Shaikh v. Canada (Minister of Citizenship and Immigration), 2005 FC 74

Date: 20050119

Docket: IMM-9802-03

Citation:2005 FC 74

Ottawa, Ontario, this 19^th day of January, 2005

Present:           The Honourable Justice James Russell

BETWEEN:

                                                      RAFIQUL ISLAM SHAIKH

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            ORDER AND REASONS FOR ORDER

[1]                This is an application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") under s. 72(1) of the Immigration and Refugee Protection Act S.C. 2001, c.27 ("IRPA"), dated November 20, 2003 ("Decision"). The Board determined that the Applicant was not a Convention Refugee and was not a person in need of protection.

BACKGROUND

[2]                The Applicant, Rafiqul Islam Shaikh, is a 44-year-old Muslim from Bangladesh.

[3]                He fears persecution and serious harm, pursuant to ss. 96 and 97 of IRPA, from the Bangladeshi National Party ("BNP") and the Jamat-e-Islami ("J-e-I") if he returns to Bangladesh. The fear is based on the Applicant's membership and activities in the Bangladesh Awami League ("BAL").

[4]                The Applicant says he was involved in the student wing of the BAL, and later with central Awami politics. He completed his bachelors and masters degrees in zoology at the University of Dhaka in 1982 and 1983, respectively. He also received a diploma in Nutrition in 1987 from the Institute of Nutrition and Food Science, University of Dhaka.

[5]                He says he faced persecution from the J-e-I on four occasions: in 1989, 1992, 1997, and 1998.

[6]                The Applicant's narrative is that he opened a Nutrition Counsel Centre in January, 1989, at the Karapara Bazaar. A number of J-e-I goons caused extensive damage to his shop and extorted money from him. He was unable to run the Nutrition Centre because of persecution and serious harm to the business. At the same time, the Applicant and his cousin were working as election organizers and the cousin was killed in an attack by the J-e-I. The Applicant's attempts to get police protection were unsuccessful, so he closed his business and moved to Saudi Arabia.

[7]                In July 1992, the Applicant returned to Bangladesh and spoke to a BAL gathering on minority rights. After the gathering, he was attacked by J-e-I goons. He sought medical help and subsequently returned to Saudi Arabia.

[8]                In April 1997, the Applicant returned, once again, to Bangladesh with a view to re-establishing his Nutrition Centre. He was again forced out of business by the J-e-I, and returned to Saudi Arabia.

[9]                In April 1998, the Applicant returned to Bangladesh to visit. He was shot at by J-e-I attackers while riding in a rickshaw. After this incident, the Applicant returned to Saudi Arabia.

[10]            After 1998, the Applicant never returned to Bangladesh.   

[11]            The Applicant came to Canada on April 29, 2001, and claimed refugee status on August 27, 2002.

DECISION OF THE BOARD

[12]            The Board determined that the Applicant was not a Convention refugee and was not a person in need of protection. There were two central grounds for the decision: (I) the Board found that the Applicant lacked credibility; and (ii) the Board found that an Internal Flight Alternative existed in Dhaka.

Credibility

[13]            The Board challenged three aspects of the Applicant's credibility:

(a)         omissions in the PIF narrative that were developed at the hearing;

(b)         inconsistencies between the PIF narrative, oral testimony, and the Port of Entry notes; and

(c)         implausibility of some explanations given by the Applicant.

[14]            The Board also challenged the Applicant's credibility by drawing a negative inference from his lack of subjective fear, based on his repeated returns to his home country from Saudi Arabia.

[15]            The Board felt there were omissions and the inconsistencies in the PIF narrative arising from the Applicant's return to Bangladesh in both 1992 and 1997. The PIF narrative does not state that the Applicant returned to his home country "on holiday;" the document says he did return to Bangladesh, but omits the words "on holiday." The Board drew an adverse credibility reference because of this omission.

[16]            The Board also found implausibilities in several explanations offered by the Applicant. The first related to his apparent lack of subjective fear, indicated by his three return trips to Bangladesh over a ten-year period from which the Board drew a negative inference. The Board found that the Applicant re-availed himself of the protection of the state of Bangladesh by returning in 1992, 1997, and 1998.

[17]            The Board found the Applicant's explanation that he was not aware he could claim refugee status in other countries to be implausible because the Applicant is well educated, with a Master of Science degree.

[18]            The Board also based implausibility findings on two previous claims made by the Applicant: an application for permanent residence in Canada, made from London, England, and refused on March 20, 2001; and a student visa application, made at an office in Buffalo, New York, and refused on November 15, 2001. The Board found that the Applicant should have made inquiries regarding options for gaining status in Canada, and the fact of his not having done so rendered his claim implausible. The Applicant claimed he did not know he could claim refugee status and so did not inquire as to whether he could apply.

