Date: 20050311
Docket: IMM-5515-04
Citation: 2005 FC 353
Ottawa, Ontario, this 11th day of March, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ATAUR RAHMAN SARKER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Ataur Rahman Sarker, the Applicant, is a citizen of Bangladesh who claims a well-founded fear of persecution by the police and members of a rival party, the Awami League ("AL") by reason of his political activities as a member of the Bangladesh Nationalist Party ("BNP").
[2] In a decision dated June 2, 2004, a panel of the Immigration and Refugee Board, Refugee Protection Division ("the Board"), determined that the Applicant was not a Convention refugee or person in need of protection. The Applicant seeks judicial review of that decision.
Issue
[3] The sole issue in this application is whether the Board erred in determining that the Applicant had an Internal Flight Alternative ("IFA") available to him outside of Bogra, his home town in Bangladesh.
Analysis
[4] The key decision of the Board was made with respect to the existence of an IFA. Here, the Board found that the threat of harm to the Applicant by certain AL goons is of a localized nature, and could be avoided if he relocated outside Bogra, and is reduced in any case because the AL is no longer in power. The Board also found that there is no more than a mere possibility that the Applicant would face persecution by the police in a locale other than Bogra upon return to Bangladesh.
[5] In this case, the Applicant acknowledges that an IFA finding that was reached without error by the Board is determinative of the matter. I agree. This is because, whether under s. 96 or s. 97 of the IRPA, a claimant must demonstrate that he cannot avoid any persecution that he may be exposed to in his home location by relocating to another region of his country of origin. A finding that an IFA exists is, in essence, a determination by the Board that a claimant will not be subjected to persecution in the identified IFA.
[6] There was some discussion by the parties as to what inferences, if any, could be drawn in a situation where the Board makes an IFA finding but does not make a clear finding on a claimant's risk of persecution in his home region. In this case, there is no clear finding by the Board that the Applicant faced a well-founded fear of persecution in Bogra. Thus, the Applicant submits that the inference should be drawn that the Board has implicitly conceded that that Applicant has a well-founded fear of persecution in Bogra (Arunachalam v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1091 (F.C.T.D.)).
[7] Whether the Applicant is correct in this assertion is not, in my view, important or necessary for this application. The question of the existence of an IFA is a separate component of the Board's analysis that can stand alone (Tharmaratnam v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 92 (F.C.T.D.)). Put simply, where an IFA is found, a claimant is not a refugee or a person in need of protection (Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (F.C.A.), Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.)). When looking at the existence of an IFA, the Board could find that the Applicant faced a risk of persecution in Bogra, the Board could assume (without finally determining the question) that he faced persecution or it could ignore the whole question. As long as:
(a) The Board applied the correct test to its IFA analysis; and
(b) Its conclusion on the existence of an IFA was not patently unreasonable, in the sense that it is unsupported by the evidence (Chorny v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1263 F.C.)), Charway v.Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 701 (F.C.));
Its decision should stand.
[8] In this case, the Board examined the application of an IFA to the situation of the Applicant under both s. 96 and s. 97 of the IRPA. Under s. 96, the Board examined whether the claimant would have a well-founded fear of persecution in the IFA and whether it is reasonable to expect him to relocate to the IFA. Under s. 97, the Board, in this case, stated that it only need consider whether the IFA is: (i) reasonably accessible to the claimant; and (ii) not a locale where the claimant would face a serious possibility of risk to life, or risk of cruel or unusual punishment. The Applicant does not raise an issue on the Board's approach to making its IFA determination. Nor does the Applicant assert that the Board erred by not considering whether the IFA was reasonably accessible to him.
[9] Thus, the determinative question is whether the Board's IFA decision was supported by the evidence. In my view, it was.
[10] The Applicant submits that the Board failed to take into account the real nature of the Applicant's fear, that being his fear that the AL goons could bribe the police wherever he was. In his submission, the Board failed to specifically address the documentary evidence that shows the corruption of the police. I do not agree that evidence or the true nature of the claim was ignored by the Board.
[11] With respect to the IFA, the Applicant's testimony was not that he feared the AL goons outside Bogra but that he feared the police. He referred to the outstanding warrant and to police corruption. The Board, understandably in my view, turned to an analysis of whether that fear of the police was well founded outside of Bogra.
[12] In its analysis, the Board acknowledged that the documentary evidence showed the police in Bangladesh are used for the political purpose of harassing members of opposition parties. However, the Board stated that, since the BNP are now back in power, this is no longer an issue of concern for the Applicant. The Board stated that it preferred the documentary evidence that the police align themselves with whoever is in power, rather than the Applicant's evidence that many of the police in the districts are still working with AL goons. The Board stated that its reasons were that it "prefers the documentary evidence as it comes from neutral sources with no interest in the outcome of these proceedings." From this, I conclude that the Board was aware of and dealt with the essence of the Applicant's claim.
[13] The Applicant also submits that the Board did not consider, in the context of its IFA analysis, why the AL goons were looking for him. He states that, "Given the centrality of the reason why the Awami League were seeking out the Applicant to the internal flight component of the claim, it is essential that the Board refer to this evidence and explained (sic) why the Board rejected the evidence of the Applicant on this point in disposing of this claim".
[14] In considering this argument, I note first that the Board does refer to this evidence of the Applicant. In its reasons the Board states:
He fears AL goons, in particular Mohom and his associate Robin. These individuals want the claimant to sign over his interest in a shopping mall in Bogra to them.
[15] Although this was not referred to separately and again in the IFA analysis section of the decision, it is clear that the Board considered this evidence. Further, when questioned about the possibility of the AL goons coming after him if he were to leave Bogra, the Applicant's testimony was that these goons, at least for the present, would not find him (CTR p. 950).
Conclusion
[16] In conclusion, when read as a whole, the decision is supported by the evidence. I am not persuaded that the Board ignored or failed to deal with the essence of the Applicant's claim. The Applicant has failed to demonstrate a reviewable error in respect of the determinative IFA finding. The error with respect to the Applicant's continuing political profile is not material to the decision.
[17] The Applicant proposes that I certify the following question:
In a refugee protection determination by the Refugee Protection Division of the Immigration and Refugee Board, where the internal flight alternative is considered without an explicit determination on the risk to the claimant in the home locality of the claimant, is the explicit finding that there is an internal flight alternative a concession of a well-founded fear of persecution in the home locality of the claimant?
[18] In my view, this question is not determinative of the application before me. Therefore, I decline to certify it.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review is dismissed; and
No question is certified.
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5515-04
STYLE OF CAUSE: Ataur Rahman Sarker v. the Minister of
Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: March 8, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: March 11, 2005
APPEARANCES:
Mr. David Matas FOR APPLICANT
Ms. Nalini Reddy FOR RESPONDENT
SOLICITORS OF RECORD:
Barrister & Solicitor FOR APPLICANT
Winnipeg, Manitoba
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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