons and a separate order. The remaining issues argued before me were dealt with in a brief Applicants' Supplementary Record filed the 21st of October, 2005, after leave had been given on the Applicants' application for leave and for judicial review. They can be summarized as follows: first, whether the Board erred in a reviewable manner by failing to review the audio tape of the Applicants' "fast-track" interview which, counsel urged, would confirm the adult male Applicant's testimony as to how he was able to continue his employment when he and the other Applicants were essentially in hiding in Dhaka, the same city where he was employed; and secondly, whether the Board erred in a reviewable manner in its assessment of the documentary evidence that was before it.
ANALYSIS
a) Standard of Review
[10] While neither counsel specifically addressed the issue of standard of review in their written materials or before the Court, I am satisfied that the Board's determination was based entirely on conclusions regarding the adult Applicants' credibility and on an assessment of the documentary evidence and the evidence of the adult Applicants themselves leading to a conclusion that the Applicants could not be considered to be members of a population generally at risk. In Chowdhury v. Minister of Citizenship and Immigration, my colleague Justice Noël wrote at paragraph [12] of his reasons:
The decision of the RPD as to the Applicant's entitlement to refugee protection is primarily based on the credibility of his allegations. It is well established that the standard of review as to the assessment of credibility of an Applicant by the RPD is patent unreasonableness (See Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at para. 10; Aguebor v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.) at para. 4).
As in the foregoing quotation, I am satisfied that here the Applicants' entitlement to refugee protection is primarily based on the credibility of their allegations.
b) The adult male Applicant's testimony before the fast-track interview
[11] The Board had before it an audio tape of the Applicants' fast-track interview, not a transcript of that interview.
[12] The adult male Applicant testified before the Board as to how he was able to continue in his employment while he and his family members were in hiding in Dhaka. The following is the relevant extract from the transcript of the hearing before the Board:
A. My boss was a foreigner. I talked to him about my problems. I told him look I have this kind of problem. You have to cooperate with me a little bit, otherwise I cannot continue with my work, my office any more. The building in which my office was there are seven or eight foreign organizations, and there is a separate elevator to be used by the foreigners alone. So the boss cooperated with me very much. First of all, he allowed me to use the foreigners' elevator and he told me that do not come to office like every day in the morning and go back in the afternoon. Not like that. You come, we'll tell you whenever we need you, you come to the office, or you come at different hours and go at a different hours. And he made an arrangement for a security guard for me in the office.
BY COUNSEL (to person concerned)
- prepared a question I'd written down.
BY PRESIDING MEMBER(to person concerned)
Q. Is there any reason you didn't write about it in your story [presumably a reference to the adult male Applicant's Personal Information Form narrative]?
A. No, the story was already written. I didn't mention how I continued my work. I thought that when it is...it was all written and I didn't mention this part.
BY COUNSEL (to presiding member)
- I seem to remember...
A. Yes.
- ...that he did mention it at the fast-track interview as well.
A. Sir, I wasn't there at the fast-track.
- no, I think there's cassettes.
A. Okay.
[13] From the foregoing, counsel extrapolates that the Board member was refusing to listen to the audio tape and in fact did not listen to the audio tape. He urged that the adult male Applicant in fact provided the same evidence regarding security arrangements at the "fast-track" interview. I am prepared to assume, albeit that I do not believe it is clear that the Board member refused to listen to the audio tape and did not in fact listen to the audio tape, that she did not.
[14] A transcription of the audio tape from the "fast-track" hearing is part of the Tribunal Record before the Court. From that, I am prepared to assume that an audio-tape of the "fast-track" interview was in fact available to the Board member.
[15] The relevant portion of the transcription of the "fast-track interview" is in the following terms:
A. Madame, I'll explain you how it was. My office was right across a five star hotel Shanagar (phonetic), and it's a very safe area. And the building where I stayed there are eight to ten foreign expartees office there. So those who were working in the field of foreign expartees, there is a separate elevator for them. There's special security. My boss said that I will make special arrangements for you. You always keep in touch with me over the phone and I'll make special arrangements for your security. My boss used to send me the...send me a vehicle with a driver for pickup and also for drops, bringing me back, he used to drop me.
....
Q. So you were okay in Dhaka?
A. I was okay for the number of days that I lived there, because my boss took care there is no person Ranjit, in the name of Ranjit living here, and I had no public contact or transaction.
...
A. He [the adult male Applicant's boss] told, he declared to all the staff that if somebody comes and asks about Ranjit you tell them there is nobody by the name Ranjit here.
[16] Whether or not the Board member listened to the tape of the "fast-track" interview, and I am satisfied that she could not have had reference to the transcript that was before the Court since that transcript clearly indicates it was prepared after the decision under review was signed, is, I am further satisfied, of no consequence. The two versions of how he was able to continue to work following the Applicants' going into hiding in Dhaka are substantially different. I find no basis whatsoever to conclude that the credibility of the adult male Applicant's story is enhanced by comparing the two versions. I find no basis whatsoever to conclude that the Board's determination regarding the adult male Applicant's credibility would have varied in favour of the Applicant if the Board member had had both versions of the "continuing to work" story in front of her.
[17] Against a standard of review of patent unreasonableness, I am satisfied that the Board's credibility findings and its conclusion drawn from those findings, were open to it.
c) The Board's review of the documentary evidence
[18] Counsel for the Applicant focused on the following sentence from the Board's decision:
I could not find, in the recent documentary evidence from generally respected human rights sources, a report which would come to a different conclusion, namely that now, the Hindu minority in Bangladesh should be in its totality considered as a population at risk.
Counsel for the Applicants took the Court to a number of elements of the documentary evidence in the Tribunal Record that, he urged, rendered the foregoing conclusion patently unreasonable. With great respect, I reach a different conclusion. The Board, in the quoted sentence, was referring to the Hindu minority in Bangladesh as a whole and not to the Applicants in particular. In the same paragraph, and earlier quoted, the Board acknowledged:
Life in Bangladesh is not easy for any of its citizens. There is no doubt that religious minorities, most specifically Hindus, are even more vulnerable.
The foregoing sentences are entirely consistent with the burden of the documentary evidence that was before the Board. What would not be consistent with the burden of the documentary evidence before the Board is a conclusion that the entire Hindu population of Bangladesh is at such risk that the Board erred in a reviewable manner, against a standard of review of either patent unreasonableness or reasonableness simpliciter, in concluding that the Applicants, as members of the Bangladeshi Hindu community would be at risk of persecution or like treatment if returned to Bangladesh, notwithstanding that their stories of their personal experiences were found not to be credible or trustworthy.
CONCLUSION
[19] For the foregoing reasons, the portions of this application for judicial review that were here before the Court will be dismissed.
[20] At the close of hearing, counsel were advised of the Court's conclusion and were consulted on the issue of certification of a question. Neither counsel recommended certification of a question.
The Court itself is satisfied that no serious question of general importance that would be dispositive
of the issues here before it arises. No question will be certified.
"Frederick E. Gibson"
Ottawa, Ontario,
April 10, 2006.
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