[19]            The permanent residence application and the student visa application were not mentioned in the Applicant's PIF; the Board drew an adverse credibility inference from their omission.

[20]            The Board found that the cumulative effect of the omissions, the inconsistencies, and the implausibilities, demonstrated a lack of subjective fear, which had a negative impact on the Applicant's credibility.

Internal Flight Alternative

[21]            The Board also found that a viable IFA existed for the Applicant in Dhaka.

[22]            The Board found that both parts of the test as set out by Mahoney J. in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.) were met: (i) the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists; and (ii) conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for the claimant to seek refuge there.   

[23]            The Applicant provided the Board with a number of letters to link him to the BAL. The Board gave the letters little weight because they were general in nature and referred to incidents that happened over ten years ago, or undated incidents. The Board found that the letters were of limited value in assessing the Applicant's prospective fear and noted that all the incidents referred to in the letters occurred in the Applicant's home locality of Bagherat.

[24]            The Board also found that the Applicant has not been politically active since 1992, and all his political activity was limited to his home area. It found that the Applicant would have a viable IFA to Dhaka, where he attended university and worked without incident, prior to 1989. With a population of 10 million people, and an area of 360 square kilometres, Dhaka would provide anonymity for the Applicant. On the balance of probabilities, the Board concluded that the Applicant would not face a serious possibility of persecution in Dhaka.

[25]            Finally, the Board found that, given the Applicant's level of education, he would be able to find work in Dhaka.

ISSUES

[26]            The Applicant raises four issues:

(a)         did the Board err in law in misinterpreting the evidence before it when it determined that the Applicant lacked credibility due to alleged omissions and implausibilities;

(b)         did the Board err in law when it determined that the Applicant re-availed himself of state protection in Bangladesh;

(c)         did the Board err in law when it determined the delay in claiming refugee status demonstrated a lack of subjective fear; and

(d)         did the Board err in law in determining that Dhaka represented an IFA for the Applicant?

ARGUMENTS

General    

[27]            The Respondent submits that the Board's reasons are clear, cogent, and comprehensive, and the Applicant has failed to provide any persuasive arguments to suggest that the Board erred in its Decision.

Credibility

[28]            The Applicant points out that the Officer, when making her observations at the end of the hearing, said:

I will just go on with that. Okay, with regards to the claimant's credibility, I would like to note that he kept his Personal Information Form that was give to us beforehand. The claimant answered every question that he was asked. He did not appear to embellish anything today. He was very clear with his answers.

[29]            The Applicant submits that the Court has established clear standards for the assessment of credibility, which include:

(a)         when a claimant swears to the truth of certain allegations, this creates a presumption that the allegations are true, unless there are reasons to doubt their truthfulness (Pedro Enrique Juarez Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302);

(b)         failure to state grounds for questioning credibility, and related reasons, is a reviewable error (Ababio v. Canada (Department of Employment and Immigration), [1988] F.C.J. No. 250 (F.C.A.), Armson v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 800);

(c)         inferences of credibility must be based on evidence. If a tribunal bases its findings on inferences drawn from the evidence, the Court can determine whether the inferences were reasonably drawn. If the findings of plausibility are based on inferences not reasonably open to it, the Court can intervene (Frimpong v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 441 (F.C.A.));

(d)         if a tribunal misconstrues, or ignores evidence, and relies on the findings when making an adverse inference, the Court can intervene (Carlos Enrique Sangueneti Toro v. Canada (Minister of Employment and Immigration), [1981] 1 F.C. 652 (F.C.A.));

(e)         a tribunal should guard against over-zealousness when attacking the credibility of a refugee claimant, especially when the claimant testifies through an interpreter. (Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444).

Omissions

[30]            The Applicant submits that the Board made a number of errors in its assessment of the evidence with regard to the Applicant's credibility.

Holiday

[31]            The Applicant says that the Board erred in law in its assessment of the PIF omissions because there is no omission in the PIF. The PIF states that the Applicant returned to Bangladesh in 1997 to re-establish his business. The Applicant knew he could not stay in Saudi Arabia and used his holiday time to attempt to re-establish his business in his home country.

[32]            The Respondent counters that the Board was correct in its assessment of the omissions in the PIF with regard to the Applicant being on holiday in Bangladesh in 1992 and 1997. The Respondent elaborates on the omission for 1997, stating that the Applicant said, at his hearing that he returned for a holiday. In the PIF, the Applicant says he returned to Bangladesh in 1997 to re-establish his business.

