Date: 20030428
Docket: IMM-1671-02
Citation: 2003 FCT 521
Ottawa, Ontario, Monday the 28th day of April 2003
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
ABDULLAH AL-MAHAMUD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Abdullah Al-Mahamud is a citizen of Bangladesh who brings this application for judicial review from the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which found that he was not a Convention refugee. Mr. Al-Mahamud claims a well-founded fear of persecution at the hands of the Awami League ("AL") and the police in Bangladesh by reason of his political opinion as a member of the Bangladesh National Party ("BNP") and a former member of the student wing of the BNP, the Jatiyotabadi Chatra Dal ("JCD").
THE CLAIM TO A WELL-FOUNDED FEAR OF PERSECUTION
[2] The facts upon which Mr. Al-Mahamud's claim was based were summarized by the CRDD as follows:
It is the claimant's evidence that he was an active member of the JCD while attending Dhaka University in Dhaka between August of 1994 and December of 1996. In September of 1994 he was elected a member of the JCD student council at the university and was given the responsibility of Cultural Affairs Secretary. During this same month a key leader of the JCD student council was stabbed to death and JCD members blamed the student wing of the AL. Another prominent leader of the JCD at the university had his leg tendons cut by Jamat supporters. In September of 1995, the claimant was attacked and injured in a JCD/BNP demonstration against a seventy-two hour general strike organized by the AL opposition. Supporters of the strike attacked the demonstration and the claimant sustained serious injuries to his knee requiring hospitalization. In January of 1996, the claimant was appointed an Executive Member of his BNP unit in Dhaka City. In March of 1996 the BNP ruling government resigned and following parliamentary elections the AL party was elected as the governing party in Bangladesh. In August of 1996, the claimant was injured during an attack on JCD members by members of the Bangladesh Chattro League ["BCL"], the student wing of the AL. Twenty-five JCD and BCL student activists were injured and the police arrested thirty-five members of the JCD. In November of 1996, the claimant participated in a BNP demonstration protesting the killing of the President of Juba Dal by AL militants where he shouted slogans accusing the AL government of being responsible for the killing. The next day the claimant was threatened by local AL militants who attempted to physically attack him, but he was able to escape. Following this incident and fearing his personal safety, the claimant went into hiding and fled to Chittagong in December of 1996.
In January of 1997, the claimant was admitted to and was enrolled in training at the Marine Academy in Chittagong for two years. Due to his fear of local AL militants in Dhaka, he did not return there during this two-year period. Following his cadet training at the Marine Academy, the claimant returned to Dhaka and re-joined the BNP. In January of 1999, he was appointed Joint-Organizing Secretary for his BNP unit in Dhaka. During this same month the claimant helped organize and participated in a demonstration in Dhaka in support of a national strike against the ruling AL government sponsored by the BNP and other opposition parties. With the support of the police, local AL supporters attacked the demonstration and beat many of the demonstrators. The police also arrested ten BNP supporters. However, the claimant was able to escape without injury or being arrested. During a strike demonstration in February of 1999 in Dhaka in which the claimant participated, the police once again attacked and dispersed the picketers. The police assaulted eight local BNP Members of Parliament.
In May of 1999, the claimant witnessed the death of a neighbour child caused by the collapse of an iron gate and pillars at a house belonging to the mother of AL government's Minister of Food and Agriculture. He assisted the child's mother and uncle in making a complaint with the local police against the owner for faulty construction and negligence causing the death. However, following threats to the claimant and the child's relatives by local AL members, the family withdrew its case against the owner of the house. Following this incident, the claimant alleges he was increasingly targeted by local AL militants.
In July of 1999, the claimant, along with others BNP supporters, formed a committee to fight AL terrorism and extortion in the area. That same month the committee arranged a public meeting in the claimant's area of Dhaka. During this meeting, the claimant, among others, made a speech critical of the AL and the AL government and demanded that they stop state terrorism. Three days later, the claimant received an anonymous letter in the mail threatening that he would either be jailed or killed. The claimant went into hiding and during the evening of July 28, 1999, the police and three local AL members raided his home to arrest him. The police advised the claimant's family members that he was wanted for anti-government activities. The police raided his home again one week later. On August 4, 1999, a Dhaka area BNP Vice-President was murdered by AL terrorists and upon reading of the murder in a newspaper the next day and in fear for his personal safety, the claimant decided to depart Bangladesh.
THE DECISION OF THE CRDD
[3] In denying Mr. Al-Mahamud's claim to status as a Convention refugee, the CRDD found that:
1. Mr. Al-Mahamud told the immigration officer at the port of entry interview that Mr. Al-Mahamud had taken the marine engineering course in 1997 and 1998 (starting in March of 1997, not June of 1997) so that he would be able to leave the country. This was somewhat inconsistent with his evidence at the hearing. When the inconsistency was put to Mr. Al-Mahamud he testified that he did not say these things to the officer at the port of entry, and that he had had difficulty understanding the officer who spoke to him in a mixture of French and English. The CRDD found, however, in that both an interpreter and a lawyer were present at the port of entry interview. Accordingly, Mr. Al-Mahamud's explanation for the discrepancy was found to be unreasonable and not credible.
2. Mr. Al-Mahamud remained in Chittagong for approximately two years without difficulty. He returned to Dhaka at the conclusion of his course because his course was finished, Dhaka was his home, there was more work in Dhaka, and Mr. Al-Mahamud was not interested in leaving Bangladesh at the time. Mr. Al-Mahamud's return to Dhaka for those reasons was inconsistent with a well-founded fear of persecution.
3. The delay from April 1999 (when Mr. Al-Mahamud received his passport) to September 1999 when he left Bangladesh was inconsistent with a well-founded fear of persecution.
4. The treatment of the JCD and the BNP activists by the student wing of the AL (the Bangladesh Chattro League) and the AL constituted acts of political harassment and not persecution.
5. The threatening letter which Mr. Al-Mahamud received in July of 1999 was undated and unsigned and so was not corroborative of his claim.
6. Mr. Al-Mahamud testified that he was not aware of charges being laid or a warrant of arrest being issued against him. Mr. Al-Mahamud provided a letter from his lawyer that stated the police wished to arrest Mr. Al-Mahamud for instigating the overthrow of the government and preparing to cause a riot, and that the police had power to arrest anyone with alleged involvement in anti-government activities. The CRDD found that if the police continued in fact to have an interest in Mr. Al-Mahamud, charges would have been laid against him. In so finding the CRDD relied upon documentary evidence that:
CHARGE SHEET: Under Section 167(5) of the Criminal Procedure Code, Second Amendment Act of 1992, there is no timeframe for investigation. However, for offences punishable by 10 years imprisonment, the Magistrate may release the accused on bail if the charge sheet has not been submitted within 120 days. The Sessions Judge may allow bail for offences punishable by more than 10 years of imprisonment. Other than getting bail, if the charge sheet has not been submitted within 120 days, the accused has no remedy.
ANALYSIS
i) The rejection of Mr. Al-Mahamud's explanation for apparent discrepancies in the advice he gave at the port of entry and before the CRDD.
[4] Because the CRDD found that Mr. Al-Mahamud had been provided with a Bengali interpreter and that counsel was present at the port of entry interview, it rejected Mr. Al-Mahamud's explanation that there were communication difficulties between him and the immigration officer, and found that explanation to be incredible. It was, however, fairly conceded in oral argument by counsel for the Minister that there was no evidence that either a lawyer or interpreter was present at the port of entry interview. There was, therefore, no basis in the evidence for the CRDD to reject Mr. Al-Mahamud's explanation for the discrepancy. This is a substantial error because the CRDD placed significant reliance on this finding of incredibility.
ii) The finding that Mr. Al-Mahamud's return to Dhaka for his stated reasons was inconsistent with a well-founded fear of persecution.
[5] As noted above, the CRDD found the stated reasons for Mr. Al-Mahamud's return to be the following: his course was over; Dhaka was his home; there was more work there; and he was not then interested in leaving Bangladesh.
[6] In fact, Mr. Al-Mahamud stated in his Personal Information Form ("PIF") that he returned to Dhaka after two years "thinking that my political foes might forget me". At the hearing, Mr. Al-Mahamud testified on two occasions that he had to leave Chittagong because he no longer had permission to stay there and that after two years he thought "my enemies had forgotten about me". This testimony was uncontradicted, and the finding that his return to Dhaka for other reasons was made without apparent regard for this evidence. This evidence was not inconsistent with a subjective fear of persecution.
iii) The finding that the delay in leaving Bangladesh from April 1999 to September 1999 was inconsistent with a subjective fear of persecution.
[7] Mr. Al-Mahamud's unchallenged and uncontradicted sworn testimony was that it was only in August 1999 that he decided to leave Bangladesh, because it was only then that he concluded it was no longer safe for him to remain in Bangladesh. This followed receipt of the threatening letter, and the August 4, 1999 murder of a BNP Vice-President by AL supporters. In the absence of a stated basis for rejecting that testimony, the CRDD had no basis upon which to draw any adverse inference arising out of any delay in leaving Bangladesh from April of 1999 to August of 1999.
iv) The finding that the treatment of JDL and BNP activists was political harassment, not persecution.
[8] The line between persecution and discrimination may be difficult to establish in a particular circumstance. The identification of persecution is a question of mixed fact and law, and where the CRDD proceeds "with a careful analysis of the evidence adduced and a proper balancing of the various elements contained therein" the intervention of the Court is not warranted unless the conclusion reached by the CRDD is unreasonable. See: Sagharichi v. Canada (Minister of Employment and Immigration), (1993) 182 N.R. 398 (F.C.A.) at paragraph 3. In the present case, the CRDD wrote:
The panel considered the documentary evidence before it respecting the treatment of BNP activists by AL activists and the ruling AL government. According to the United States Department of State Bangladesh: Country Reports on Human Rights Practices for 1999:
Violence, often resulting in killings, is a pervasive element in Bangladeshi politics. Supporters of different political parties, and sometimes supporters of different factions of one party, often clash with each other and with police during rallies and demonstrations. Awami League supporters, often with the connivance and support of the police, violently disrupted rallies and demonstrations of the opposition parties, which resulted in numerous deaths. Opposition parties also used armed violence and intimidation to disrupt their opponents' gatherings and rallies, as well as to enforce general strikes. During the year, 24 persons died in hartal-related violence (Section 1a).
There are also a number of news articles reporting on clashes between BNP activists, AL activists and the government since May of 1999 in the documentary evidence before the panel. Other documentary evidence (January, 1999) before the panel indicates:
"The Awami League's policy, unfortunately, has been akin to a combined policy of persuasion, temptation and, as many alleged, intimidation. The defection of two BNP MPs and their induction into the "consensus government" a few months ago is a glaring example of the ruling party's efforts of sticking out carrot policy."
The panel notes that the claimant was attending the Marine Academy at Chittagong University during the year 1997 and testified that he experienced no problems at the hands of the BCL or AL activists at that time. To constitute persecution, the mistreatment suffered or anticipated must be serious and generally the mistreatment must be repetitive and persistent. Based upon the foregoing documentary evidence, the panel finds that the treatment of JCD and BNP activists by BCL and AL activists constitute acts of political harassment and not persecution. The panel further finds that the political violence between BCL/AL and JCD/BNP activists are acts of social and political unrest and that the actions of Bangladesh police authorities are an attempt to maintain public law and order. Based upon the foregoing analysis, the panel concludes that the objective evidence before it does not corroborate the claimant's fear of persecution at the hands of BCL and AL activists. The panel prefers the reliability and impartiality of this documentary evidence to the evidence and testimony of the claimant. [footnotes omitted]
[9] This finding is problematic because the CRDD provided no reasons for its conclusion that the political violence was "social and political unrest" so that it did not corroborate Mr. Al-Mahamud's fear of persecution. Given the evidence that violence was a pervasive element in Bangladeshi politics, and that the activity of AL supporters resulted in numerous deaths, the CRDD was obliged, in the words of the Federal Court of Appeal, in Sagharichi, supra, to provide a careful analysis of the evidence in the context of the legal ingredients of persecution in order to support its conclusion that what Mr. Al-Mahamud feared was social and political unrest, rather than persecution. In failing to conduct this careful analysis, the CRDD committed a reviewable error.
v) The finding that the threatening letter was of little or no weight.
[10] The CRDD gave little or no weight to the anonymous threatening letter because it was undated and unsigned. This ignored the unchallenged evidence of Mr. Al-Mahamud that the date of the letter was established by the postmark on the letter's envelope which was tendered in evidence. Further, it is patently unreasonable, in my respectful view, to give no weight to an anonymous threat of death or jail contained in a letter on the sole ground that the letter was unsigned. Anonymous threats may be very real threats, and in the absence of a better explanation founded in the evidence they can not be dismissed only because they are anonymous.
vi) The absence of an arrest warrant.
[11] As noted above, the CRDD relied upon evidence, contained in a Response to Information Request ("RIR"), to conclude that if the police continued to have an interest in Mr. Al-Mahamud charges would have been laid against him. The CRDD stated that it preferred the objective evidence contained in the RIR over the evidence of Mr. Al-Mahamud and his lawyer.
