Joarder v. Canada (Minister of Citizenship and Immigration), 2003 FC 1392

Date: 20031126

Docket: IMM-2861-02

Citation: 2003 FC 1392

Ottawa, Ontario, this 26th day of November, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE          

BETWEEN:

                                                    MAMUN HOSSAIN JOARDER

SONALI DIL AFROZ

MAHIYA NASRIN

                                                                                                                                                      Applicants

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Immigration and Refugee Board (Convention Refugee Determination Division) (the "Board"), dated May 22, 2002, wherein it was determined that the applicants were not Convention refugees.

[2]                 The applicants request an order that the matter be reconsidered before a differently constituted panel of the Board.

Background

Introduction

[3]                 The applicant, Mamun Hossain Joarder (the "applicant"), his wife, Sonali Dil Afroz, and their minor daughter, Mahiya Nasrin, are citizens of Bangladesh. The applicants arrived in Canada on September 29, 2000 and made Convention refugee claims. Their claim is based on the applicant's perceived political opinion and his membership in a particular social group, the Bangladesh Nationalist Party ("BNP").

[4]                 The applicant stated he is a well-known soccer player in Bangladesh. Having played soccer for ten years, in December 1999, the applicant decided to retire and moved back to Chuadanga and settled in with his family. He decided to get involved in politics. In February 2000, he was formally enrolled as a member of the BNP. The applicant attended various activities organized by the party and was also invited to give motivational speeches to youths to persuade them to join the party.

[5]                 The applicant stated he was targeted by the Awami League ("AL"), the political opponents of the BNP, because of his success as a BNP member and his efforts to increase the popularity of his party. The applicant continued to work for the BNP despite the threats. In July 2000, AL goons (to adopt the term used by the applicant and the Board in its reasons) ransacked the applicant's house and told his wife that next time it would be worse. The applicant reported this to the authorities, but no action was taken. In the first week of August 2000, the applicant received another call wherein the AL Secretary of Chuadanga threatened him with further harm if he did not cease his BNP involvement. On August 10, 2000, AL goons attacked him. Again he called the police, but they did not respond. A doctor was called to attend to his wife. He went to the police station where he was told that they do not have power over the AL goons. He was told by two Members of Parliament that the police would not listen to them. The applicant went into hiding when he was advised to do so. Later, he went to Dhaka, where he was told that the police had declined to take any action against the AL goons. While in Dhaka, he was attacked again by the AL goons. After he learned that his wife and daughter were also threatened, the applicant and his family fled the country in September 2000.

Reasons of the Immigration and Refugee Board (Convention Refugee Determination Division)

[6]                 Credibility

The Board found the evidence provided by the applicant to be vague, contradictory, evasive and implausible. It concluded that the applicant lacked credibility and trustworthiness.    While the applicant's popularity as a soccer player might have played a role in politics, in the Board's opinion, there was insufficient credible evidence before it to support his allegation that the AL goons would still be looking for him more than seventeen months after his departure from Bangladesh and more than six months after his party, the BNP, was elected to power.

[7]                 State Protection

Taking into consideration the fact that the party the applicant belonged to has formed the government in power, and given the particular social conditions that exist in Bangladesh, the Board found that state protection was adequate.

[8]                 Change of Circumstances

At the time the applicant left Bangladesh and arrived in Canada, the AL was in power. However, the BNP won the October 2001 national elections. Recognizing that the change of circumstances of a country is a factual, rather than legal question, the Board found that the applicant did not now have a well-founded fear of persecution.

[9]                 Considering the totality of the evidence, the relevant statutory provisions and jurisprudence, the Board found that the applicants had not demonstrated there is a reasonable chance that they would be persecuted for any of the enumerated grounds of the Convention refugee definition. Therefore, the Board determined the applicants are not Convention refugees.

[10]            This is the judicial review of the decision of the Board.

Applicants' Submissions

[11]            The applicant submits he has a subjective fear of persecution, has suffered persecution in the past and that there is a serious possibility he will suffer persecution in the future.

[12]            It is submitted that the Board erred in law by finding the applicant was not a Convention refugee because it misinterpreted and misapplied the definition set out in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.

[13]            It is submitted that the Board erred in failing to give due consideration to the applicant's oral and written evidence with respect to his well-founded fear of persecution in Bangladesh. The applicant submits the Board erred in failing to address the evidence that the political parties in Bangladesh have a record of persecuting political opponents through violent means. The applicant submits that the Board found that since the AL was no longer in power, then perfect state protection was available to the applicant upon his return to Bangladesh. It is submitted that the Board failed to address and weigh the involvement of goons for political ends.

[14]            The applicant submits the Board's negative credibility finding was based on a capricious and perverse interpretation of the evidence before it.