[33]            The Respondent also submits that the findings, regarding omissions, were peripheral and not central to the Board's decision.

Previous Applications

[34]            The Applicant submits that the omission of the two previous applications from his PIF is not central to his refugee claim, and says further that he was never questioned about this omission. The Board found no plausible explanation for the omission; but the Applicant submits that, since he was never questioned about this omission, the "lack of plausible explanation" finding is patently unreasonable.

[35]            The Respondent replies that the Board did not err in drawing a negative inference from the Applicant's failure to mention in his PIF that he had made two previous applications, one for permanent resident status, and the other for a student visa. The Respondent says that PIF omissions can be considered in assessing credibility and cites Basseghi v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1867 (F.C.T.D.) at para. 33 which states that "it is incorrect to say that all the answers [in a PIF] should not be complete with all the relevant facts." The Respondent says that the previous applications to stay in Canada were relevant and important facts that should have been mentioned in his PIF.

[36]            The Respondent also takes the position that the Board was not obligated to put its concerns in this regard to the Applicant. The Respondent cites Singh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1724, for the following two points at para. 23:

(a)         to have a decision fail by reason only of the failure on the part of the Board member to put the contradictions to a represented applicant places an unwarranted burden on the Board; and

(b)         when the Applicant is questioned by his own counsel on the factual issues on which the Board made a negative finding of credibility, the Board is not required to further question the Applicant.

Implausibilities

[37]            In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732, the Federal Court of Appeal discussed the standard of review for Refugee Division decisions:

There is no longer any doubt that the Refugee Division, which is a specialized Board, 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 Board are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.

[38]            The Applicant submits that, with regard to implausibility, and credibility findings, the Court must look at Yada v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 37, which states at para. 25:

Where the finding of a lack of credibility is based upon implausibilities identified by the panel, the Court may intervene on judicial review and set aside the finding where the reasons that are stated are not supported by the evidence before the panel, and the Court is in no worse position than the hearing panel to consider inferences and conclusions based on criteria external to the evidence such as rationality, or common sense.

[39]            The Applicant further submits that a tribunal must proceed with caution and take into consideration the diverse cultures of refugee claimants. Actions that appear implausible by Canadian standards might be entirely tenable within the context of a claimant's background. (Divsalar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 875).

[40]            The Applicant says that the implausibility findings of the Board in this case are capricious and perverse and cannot stand because they were made without proper regard for the evidence.

Culminating Event

[41]            The Applicant argues that the 1998 shooting was the culminating event in his decision never to return to Bangladesh. He further says that the Board's findings ignored material evidence, such as his attempt to re-establish his business in 1997.

[42]            The Applicant says that the Board's conclusion regarding a lack of subjective fear ignored and failed to understand evidence presented to the Board. He says he attempted three times, over a ten year span, to re-establish his business in Bangladesh. The Board found it implausible that the Applicant would return three times from Saudi Arabia if he feared persecution in his home country. But the Applicant points to 1998 as the culminating event that made him decide to leave for good.

Failure to Inquire

[43]            With regard to the Board's finding that the Applicant should have known, or inquired, about refugee status, the Applicant says the Board assumed that everyone around the world should know about the refugee system and the Geneva Convention. The Applicant testified that he did not know he could claim refugee status; he was only informed of the possibility of claiming refugee status by an immigration officer at the Canadian border. The Applicant submits that there is nothing implausible in his explanation.

[44]            The Respondent submits that the Applicant's arguments with regard to the Board's plausibility findings are merely an attempt to have this Court re-weigh the evidence that was before the Board. The Applicant is educated and has ties to a major political party in Bangladesh. The Respondent submits that the Board's findings speak for themselves and there is nothing patently unreasonable in them.

Re-Availment

[45]            The Applicant also argues that the Board erred in law when it determined that the Applicant re-availed himself of the state protection of Bangladesh. He considers the 1998 shooting as the culminating event for his decision to leave Bangladesh. He has not attempted to return to Bangladesh since 1998. Therefore, he says the Board misunderstood the evidence before it.

[46]            The Respondent replies that the Board did not err in noting the returns to Bangladesh in 1992, 1997, and 1998, and considering re-availment. The Board simply did not believe that the Applicant was facing untenable circumstances when he repeatedly returned to Bangladesh. The Respondent submits that the Board was correct in finding that the Applicant would not have returned to the same place where he faced persecution, especially on three occasions and without exploring relocation alternatives prior to 1998. So there is nothing patently unreasonable about the Board's finding in this regard.

