Date: 20040805
Docket: IMM-5187-03
Citation: 2004 FC 1074
Toronto, Ontario, August 5th, 2004
Present: The Honourable Mr. Justice Kelen
BETWEEN:
KAMAL AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated May 29, 2003, which determined that the applicant is not a Convention refugee or a person in need of protection, for negative credibility reasons.
FACTS
[2] The applicant is a 36 year old citizen of Bangladesh who alleges a well-founded fear of persecution in Bangladesh because of his activism on behalf of the Jatiya Party ("JP"). He alleges a fear of the police, and of goons acting for the Awami League ("AL") and the Bangladesh Nationalist Party ("BNP").
[3] The applicant made a previous refugee claim on similar grounds which was denied on May 6, 1997; leave for judicial review in this Court was denied. After the failed claim, the applicant allegedly left Canada in May 1999 without informing Canadian authorities of his departure. The applicant also has two outstanding applications for permanent residence on file with Citizenship and Immigration Canada ("CIC").
[4] The applicant bases this refugee claim on the following alleged events: (1) that on June 1, 1999, the applicant was assaulted and threatened by AL goons, some of who were former members of the BNP; (2) the goons also attacked the applicant's home and vandalized his family's property; and (3) that two days later police made an unsuccessful attempt to arrest the applicant. When this failed, BNP goons now working for the AL fabricated charges which led to the arrest of the applicant's mother and brother-in-law.
[5] The applicant alleges that he fled Bangladesh on June 22, 1999 for the United States. He remained illegally in the U.S. for about two years, making a claim for asylum there in January 2001. He re-entered Canada on April 18, 2001 upon making this refugee claim.
[6] After the Board heard the applicant's claim, it rejected his testimony "as being fraught with inconsistencies, implausibilities, and attempted deceptions". The Board concluded that the applicant had failed to present persuasive evidence that he would be persecuted in Bangladesh as a JP activist. The essence of the Board's decision is found at page 12 of its reasons:
[...]
When the totality of the evidence is assessed, I find the claimant to be totally devoid of all credibility and that his lack of credibility has undermined his subjective fear. Furthermore, I have no persuasive documents before me, which would give the slightest indication that the JP is a political force warranting that members of the party be persecuted. In fact, the absence of any documentary evidence indicating such persecution rebuts the claimant's allegations. Even if this were not the case and there existed objective evidence to that effect, the presence of objective evidence would not have relieved the claimant of the burden to prove that he had a subjective fear that he would be persecuted. The claimant's lack of a subjective fear alone would prove fatal to the claim and warrants rejection on that basis alone. However, in this case I find both the requisite subjective and objective elements for a well-founded fear of persecution to be absent from this claim. [Notes omitted]
[7] The Board identified the following difficulties with the applicant's evidence:
(1) the Board did not believe that the applicant returned to Bangladesh in 1999 as he claimed, since he was unable to state the time line surrounding his return with consistency; the Board found that the applicant contradicted his evidence in stating that he left Canada on May 29, 1999, instead of May 20, 1999;
(2) during oral testimony the applicant contradicted his PIF statement by stating that he went to visit his uncle in hospital on June 1, 1999, instead of his cousin;
(3) the Board did not believe that there was a connection between the property dispute involving his family and the alleged acts of persecution since the newspaper article he presented as evidence was published on May 5, 1999, and the applicant did not leave Canada until May 29, 24 days after the article appeared;
(4) the allegation of false charges brought by BNP goons was not credible since the AL was the governing party at the time; it was highly improbable that the BNP would be persecuting the applicant and his family at a time when the AL was in power;
(5) the applicant had provided false evidence to CIC when he applied for permanent residence on May 6, 1999, and his oral testimony contradicted the CIC records;
(6) the applicant's delay in making a refugee claim was at odds with a well-founded fear of persecution;
(7) the Board found the applicant's certificate of membership in the JP, dated October 1, 2003, to be fraudulent because he had previously falsified evidence to support the claim that he was a JP activist, and because the certificate stated his persecutors to be BNP and Jamat miscreants without mentioning the AL; in addition the applicant's other evidence never asserted Jamat as a persecutor; and,
(8) the applicant was unable to produce any corroborating documents to account for his whereabouts after May 6, 1999, i.e. his departure from Canada or his time in Bangladesh.
ANALYSIS
[8] The issue in this case is whether the Board rejected the credibility of the applicant in a manner that cannot be supported by the evidence. The applicant submits that the Board made four perverse findings of fact, and either ignored or misconstrued the evidence before it. The applicant submits that the Board rejected all reasonable explanations he provided in response to concerns raised at the hearing, without explanation in clear and unmistakable terms.
[9] The respondent submits that the credibility findings of the Board are entitled to great deference. The respondent submits that the Board properly considered all of the evidence on record, and argues that the applicant merely disagrees with the Board's weighing of the evidence. The respondent submits that the Board's reasons demonstrate that its credibility finding was not made in an arbitrary manner.
[10] It is well-established that the standard of review applicable to the Board's findings of fact, and assessment of credibility is patent unreasonableness. This Court will not substitute the Board's decision with its own, except when the Board's decision is patently unreasonable. See Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.), and De (Da) Li Chen v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 161 (F.C.A.).
[11] I have reviewed the certified record, including the transcript of the hearing. I have reviewed the inconsistencies and implausibilities noted by the Board, and find only one of them to be patently unreasonable. The Board held that when questioned by the RPO the applicant stated that he left Canada on May 29, 1999, instead of May 20, 1999. The transcript of the hearing shows that the applicant stated that he left Canada on May 20, 1999. Accordingly, this finding of fact, which goes to credibility, is patently unreasonable. However, in my view this error by the Board is not sufficient, in itself, to justify overturning the decision of the Board. The Board provided several other reasons, irrespective of this issue, for rejecting the credibility of the applicant.
[12] The applicant raised three other allegedly erroneous findings of fact which affected the credibility finding:
(1) that the BNP goons would be persecuting the applicant on behalf of the AL;
(2) that the applicant lied to CIC about his marriage status on his May 1999 H & C application; and,
(3) the authenticity of a certificate of membership in the Jatiya Party dated 10.01.03 (sic).
[13] While this Court may have concluded differently than the Board on these issues, the Board has complete jurisdiction to weigh the evidence and determine the plausibility of testimony. I find that the applicant's complaints, with the exception of the misstated date of departure from Canada, pertain to the Board's rejection of explanations proffered when the Board took issue with his evidence. I conclude that it was reasonably open for the Board to reject these explanations on the evidence. The Board provided clear and adequate reasons for doing so. See Hilo v. Canada (1991), 15 Imm.L.R. (2d) 199 (F.C.A.), and Armson v. M.E.I. (1989), 9 Imm.L.R. (2d) 150 (FCA). Accordingly, this application for judicial review will be dismissed.
[14] I note that the Board rejected the credibility of the applicant for several other reasons not challenged by the applicant at the hearing. Counsel for the applicant made a valiant effort. Since this applicant had already failed as a refugee claimant, it was important that the second claim be proven in a clear manner, which it was not.
[15] Neither counsel recommended certification of a question. No question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael L. Kelen"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5187-03
STYLE OF CAUSE: KAMAL AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 4, 2004
REASONS FOR ORDER
AND ORDER BY: KELEN, J.
DATED: AUGUST 5, 2004
APPEARANCES BY:
Ian Wong For the Applicant
Leena Jaakkimainen For the Respondent
SOLICITORS OF RECORD:
Ian Wong
Toronto, ON For the Applicant
Morris Rosenberg
Toronto, ON
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040805
Docket: IMM-5187-03
BETWEEN:
KAMAL AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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