[12] There are two difficulties with that conclusion. First, the information quoted by the CRDD appears to relate to the time a person may be held in detention before the issuance of the charge sheet, and not to any time limit relating to when a charge must be laid. The information relied upon by the CRDD expressly noted that there is no time frame for police investigation. Moreover, portions of the RIR not quoted stated that "unfortunately, in Bangladesh, "law" and "practice" are not always one and same". This casts doubt on conclusions based solely on black letter law.
[13] More importantly, the documentary evidence before the CRDD, specifically a document prepared by the Immigration and Refugee Board Research Directorate entitled "Bangladesh: Political Developments December 1996 - April 1998", was express that:
3.4 Special Powers Act (SPA)
The Special Powers Act (SPA) of 1974 provides the government with sweeping powers to detain citizens for up to 120 days without a formal charge or specific complaint (Country Reports 1997 1998, 1616,1617; AI 26 Mar. 1997; AFP 12 Mar. 1997). The law was enacted in the post-independence period, ostensibly for national security reasons, and has been used by successive governments to circumvent the judicial process and harass and intimidate political opponents (Country Reports 1997 1998, 1614, 1617; AI 26 Mar. 1997). While in opposition Prime Minister Hasina had repeatedly demanded the SPA be abolished (Bangladesh Observer 14 Mar. 1997, 1; Country Reports 1997 1998, 1616, 1617), leading some to believe she had promised to repeal the law once in power (Dhaka Courier 13 Mar. 1998, 24), but on 11 March 1997 she announced the law was essential to running the state and would not be withdrawn (AFP 12 Mar. 1997; Bangladesh Observer 12 Mar. 1997, 1, 12; Dhaka Courier 14 Mar. 1997, 26). The prime minister reportedly told parliament that three past governments had also deemed the SPA necessary to govern (AFP 12 Mar. 1997; Bangladesh Observer 12 Mar. 1997, 1).
Sources indicate that about 3,500 people were arrested under the SPA in the first nine months of 1997 (Dhaka Courier 20 Feb. 1998a, 25; Country Reports 1997 1998, 1617), and approximately 2,750 were released (ibid.). Government figures indicate that about 2,000 people were kept in detention under the SPA in 1997 (DPA 5 Feb. 1998; Country Reports 1997 1998, 1617). Human rights groups and political activists claim that since coming to power the government has used the SPA "primarily ... to harass and intimidate political opponents" (ibid.); hundreds, perhaps thousands, of opposition party supporters have been detained under the SPA and released when charges could not be brought (ibid.; Dhaka Courier 13 Feb. 1998a, 24).
[14] The documentary evidence also established that section 54 of the Criminal Procedure Code, specifically referred to by Mr. Al-Mahamud's lawyer in his letter, was over-used and abused by the police to arrest persons on a "reasonable suspicion", and was used by police officers to permit "arrest at will".
[15] Findings made on the basis of inferences drawn by the CRDD are not subject to judicial review unless the inferences are so unreasonable as to warrant intervention. However, in the present case the inference drawn by the CRDD that charges would have been laid or a warrant for arrest issued if the police continued to be interested in Mr. Al-Mahamud was made without regard to the documentary evidence which showed that the Special Powers Act authorized detention without charge; that this legislation was used to harass and intimidate political opponents on a widespread basis; and that section 54 of the Criminal Procedure Code was abused by the police to effect arrests at will. It was a reviewable error to fail to address significant and substantial evidence in the documentation on country conditions which was both contrary to the conclusion of the CRDD and confirmatory of the evidence adduced by Mr. Al-Mahamud.
CONCLUSION
[16] On the basis of the errors identified above, the application for judicial review will be allowed. Counsel posed no question for certification and no question arises on this record.
ORDER
[17] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed.
2. The January 23, 2002 decision of the Convention and Refugee Determination Division of the Immigration and Refugee Board is set aside, and the matter is remitted for redetermination before a differently constituted panel of the Refugee Protection Division of the Immigration and Refugee Board.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1671-02
STYLE OF CAUSE: Abdullah Al-Mahamud v. Minister of Citizenship and Immigration
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: Thursday, February 13, 2003
REASONS FOR ORDER:
AND ORDER: Hon. Madam Justice Dawson
DATED: April 28, 2003
APPEARANCES:
Beverly Cleveland FOR THE APPLICANT
Glennys Bembridge FOR THE RESPONDENT
SOLICITORS OF RECORD:
Linka Cleveland Law Offices
Barristers and Solicitors
Regina, Saskatchewan FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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