Date: 20030409
Docket: IMM-2896-02
Citation: 2003 FCT 416
Ottawa, Ontario, this 9th day of April, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
WAHID CHOWDHURY
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, Mr. Wahid Chowdhury, seeks judicial review of the decision of the Immigration and Refugee Board ("IRB") rendered June 12, 2002. The IRB determined that he is not a Convention refugee.
Facts
[2] The applicant is a citizen of Bangladesh who seeks refugee status on the basis that he is persecuted as a member of the Bangladesh National Party ("BNP").
[3] Between 1993 and 1995, the applicant was invited by both the BNP and the rival Awami League ("AL") to join their political parties. He joined the BNP in 1996. He states that the AL put pressure on him and extorted money from his business after he had participated, as a BNP supporter, in an anti-government strike.
[4] The applicant states that his complaints to the police about beatings by the AL were not registered. Nevertheless, he continued with his work for the BNP.
[5] The applicant states that in June 1998, two of the BNP publicity workers were beaten while in the process of affixing posters for a planned protest. In February 1999, the applicant was beaten on the way home from giving a speech against the municipal elections.
[6] The applicant says that when the organization behind BNP got stronger and attracted more supporters, the AL goons became more vindictive. He states that his store was the target of arson. Goons chased him from a political meeting, vowing to kill him at the next opportunity. The applicant went into hiding. After his house was raided by the police and his brother was beaten, the applicant decided to leave the country.
[7] On June 8, 2001, he left the country with the help of a broker and arrived in Canada on June 10, 2001. He claims that he first stated his intention to make a refugee claim at the Canadian Immigration Office in Quebec City on June 12, 2001.
IRB Decision
[8] The IRB stated that the applicant was an active member of the BNP since 1996. It noted that the applicant became the target of AL goons and that attacks on him occurred until 2001, when he fled to Canada to seek asylum.
[9] Credibility and identity were stated to be issues. The IRB noted that the applicant arrived in Canada with no identity documents, although he later provided a birth certificate. The Board stated that it did not accept the birth certificate and that the claimant's identity was not established. However, the board did not question that the applicant was from Bangladesh.
[10] The IRB stated that the applicant's claim revolved around his alleged political activities, but that his applicant's attitude during testimony did not reveal him to "fit in any way the profile of a political activist, giving public speeches denouncing in vigorous terms the government, its goons and the police".
[11] The IRB noted that the applicant did not claim refugee status until July 17, 2001, a month after his arrival, which went against his subjective fear. The Board concluded that the applicant's story was a "classic example of a fabricated story", but that he "...ran out of luck when he filed his story in August 2001, alleging that he was a very active member of the BNP and that he suffered persecution from the AL government and its goons." The IRB noted that political history of Bangladesh showed that "it is the party in power which controls the police". It also noted that the BNP regained power in October 2001 and that, even if the applicant's story were true, and did indeed work for the BNP, he would have nothing to fear at the present time since the party he supported has been in power since October 2001. Consequently, the Board found implausible the applicant's statement that AL goons would still cause problems for him upon his return.
[12] The IRB noted that the applicant stated during his immigration interview that he had acquired a false Canadian passport for $14,000. The Board stated that this is a gross exaggeration, since the documentary evidence shows that a false passport is easy to obtain in Dhaka. The IRB noted that the applicant declared during the same interview that his possessions amounted to $14,000 dollars, the same amount paid for the passport. The Board then stated "It is clear that he is not telling the truth regarding the documents he travelled with."
[13] The IRB referred to the decision in Drithiman Chowdhury to suggest that goons in Bangladesh may extort business owners irrespective of their political affiliation and that in such cases there is no link to a Convention ground.
[14] The Board stated that the claimant's story was a fabrication "designed to obtain permanent residence in Canada without going through the proper channels". The Board also noted that international protection should not be used as a form of "immigration in disguise". The Board concluded that, since it did not believe the claimant's allegations, it did not give probative value to the documents filed to corroborate the claim.
Issues
[15] The applicant submits that the Board erred in negatively assessing his credibility in relation to his documents (his birth certificate and passport) and his demeanour during the hearing. In addition, the applicant submits that the Board failed to appreciate the totality of the evidence concerning his fear of persecution on return to Bangladesh and the date on which he claimed refugee status. I will deal, in turn, with each of these issues.
Standard of Review
[16] A decision of the IRB is reviewable if that decision is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (ss. 18.1 (4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). It is also generally accepted that the standard of review for questions of fact and mixed fact and law in refugee cases is patent unreasonableness. Conkova v.Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 333 (QL), at para. 5.
Analysis
[17] In its decision, the Board found that the claimant was not credible and consequently his birth certificate would not be given any weight. The IRB stated "to put it simply, we do not know who the applicant is", yet the Board does not dispute that the applicant is from Bangladesh.
[18] The applicant submits that the Board erred in failing to explain in clear terms why it did not give any probative value to his birth certificate. The applicant notes that the Board did not have before it any evidence suggesting that it was not legitimate.
[19] At page 3 of its decision, the Board gave the following reasons for its conclusion that the applicant was not telling the truth concerning his documents:
During his interview with the Immigration Officer, Mr. Chowdhury said that he acquired a false passport for the sum of 14,000 Canadian dollars. This is a gross exaggeration. A false passport is easy to obtain in Dhaka, as shown by the documentary evidence. In the same interview, the claimant declared that all of his possessions amounted to 14,000 Canadian dollars. The same amount as the sum paid for the false passport. It is clear that he is not telling the truth regarding the documents he travelled with.
[20] The applicant also states that the Board misapprehended the documentary evidence concerning the price of a false passport. He submits that there was only one article in the evidence concerning passports, and its subject was the brokerage of valid passports for additional fees, not the purchase or price of false passports.
[21] As noted by the applicant, there is no documentary evidence concerning the price of a false passport. Therefore, there is no evidentiary basis for such a conclusion. The applicant admitted to buying a false passport with the help of his brother. He later produced a birth certificate that, as he stated, he did not bring with him to Canada. It is not clear how the applicant's statements concerning the passport, his birth certificate, and the value of his possessions lead to the conclusion that he was not telling the truth concerning his documents. He had already stated that the passport was false. The evidence is unclear as to whether the applicant included the value of the passport when he gave the net worth estimate to the immigration officer. In the circumstances, I find that the Board's conclusion is patently unreasonable.
[22] In addition, the applicant submits that the Board erred in finding that the claimant did not present as a "determined, opinionated militant" but rather a "shy and low key individual who does not fit in any way the profile of a political activist". The applicant submits that he did not portray himself as a determined, opinionated militant and that the Board merely inferred that he was such through conjecture and speculation. The applicant argues that this amounts to a reviewable error. In support of his argument, the applicant states that in Myilvaganam v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 894 (QL), Simpson J. quashed the decision of the Board when it made several unsupported inferences from the evidence before it.
[23] The Board based its adverse credibility inference on "[t]he claimant's attitude during his testimony..." and concluded that he did not fit the "profile" of a political activist. There is no universal standard for the demeanour of a political activist. When one considers that the applicant comes from another culture and speaks a different language from the panel members, the inference becomes even more dubious. I find the inference to be speculative and based on conjecture, and is consequently patently unreasonable. The Board erred in drawing a negative credibility assessment from this unreasonable inference.
[24] The Board suggested that the applicant's allegations that he is still at risk from AL goons despite the return of his own party to power were implausible. The Board stated that "the AL goons ... now keep a low profile and have problems on their hands that are more urgent than to run after an ex-BNP militant."
[25] The applicant submitted into evidence a letter from the president of the BNP - Brlakha Upazila branch (Exhibit P-3) and a letter from a Bangladeshi lawyer stating that the police had sought to arrest the applicant under the Special Powers Act (Exhibit P-4). Exhibit P-4 stated that the police had attempted to locate the applicant and that the order to arrest him continued in force after the October 2001 change in government. The Board made no reference to these documents, although the lawyer's letter appears to contradict its finding that the AL goons are not now intent on targeting the applicant. In Atwal v. Canada (Secretary of State), [1994] F.C.J. No. 1113 (QL), Gibson J. held that the failure to make reference to a document that was directly relevant to the central issue addressed by the tribunal led to a decision based on an erroneous finding of fact made without regard for all the material before it.
[26] On oral argument, the respondent referred to portions of the documentary evidence concerning whether BNP activists are now protected, but I find that the excerpts refer only to the BNP's return to power, a fact that is not contested. The applicant's continued fear of AL goons was asserted by him at the hearing. In addition, his lawyer's letter states that he is still wanted by the police despite the change of regime. That evidence stands uncontradicted by the documentary evidence. I find that the Board's failure to consider the two letters submitted by the applicant constitutes an error of law. The Board failed to have regard to relevant evidence that directly contradicts its conclusions.
[27] Finally, the applicant submits that the Board made an erroneous finding of fact in stating that the applicant did not claim refugee status until a month after his arrival, on July 17, 2001. The Board indicated that the late claim was not consistent with the applicant having subjective fear. The applicant states that he first claimed status on June 12, 2001, two days after his arrival.
[28] Concerning the date of the applicant's refugee claim, the documentary evidence suggests that the applicant was seen by immigration officials on July 17, 2001, in Québec City. On that date, he was given a notice to appear before the CRDD. However, the applicant's PIF shows that he first stated an intention to claim refugee status on June 12, 2001, some two days after his arrival in Canada. The immigration officer's notes from the July 17 interview state that the applicant had presented a demand for refugee status on July 2, 2001.
[29] The applicant submits that his testimony concerning his claim date should be presumed true in the absence of any evidence to the contrary: Permaul v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 1082, (QL).
[30] If the applicant stated his intention to claim refugee status on June 12, 2001 or July 2, 2001 there is no documentation in the file to attest to his contact with CIC on either of these dates. However, there is documentation concerning the July 17, 2001 contact. The onus is on the applicant to establish his claim. On the evidence before the CRDD, with respect to the claim date, I am of the view that the tribunal's inference on the applicant's subjective fear as a result of the delay in claiming was reasonably open to it. In any event, given my earlier finding that the Board erred in making unreasonable inferences from the evidence, I find that this finding concerning the claim date, although material, is not determinative of the claim.
Conclusion
[31] The respondent submits that it is the function of the Board to assess the credibility of the claimant and cites Ehmann v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 137 (QL), in which Lemieux J. stated that: "where such negative findings [of the CRDD] are clearly made, and reasons given in clear and unmistakable terms, this Court should not interfere...".
[32] The respondent also states that the Board is entitled to make reasonable findings based on implausibilities, common sense, and rationality. The respondent relies on Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at 316, in which the Federal Court of Appeal held that, "...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".
[33] I accept the principle stated in Ehmann, supra, that a Court on judicial review should not interfere with negative findings of credibility where reasons are given in clear and unmistakable terms. In the present case, however, I find little in the way of reasons in the Board's decision, let alone their provision in clear and unmistakable terms. As shown in the above analysis, the reasons given do not stand up to scrutiny. As a result, the application will be allowed.
[34] The parties have had the opportunity to raise a serious question of general importance as contemplated by section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, Chapter 27, and have not done so. I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The judicial review of the Immigration and Refugee Board dated June 12, 2002, is allowed and the matter is referred to a differently constituted panel.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2896-02
STYLE OF CAUSE: Wahid Chowdhury v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 10, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: April 9, 2003
APPEARANCES:
Mr. Rezaur Rahman FOR APPLICANT
Ms. Elizabeth Richards FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Rezaur Rahman FOR APPLICANT
1882 Hennessy
Ottawa, Ontario K4A 3X8
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Ottawa, Ontario, K1A 0H8
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