Delay in Claiming Refugee Protection

[47]            The Applicant also submits that the Board erred in law when it determined that his delay in claiming refugee protection demonstrated a lack of subjective fear. He says the Board merely ignored his reasonable explanation on this issue. He testified that he did not know he could get status in a country by claiming refugee status. He thought he could only immigrate as a permanent resident or as a student. He only found out about refugee status at the Canadian border from an immigration officer. As soon as the Applicant found out he could make a refugee claim, he did so (see Hue v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 283 (F.C.A.)). This court, in Saez v. Canada (Minister of Emploment and Immigration), [1993] F.C.J. No. 631, said, at para. 5:

First, delay in making a claim, while relevant, is not a decisive factor in itself. In finding the applicant lacked subjective fear on the basis of delay, the Board neglected to give sufficient weight to past torture and assassination.

[48]            On this issue, the Respondent submits that the Applicant claimed refugee status 16 months after entering Canada. His excuse for not making an earlier refugee claim was that he did not know such a claim was available to him. The Respondent submits that the Board acknowledged the Applicant's excuse, but, for clear reasons, did not accept the explanation.

Internal Flight Alternative

[49]            The Applicant's final submission is that the Board erred in law in finding that Dhaka represented a viable IFA. The Board's reasoning was threefold:

(a) the Applicant had not been politically active since 1992;

(b) the Applicant's political activity was limited to his home area; and

(c) the Applicant had a low political profile, so Dhaka would provide anonymity.

[50]            The Applicant says that the Board erred in law because it believed that a claimant actually has to be involved in politics in order to receive protection. He says it is perceived political opinion, and not active involvement, that is determinative. The Applicant is a known member of the BAL. When he returned to Bangladesh in 1997, he attempted to tell J-e-I members that all he wanted to do was re-establish his business. The J-e-I members did not believe him and attacked him. This is why perceived political opinion, not actual political activity, is the appropriate test.

[51]            The Applicant asserts that, with regard to a potential IFA, the Board ignored the fact that the BNP and the J-e-I, are now the ruling powers in Bangladesh. The Applicant identified the two groups as his agents of persecution and, with the BNP and the J-e-I as the ruling powers, the potential persecution is amplified.

[52]            The Respondent counters that the Board was correct in finding that the Applicant had a valid IFA in Bangladesh. The Applicant is merely asking the court to re-weigh the evidence before it, contrary to the deference required by Rasaratnam.

[53]            The Respondent submits that the Applicant has failed to provide any cogent arguments to suggest that the conclusion is patently unreasonable when the tests set out by Mahoney J. in Rasaratnam are applied.

[54]            The Respondent further submits that the BAL was in power when the Applicant faced persecution and that no major party can claim to have clean hands in Bangladeshi political violence. There is no reason to believe that either the BNP or the J-e-I would go after, or even find, the Applicant if he relocated to Dhaka.

ANALYSIS

[55]            It is possible to question some of the credibility findings and negative inferences drawn by the Board in this case, but on the central aspects of the Decision I cannot find that the Board was unreasonable, let alone patently unreasonable, in its conclusions.

Re-Availment

[56]            In the narrative portion of the PIF, the Applicant had the following to say about his final decision to leave Bangladesh:

10.            In April 1998 I went back to Bagherat to visit. I was along with Masud, one of friends (sic) travelling by Ricksaw ; suddenly encountered attack of some known jamat at about 10 pm (sic). They shot me two-three times but we ran away and took refuge in one of teacher's house (sic).

11.            After April 1998, I could not able travel (sic) to Bangladesh ever. I had to live in Saudi Arabia.

[57]            On this occasion, the Applicant was not actually shot, but was shot at.

[58]            The Applicant takes the position that, in considering re-availment, the Board did not really understand the Applicant's evidence and did not come to terms with the fact that this incident was a culminating event after which he made his final decision to leave Bangladesh.

[59]            The transcript of the hearing reveals that the Applicant was examined closely on this matter, and that he gave evidence to the effect that, when he had left Bangladesh on previous occasions, he had done so because he had feared for his life. Yet he returned three times.

[60]            Looking closely at the evidence that the Applicant gave on this issue, I cannot say that the Board reached a conclusion that could be questioned by any standard:

In the panel's view, if indeed the claimant was facing the untenable circumstances in Bangladesh that he described in his PIF narrative and testimony at hearing, it is reasonable to expect that he would be anxious to relocate to a country other than Saudi Arabia where he lived and worked as a temporary resident where he acknowledged he could not stay indefinitely and explore alternatives to gain permanent status in another country such as Canada. As well, the panel finds it implausible that the claimant would return three times to the same district in Bangladesh where he alleges he feared persecution and serious harm and continue his political activities, try to re-establish his business and visit on holiday, if he feared persecution and serious harm from the BNP and J-e-I.

The panel determines the claimant's behaviour and actions demonstrate a lack of subjective fear, which has a negative impact on his credibility.

[61]            The Applicant says that the Board imposed its own views on what would have been reasonable behaviour in the circumstance, and didn't look at the matter from the Applicant's perspective. What is more, the Applicant says that, if the Board is correct on this issue, it means that every time someone is at risk, they would have to leave the country immediately. Each person acts differently, says the Applicant, and the Board should not impose its own views on what it would be appropriate to have done in the circumstances.

[62]            In my opinion, that is not what the Board did on this occasion. The Board had to assess the Applicant's behaviour in light of the claim he made. The Applicant said that he feared for his life and left Bangladesh on four different occasions over an extended period in order to escape his persecutors. Yet he went back to the same location three times. What is more, he is an educated man, and he has a brother in Canada.

[63]            Based on the evidence provided by the Applicant, the Board's findings on re-availment and lack of subjective fear were not unreasonable or patently unreasonable. The Applicant just did not behave like someone who had a subjective fear of persecution, bearing in mind the kind of person he was, his repeated returns, and the resources available to him to place himself beyond the persecution he said he feared.

Delay

[64]            A similar picture emerges in relation to the Board's treatment of the Applicant's delays in making a refugee claim. The Applicant's answer was simply that he just didn't know about the refugee process and how to go about making a refugee claim in Canada or in other countries.

[65]            Yet the Applicant is a well-educated man with a Master of Science degree from the University of Dhaka who has explored various options for gaining access to Canada and who actually applied for permanent residence, a student visa and a visitors visa before making a refugee claim.

[66]            The Applicant says that the important issue is that he made efforts to get into Canada and to place himself beyond the reach of his persecutors.

[67]            But the findings of the Board on this issue are perfectly tenable and take into account all of the reasons offered by the Applicant about his delay in applying for refugee status:

Therefore, because of the claimant's delay in inquiring regarding various options for gaining permanent status and making an application for refugee status in Canada at the first possible opportunity and the lack of plausible reasons why he did not, the panel determines the claimant's behaviour and actions demonstrate a lack of subjective fear, which has a negative impact on his credibility.

[68]            The Applicant is not just a claimant who arrived in Canada and then delayed for a few months before he made his refugee claim. The Applicant is someone who says he suffered persecution sufficient to warrant refugee protection in 1989, 1992, 1997 and 1998. Yet he consistently returned to the location where he says he was persecuted, did not consider relocation and permanent status in a safe haven until 2001, applied for permanent residence and two visas, and then finally arrived in Canada in April of 2001, and claimed refugee status on August 27, 2002. He is also an educated man who knows how to explore options for gaining entry into Canada. His behaviour for over 10 years just doesn't communicate a sense of urgency or real fear of persecution, and the Board should not be faulted for picking up on these points and finding the Applicant's "ignorance" explanation for the delay implausible.

Internal Flight Alternative

[69]            The Applicant's own evidence was that he had not been politically active in Bangladesh since 1992. He did not have a high political profile. There was no evidence to suggest that he would be pursued if he went to Dhaka other than the Applicant's bare assertions that his persecutors had networks everywhere and could find him. There was no evidence that they were looking for him or that he was in a different position from anyone else who, at some time in the past, had done things for the Awani League. His past involvement had been purely local.

[70]            The Board considered the relevant factors and took into account the position advanced by the Applicant. Objectively speaking, it just didn't make sense that the Applicant would be targeted if he returned to Dhaka and, as an educated man who had attended university and worked in Dhaka without incident in the past, there was no serious possibility of persecution or serious harm if he returned to Dhaka, and it was not unreasonable in all of the circumstances for him to seek refuge in Dhaka.

[71]            It is, of course, always possible to take issue with and find fault with a decision. But looking at this Decision as a whole, and the principal aspects of the claim, the Board's conclusions were tenable and I find no reviewable error.

ORDER

THIS COURT ORDERS that

1.          This Application for judicial review is dismissed.

2.          There are no questions for certification.

   "James Russell"

JFC

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       IMM-9802-03

STYLE OF CAUSE:                                       RAFIQUL ISLAM SHAIKH v. MCI

PLACE OF HEARING:                                             Toronto, Ontraio

DATE OF HEARING:                                               OCTOBER 20, 2004

REASONS FOR ORDER:                                        RUSSELL J.

DATED:                                                          January 19, 2005

APPEARANCES:

SOLICITORS OF RECORD: