Sarker v. Canada (Minister of Citizenship and Immigration), docket IMM-2597-97

Date: 19980703

Docket: IMM-2597-97

BETWEEN:

     JALAL UDDIN SARKER

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

MacKAY J.

[1]      This is an application for judicial review seeking judicial review of, and an order setting aside, a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("IRB"), dated May 28, 1997, finding the applicant not to be a Convention refugee.

Background

[2]      The applicant was born on December 10, 1943 and is a citizen of Bangladesh. He joined a political party, the BNP, in December 1991 and he participated in processions and meetings and made speeches and distributed flyers. On April 17, 1996, the applicant was arrested by police and detained after participating in a procession organized by the BNP. He was questioned, beaten and released 2 days later after being photographed and warned to cease his involvement in BNP politics. No formal charges were brought against the applicant, who received medical treatment for a week following his release.

[3]      On June 2, 1996, another procession in which the applicant participated was attacked by the followers of a rival political party, the Awami League ("AL"). Though a complaint was lodged with the police regarding this attack, no protection was provided and the matter was not followed up by police. After he gave a speech on June 3, 1996 at a BNP meeting denouncing the previous day's attack, the applicant's home was attacked and vandalized by AL followers. His wife and children were beaten and threats to his life were communicated to his wife. After reporting the attack to the police the next day, at which time the police refused to investigate, the applicant fled to a neighbour's home.

[4]      On June 7, 1996, the applicant's wife told him that the police had sought the applicant at his home with a warrant for his arrest. Three other members of the BNP were also sought and all the others were eventually arrested and beaten by the police and, as of July 1997, remained in detention. The applicant left his town to escape the police and ultimately arrived in Canada on July 7, 1996, at which time he made a refugee claim. After arriving in Canada, the applicant learned, through his family, that he has been accused of attacking a procession organized by the AL, and of being engaged in other "anti-state" activities, which accusations are said to be untrue. The police are said to have continued to visit the applicant's home up until the time of the refugee hearing on May 22, 1997, as did "goons" affiliated with the AL and a second party, the Jayiya Party. As late as the first week of May 1997, the police are said to have threatened his wife with harm if she did not reveal his whereabouts.

The panel's decision

[5]      The panel was not satisfied that there existed a reasonable chance that the claimant would be persecuted for Convention reasons if he were to return to his country of origin. While the panel accepted the claimant's identity as a Bangladeshi citizen, businessman and BNP member and supporter, it found those aspects of his testimony which were essential to the claim, specifically current police and rival party interest in the claimant, to be implausible and unreasonable.

[6]      While the panel conceded that the documentary evidence clearly points to the ubiquitous nature of violence in politics in Bangladesh, particularly in clashes in the streets when there is a demonstration, the panel was not convinced that an individual with a low profile such as the claimant would be subject to continued interest by thugs from other parties who would continue to call upon the applicant's home. Similarly, while the panel noted that the documentary evidence supports the view that the security forces have reacted disproportionately to opposition-led street violence, the evidence does not show that peaceful low-profile ordinary members of political parties suffer mistreatment by the police. The panel viewed it as highly unlikely that the applicant would be named in a warrant for arrest and be accused of anti-state activities. The alleged outstanding police warrant was the basis of his claim to fear persecution. There was no evidence before the panel that the warrant existed, other than the applicant's story.

[7]      In essence, the panel did not believe his evidence. On a balance of probabilities it found the applicant's evidence implausible, with respect to his experiences with political opponents and the police that he allegedly fears. There was thus no credible evidence to support his claim to fear persecution if he were to be returned to Bangladesh.

Issues

[8]      When this matter came on for hearing counsel for the applicant stressed two principal issues. First, it was urged that the panel had not alerted the applicant, as it is urged that in fairness it ought to have done, of its reservations about implausibilities it found in his evidence. Second, it was urged that the panel erred in law by ignoring or misconstruing the evidence before it, particularly the documentary evidence that was supportive of the applicant's evidence.

The applicant's arguments

[9]      The applicant urges that the Board breached principles of natural justice and procedural fairness by failing to make known its concerns regarding the plausibility of the applicant's evidence, before rendering its decision. Credibility had not been raised as an area of concern in the applicant's pre-hearing conference and thus was not addressed by the applicant's lawyer at the hearing. Further, the Board did not raise at the hearing any concerns with regard to the plausibility of the applicant's story and, in fact, the hearing was very brief.

[10]      The applicant urges that the Board may not find the applicant's evidence implausible without first raising its concerns with the applicant, as is the case where it finds inconsistencies in the applicant's evidence. Further, it is submitted that the Board did not question the plausibility of the April and June events, which events must be viewed as having been accepted as a result. The Board failed to consider whether, on the evidence found to be credible and trustworthy, the applicant was a convention refugee.

[11]      The applicant submits that the Board failed to take proper account of documentary evidence, in particular evidence to support the fact that low-level members of opposition political parties are harassed by the ruling goons and police. It is said the Board erred by failing to give any consideration to the documentary evidence before it which supported the applicant's claim.

Analysis

[12]      At the commencement of the panel's relatively brief hearing of this claim, the chairperson did note among other matters of concern to the panel was credibility, except for evidence concerning the applicant's identity, his country of origin, his business background and his involvement as a supporter of the BNP. All other matters of credibility of the applicant's evidence remained in issue, to be established on the panel's assessment through his testimony, as it is in virtually every case.

[13]      It is true that where the panel is concerned or has doubt as to credibility arising from contradictions or inconsistencies in the applicant's evidence, written and oral, it is obliged, in fairness, to indicate those doubts or concerns, and to give an applicant a chance to explain them, before relying on inconsistencies as a basis for disbelieving the evidence provided (see: Ta Wei Li v. M.E.I., (1996), 109 F.T.R. 178, and Gracielome v. Canada (MEI) (1989), 9 Imm. L.R. (2d) 237 (F.C.A.)).

[14]      Here the panel was not concerned with inconsistencies in the applicant's evidence. Rather it found key aspects of the applicant's story to be implausible given the panel's general understanding from documentary evidence of country conditions in Bangladesh, and its own experience. The finding that evidence is implausible is a conclusion based on assessment of its likely veracity in all of the circumstances. That conclusion may only be reached after the hearing is over, all the evidence has been submitted and the panel has opportunity to consider it.

[15]      In my opinion there is no obligation on the panel to signal its conclusions on implausibility or on the general credibility of evidence, in advance of a decision. Rather, the onus remains on the applicant to establish by credible evidence his claim to be considered a Convention refugee. The panel did not err, or fail to ensure procedural fairness in concluding there were implausibilities in the applicant's evidence without first bringing those to the attention of the applicant and providing opportunity for him to respond.

[16]      The second issue here raised concerns the panel's conclusion that the documentary evidence did not support the applicant's claim that he would be likely to face persecution were he to return to Bangladesh. The panel concluded that someone with as low a public profile as the applicant would not likely continue to be the subject of police harassment, or even of harassment by goons of other political factions apart from political demonstrations. Documentary evidence included reports of continuing harassment, but other documentary reports indicate this is but part of the difficulty of on-going political strife among parties in the country, especially in election years as was the case here.

[17]      While I might come to a different conclusion than the panel did in this case, on the basis of the documentary evidence before it I cannot say that its conclusion was without support in the documents. Where that is the case the Court may not intervene for the panel cannot be said to have been perverse or capricious in its conclusion on the evidence before it.

[18]      For these reasons an order goes dismissing the application for judicial review.

                             W. Andrew MacKay

                                 Judge

OTTAWA, Ontario

July 3, 1998.