[15]            The applicant submits that the Board erred in determining the applicant was trying to hide the change of government in Bangladesh as he had submitted documents on post- election violence.

[16]            The applicant submits the Board erred in failing to give consideration to the documentary evidence before it. It is submitted that the documentary evidence indicates there has not been a fundamental change in Bangladesh sufficient to conclude that the basis of fear which caused the applicant to flee Bangladesh no longer exists.

[17]            The applicant submits the Board based its decision on erroneous findings of fact made in a perverse or capricious manner and without regard to the material before it. It is submitted that the Board erred by failing to deal with all the evidence before it. It is also submitted that the inferences drawn by the Board were not reasonable given the evidence before it.

Respondent's Submissions

[18]            The respondent submits that the applicants have failed to provide any persuasive arguments to suggest the Board's credibility findings are patently unreasonable. If the Court finds the Board's credibility findings are not patently unreasonable, then it is submitted that the Board's findings on state protection and changed country conditions are moot as a negative credibility finding is sufficient to dispose of a claim since the subjective element of the Convention refugee definition would not be established.

[19]            The respondent denies that the Board found that perfect state protection was available to the applicants in Bangladesh. When read in context, it is submitted that what the Board meant was that nobody in this world, including the applicants, can expect perfect protection and the protection available to the applicants in Bangladesh is adequate. It is submitted that the Board's finding that the applicants failed to rebut the presumption that state protection would be available to them in Bangladesh was not patently unreasonable based on the evidence.

[20]            The respondent submits that the Board's finding regarding changed country conditions was reasonably open to it based on the changes in Bangladesh and the applicant's specific circumstances.

[21]            The respondent submits that the applicants have provided no evidence or cogent arguments to rebut the presumption that the Board considered all the evidence presented to it and, as such, the applicants' argument that the Board ignored evidence cannot succeed.

Issues

[22]            The issues as stated by the applicants in their memorandum of argument are:

1.          Did the Board err in law when it found the applicant was not a Convention refugee because it misapplied and/or misinterpreted the definition of Convention refugee?

2.          Did the Board err in law when it ignored, misconstrued and/or misapplied evidence properly before it which substantiates the applicant's case that he has a well-founded fear of persecution in support of his refugee claim?

3.          Did the Board err in law when it based its decision on erroneous findings of fact that were not made in accordance with the evidence presented to it?

4.          Did the Board err in law in failing to base its decision on the totality of the evidence before it?

5.          Did the Board err in law in concluding in the alternative that there was no objective basis to the applicant's claim to Convention refugee status?

6.          Did the Board err in law in failing to assess the political circumstances and change in country conditions in light of the evidence before it?

Relevant Statutory Provision

[23]            Subsection 2(1) of the Immigration Act, supra, states, in part, as follows:

Analysis and Decision

[24]            Issue 1

Did the Board err in law when it found the applicant was not a Convention refugee because it misapplied and/or misinterpreted the definition of Convention refugee?

The definition of Convention refugee found in subsection 2(1) of the Immigration Act, supra has been outlined above. The Board, in its decision, found the evidence provided by the applicant to be "vague, contradictory, evasive and implausible". The Board concluded that the applicant lacked credibility. The Board based its non-credibility finding on factors including the applicant's testimony concerning his membership ranking, his testimony concerning changes in his country since his departure and his claim that the AL goons were still looking for him.

[25]            The standard of review of the Board's credibility findings is well-established by the jurisprudence of this Court. As Justice von Finckenstein recently summarized in Sivagnanam v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1542, 2003 FC 1216 (at paragraph 10):

The standard of review for credibility findings by the Board is patent unreasonableness. The Court will only intervene if the finding is made capriciously, without regard to the evidence or based upon erroneous findings of fact (Aguebor v. Canada (Minister of Citizenship and Immigration) (1993), 160 N.R. 315 (F.C.A.)). While the Board cannot base its credibility determination on irrelevant and minor inconsistencies, findings related to internal contradictions, inconsistencies and evasions form the "heartland" of its discretion (Giron v. Canada (Minister of Employment and Immigration), [1992] 143 N.R. 238 (F.C.A.)). Therefore, this Court accords a high degree of deference to a credibility finding made by the Board on the basis of inconsistencies in an applicant's story.

[26]            In Aguebor, supra, a decision cited above by Justice von Finckenstein, the Federal Court of Appeal provided guidance to this Court when sitting in judicial review of Board decisions:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. . . .

[27]            As emphasized in Aguebor and Sivagnanam, supra, the question for consideration on judicial review is not whether this Court would have reached a different conclusion than the Board as to the applicant's credibility, but rather, whether the decision of the Board was reasonably open to it based on all the evidence.

[28]            Role in the BNP

The applicant testified at the hearing that he was "a middle layer - - middle leeder [sic]" and then later he testified he was "a simple member" of the BNP.

[29]            Change in Bangladesh

The applicant was asked by his counsel:

. . . Now, since you left the country, what are the most significant changes that occurred to your knowledge?

The applicant answered that they had lowered the picture of the father of the nation and passed the Public Safety Act. After considerable questioning by his counsel, the applicant indicated that another change was that the BNP party, to which he belonged, had come to power in Bangladesh. When asked why he did not immediately offer this information, the applicant stated that he was having problems understanding the question. The Board noted in its decision that the applicant's answer that the Public Safety Act had been passed was a clear sign he understood the question, and interpreted his answer as an attempt to hide information about the BNP being in power.

[30]            The Applicant's Forward Looking Fear

The Board doubted the trustworthiness of the applicant's statement that he feared the AL goons if he returned to Bangladesh. Instead, the Board accepted documentary evidence that the police are always aligned with the existing government, which is now the BNP. The Board concluded it would be very difficult for members of the AL to harm BNP members, who now form the government.

[31]            The Board's findings on the above-noted issues do not warrant my intervention. It is not enough that the applicant has now put forward alternate explanations for his answers during the hearing that grounded the Board's negative credibility finding. The applicant has not satisfied me that the Board's findings are capricious, are based on an erroneous finding of fact or otherwise disregard the evidence before the Board. In my view, the inferences drawn by the Board were reasonably open to it based on all the evidence. Hence, my intervention is not warranted.

[32]            The Board also dealt with the issue of state protection. The Board stated in part, in its decision:

In the panel's opinion, protection has to be adequate. Perfect protection does not exist. Can an individual expect perfect protection from the authorities?

I take the Board to be saying that adequate state protection has to be available to the applicant. This is in line with the reasoning in Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189, (C.A.) (QL). The Board found that the BNP, the party to which the applicant belongs, has now formed the government in power. Since the documentary evidence and the applicant's own testimony indicated that police forces are available to the ruling party, it was open to the Board to conclude that adequate state protection would be available to the applicant should he return to Bangladesh. I am of the view that based on the evidence before the Board, this was a reasonable conclusion.

[33]            The Board dealt with the issue of change in country circumstances apart from its basis for the credibility findings. The Board referred to the decision in Yusuf v. Canada (Minister of Employment and Immigration) (1995), 179 N.R. 11 (F.C.A.) and stated that the critical consideration is whether a change of circumstances (political situation) is effective and durable as opposed to merely transitory and whether these changes would have any impact on this applicant's situation. The Board decided that, based on the change in the political situation in Bangladesh, the claimant did not now have a well-founded fear of persecution should he return to that country. In my view, this finding does not warrant this Court's intervention.

[34]            The applicant suggests in his affidavit that some of his problems answering questions before the Board was due to the translation. From a review of the transcript of the evidence, I do not agree.

[35]            In sum, I find that the Board's finding that the applicant was not a Convention refugee was reasonably open to it based on all of the evidence.

[36]            Issues 2 to 6

Did the Board err in law when it ignored, misconstrued and/or misapplied evidence properly before it which substantiates the applicant's case that he has a well-founded fear of persecution in support of his refugee claim?

Did the Board err in law when it based its decision on erroneous findings of fact that were not made in accordance with the evidence presented to it?

Did the Board err in law in failing to base its decision on the totality of the evidence before it?

Did the Board err in law in concluding in the alternative that there was no objective basis to the applicant's claim to Convention refugee status?

Did the Board err in law in failing to assess the political circumstances and change in country conditions in light of the evidence before it?

I adopt my analysis under Issue 1 to dispose of the remainder of the issues raised by the applicant. The applicant has not established that the Board ignored, misconstrued or misapplied the evidence presented to it. The Board stated that it considered the totality of the evidence, and my review of the record supports this statement. Furthermore, I see no basis for overturning the Board's conclusions regarding the well-foundedness of the applicant's fear of persecution or its analysis of the change in country conditions in Bangladesh for the reasons set out under Issue 1.

[37]            The application for judicial review is dismissed.

[38]            Neither party wished to propose a serious question of general importance for my consideration for certification.

ORDER

[39]            IT IS ORDERED that the application for judicial review is dismissed.

          "John A. O'Keefe"         

             J.F.C.

Ottawa, Ontario

November 26, 2003

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-2861-02

STYLE OF CAUSE: MAMUN HOSSAIN JOARDER

SONALI DIL AFROZ and MAHIYA NASRIN

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     Wednesday, May 28, 2003

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Wednesday, November 26, 2003

APPEARANCES:

Mr. John M. Guoba

FOR APPLICANTS

Mr. Greg G. George

FOR RESPONDENT

SOLICITORS OF RECORD:

John M. Guoba

Toronto, Ontario

FOR APPLICANTS

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT