Date: 20030417
Docket: IMM-2745-02
Citation: 2003 FCT 456
Montreal, Quebec, April 17, 2003
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
BASHAR AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated May 24, 2002, wherein the Board determined that the applicant was not a Convention refugee.
[2] The applicant is a 33-year-old citizen of Bangladesh. He claims Convention refugee status by reasons of his political opinion and membership in a particular social group. He alleges a well-founded fear of persecution at the hands of the authorities, owing to his status as an active member of the Bangladesh National Party ("BNP") and his leadership role among the farmers of his local district.
[3] The Board found that the applicant had not discharged himself of his burden of proof and established that he had a well-founded fear of persecution in the event of his return to Bangladesh. The applicant's testimony was deemed neither credible nor trustworthy. In the course of his testimony, a number of contradictions, omissions and inconsistencies arose. After being confronted of his contradictions, the applicant explained that he was feeling nervous and he did not recall what he had said. Considering the general lack of credibility of the applicant, no probative value was given to his documentary evidence.
[4] The applicant argues that the Board had the obligation, faced with a testimony that raised doubts, to examine and analyse the documentary evidence and weigh it against the testimony to verify if it could compensate or outweigh the first impression of non-credibility stemming from a preliminary assessment of the testimony.
[5] Whether or not the Board needs to discuss and analyse the documentary evidence depends on the extent in which the evidence supports the applicant's claim. In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, Evans J. stated at para. 17:
[...] the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts.
[6] In the case at bar, the applicant's documentary evidence consisted of a detailed statement from the applicant's political party, a letter from his lawyer and a medical report. The respondent argues that the Board was entitled to disregard the statement from the political party and the letter from the lawyer as this evidence is self serving. While this may be true, and it is the role of the Board to decide on the weight to be given to the evidence, the Board cannot disregard documentary evidence that corroborates the applicant's claim.
[7] The medical certificate indicates that the applicant was the victim of an attack on November 30, 2000, as alleged by the applicant. Given the importance of this evidence to the applicant's claim, I am of the view that the Board should have discussed it and explained why no probative value was assigned to it.
[8] If the Board chose to disregard this evidence, then reasons should have been provided. A blanket statement that no probative value was assigned to this evidence because of a negative credibility finding will not suffice.
[9] As a result, this application for judicial review is allowed. The Board's decision is set aside and the matter is sent back for redetermination by a differently constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.C.
Montreal, Quebec
April 17, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030417
Docket: IMM-2745-02
BETWEEN:
BASHAR AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2745-02
STYLE OF CAUSE:
BASHAR AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: April 17, 2003
REASONS FOR ORDER :
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: April 17, 2003
APPEARANCES:
Mr. Jean-Michel Montbriand FOR THE APPLICANT
Ms. Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Doyon & Montbriand FOR THE APPLICANT
Montreal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
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