Mukharji v. Canada (Minister of Citizenship and Immigration), 2004 FC 721

Date: 20040521

Docket: IMM-2528-03

Citation: 2004 FC 721

Ottawa, Ontario, May 21, 2004

Present:           THE HONOURABLE MR. JUSTICE BEAUDRY                                    

BETWEEN:

                                                             DEBU MUKHARJI

                                                                                                                                            Applicant

                                                                           and

                                               THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of the negative decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) dated March 13, 2003, wherein the Board determined that the applicant was not a Convention Refugee nor a person in need of protection.

ISSUES

[2]                The applicant raises two issues on judicial review:

1.         Did the Board make an unreasonable error in concluding that the applicant's evidence and testimony lacked credibility?

2.         Did the Board err in law by failing to consider the totality of the evidence and drawing patently unreasonable inferences from the evidence in finding that the applicant did not face a serious possibility of persecution as a Hindu in Bangladesh?

[3]                For the following reasons, the application shall be dismissed.

BACKGROUND

[4]                The applicant is a 41-year old male, Hindu citizen of Bangladesh. The applicant claims to have a well-founded fear of persecution at the hands of the Muslim Jamaat-I-Islami (JI) fundamentalists and terrorists because of his religion and perceived political opinion. He left Bangladesh on March 9, 2001, and travelled to Canada via the United States, where he made a refugee claim.

[5]                The applicant claims that he is at risk of serious harm in Bangladesh as he offended JI fundamentalists when, in his capacity as a development officer on a Tea Estate, he told them to cease building houses and a mosque on a far side of the Estate. After receiving threats from the fundamentalists, the applicant was instructed by his manager to submit a written complaint to the Police Outpost, yet the officer on duty refused to take the complaint and stated he needed permission from his superior.

[6]                The applicant returned to the site in September of 2000 with eight other workers and attempted to stop the illegal construction, but they were chased and beaten with axes, knives and sticks. The applicant again returned to the Police Outpost but the officer on duty refused to take a written complaint as he was a Muslim and the mosque was a sentimental issue. The applicant then took his written complaint to the Fatikchori Police Station, where an officer began an investigation and sought relevant documents from the manager in January 2001. The applicant and the head clerk met with police to discuss the situation, and the police said they would try to solve the problem. The applicant ran into JI members in the lobby of the police station, and they surrounded him in the parking lot and threatened to kill him, as he had involved the police in the matter. He returned to the Estate and informed the manager of the threats.

[7]                The applicant was informed in January 2001, that a public meeting of the Mosque Protection Committee had been held and the applicant had been declared an enemy of Islam. On February 15, 2001, the applicant alleges that he was kidnapped from his jeep and blindfolded, tied with rope, punched and had a knife held to his throat. The applicant was ultimately rescued by 20 workers from the estate, as the manager was informed of the incident and sent help. He did not report this incident to the police as he insists that the police will do nothing to protect him.

[8]                The applicant claims that the JI fundamentalists ransacked his home shortly thereafter, so he left the estate for his older brother's home in Dhaka. On February 24, 2001, JI men visited his brother's house when he was not home and told the housekeeper that they would find the applicant and kill him. Consequently, his brother gave him a false passport, an airline ticket and $1,000 on March 9, 2001, and the applicant arrived in Canada and claimed refugee status.

BOARD'S DECISION

[9]                The Board determined that the applicant was not a Convention refugee as he did not present sufficient credible or trustworthy evidence in support of his claim of a well-founded fear of persecution for a Convention ground in Bangladesh. The Board also determined that the applicant was not a person in need of protection as his removal to Bangladesh would not subject him personally to a risk to life or to a risk of cruel and unusual treatment or punishment, and there were no substantial grounds to believe that his removal to Bangladesh would subject him personally to a danger of torture.

[10]            The Board stated that "credibility and the well-foundedness (sic) emerged as the determinative issues". Firstly, the Board indicated that the applicant arrived in Canada with no identity or travel documents, and the documents produced at the hearing were almost all obtained after he arrived in Canada. He provided no photo identification to link him to the documents he did produce, and the Board rejected the explanation that he did not have time to get a legitimate passport as he fled in a hurry. The Board indicated that there was no evidence adduced that there was an impediment to getting a legitimate passport, and it felt that if his brother had time to contact a smuggler and get false documents and a plane ticket, then there was sufficient time to obtain real documents.

[11]            The Board also found that the documents the applicant did produce were questionable, as it was suspect that the applicant would have no identity documents in Bangladesh, and his birth certificate, the only document that identified him as Hindu, was registered by his brother 40 years after the fact, and after his arrival in Canada. As well, the letters from his employer did not mention the religious conflict with the Muslim fundamentalist group, the construction of a mosque, or the applicant's difficulties with the police. The Board drew an adverse inference from the applicant's selective presentation of documents of little probative value and the absence of a reasonable explanation for his failure to exercise due diligence in attempting to provide objective evidence in support of the central element of his claim. The fact that the applicant provided no documentary evidence of his written complaints to the police station, no attestations from witnesses of his abduction on February 15, 2001, or the death threats he received on February 24, 2001, no attestations from the head clerk describing his difficulties at the Tea Estate, or any attestations that he was a practising Hindu, especially as he stated he could have provided a written attestation from a temple in Toronto, was unsatisfactory to the Board.

[12]            Secondly, the Board noted the applicant's explanation of the events that precipitated his departure were not satisfactory and were marked with inconsistencies, contradictions and implausibilities. His oral evidence respecting the structures being erected illegally on the estate lands contradicted evidence in his Personal Information Form (PIF), as well as the letters from his employer. When confronted with such discrepancies, he was not able to satisfactorily explain why his evidence had changed, and the Board determined he fabricated this explanation in order to extricate himself from a contradiction. The applicant also gave conflicting evidence as to why he had been targeted by the illegal Muslim occupants, stating firstly that it was because he had been sent to enforce the eviction, then stating that his manager sent him because he was a Hindu. The Board found that the assertion that the manager discriminated against him and deliberately put him in harm's way was contradicted by the applicant's assertion that the manager formed a posse of 20 people to rescue him from his alleged abductors. The Board found such evidence and explanations to be embellishments fabricated to bolster his claim.

[13]            The Board also found that the applicant's evidence that he was abducted and assaulted by JI thugs, yet did report the abduction to the police, was not credible. The applicant's assertion that the police would do nothing to help him was refuted by the applicant's own evidence that the police had investigated his initial complaint involving the illegal settlement on the estate. The Board found that the applicant had not provided satisfactory evidence of his alleged religious identity as an anti-Muslim Hindu, or the alleged incidents depicted by the applicant. The Board consequently made a negative credibility finding and determined that the applicant did not leave Bangladesh due to fear for his safety at the hands of JI fundamentalists.                                                                                                                                   

[14]            Finally, the Board determined that though the Bangladesh Nationalist Party (BNP) was in power and some members of the Hindu minority had been the victims of religiously motivated violence, there was no evidence that the present government persecuted the Hindu minority. The Board determined that the applicant had a minimal profile as a Hindu and it was unlikely he would attract the attention of Muslim extremists and face more than a mere possibility of serious harm at their hands. Furthermore, the applicant did not demonstrate that State protection was not available to him, and the evidence deemed credible was that the applicant had an accessible and reasonable flight alternative in Dhaka.

STANDARD OF REVIEW

[15]            The appropriate standard of review on findings of fact and credibility is patent unreasonableness.    The Federal Court of Appeal has determined that the Board, as a specialized tribunal, has complete jurisdiction to determine the credibility of testimony. As long as the inferences drawn by the Board are not so unreasonable as to warrant intervention, its findings are not open to judicial review (Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 at pages 316 and 317 (F.C.A.)).

ANALYSIS

Did the Board make an unreasonable error in concluding that the applicant's evidence and testimony lacked credibility?

[16]            The applicant submits that the Board erred in law by casting a nebulous cloud over the applicant's evidence, without making clear and cogent findings regarding the applicant's identity. The Board stated at page 8 of its decision that:

[...] Even putting aside the deficiencies in the claimant's documentation and accepting on a balance of probabilities that the claimant is who he says he is, that he is a citizen of Bangladesh, that he was employed at the tea estate and that he is a Hindu, I find that the claimant was unable to provide a satisfactory account of events that precipitated his decision to leave Bangladesh. [...]

It is submitted that the Board appeared to have accepted the applicant's identity on a balance of probabilities and erred in law by casting a cloud of suspicion over his evidence without making a clear negative finding (Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.)).

[17]            The applicant submits that the Board must presume that sworn testimony is true unless there is good reason to question its veracity. As well, refugee claimants need not establish any element of their claim beyond a reasonable doubt, but only on a balance of probabilities, and there is no requirement that a refugee claimant must present independent corroborative evidence to support his or her allegations (Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302 (C.A.)). The applicant answered all questions in a straightforward and credible manner and the Board has engaged in nit-picking, with no good reason to question the veracity of the applicant's evidence.

[18]            The applicant submits that, in particular, the Board unreasonably drew a negative inference from his employment letters, and ignored the reasonable explanation for their content, as there was a new manager in 2002 who did not know the applicant, and his brother did not want to reveal the true reason for requesting the letter. The Board also erred in drawing a negative conclusion from the lack of attestations from the kidnapping witnesses, head clerks, and his brother, as such documents would have been dismissed as self-serving and given little weight.

[19]            The applicant submits that he did not contradict himself regarding the timing of the construction of the mosque and the construction of the houses, as the applicant did not initially say that homes were the first things to be erected on the site. As well, the applicant did not contradict himself by saying that there were no Muslim Officers at the Estate, then saying that there were Muslim Officers but he was targeted to deal with the situation because he was Hindu. The Board misunderstood the evidence, as he simply stated he was the only officer sent to the site, and thus no Muslim officers were sent to the site. Furthermore, it was patently unreasonable for the Board to draw a negative inference from the applicant's failure to inform police of his alleged abduction, as there is widespread targeting of Hindus with the acquiescence of police and authorities.   

[20]            The respondent submits that the Board did not err in finding that the applicant's evidence lacked credibility, as the applicant failed to provide satisfactory evidence of his alleged religious or political identity as an anti-Muslim Hindu and he failed to provide trustworthy evidence to sustain his general allegations. The Board correctly noted several inconsistencies and contradictions in the applicant's story, ranging from why he did not have a valid passport, to his failure to provide credible evidence respecting the events that caused him to leave Bangladesh. The respondent submits that the Board expressed in clear and unmistakable terms why they did not accept the applicant's credibility. The onus rested on the applicant to introduce the evidence essential to establish his claim, and the applicant failed to meet this onus.       

[21]            In answer to the applicant's arguments, the respondent submits that the applicant clearly provided contradictory evidence in his PIF and oral testimony with regard to what structures were being built on the estate, and the order in which they were built. As well, the Board did not misapprehend evidence on why the applicant was chosen to deal with the matter, and not other Muslim officers on the Estate. The Board simply did not believe the applicant's evidence.

[22]            The respondent submits that the Board is entitled to decide adversely with respect to an applicant's credibility on the basis of contradictions and inconsistencies in the claimant's story and other evidence before the Board, or on the basis of the implausabily of the applicant's testimony alone (Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.)). A finding of lack of credibility made by the Refugee Division which is based on internal problems in the applicant's testimony is the heartland of the discretion of triers of fact, and this Honourable Court should not interfere.

[23]            I am in agreement with the respondent on this issue, in that the Board's negative credibility finding was not patently unreasonable. Firstly, I find the applicant is incorrect in his assertion that the Board accepted his identity on a balance of probabilities and thus erred in law by casting a cloud of suspicion over his evidence without making a clear negative finding. The quote used by the applicant is taken out of context and is by no means an acceptance of the applicant's identity. I find that the Board's conclusions on this matter were reasonably detailed and clear, and were based primarily on the contradictory testimony of the applicant (Hilo, supra).

[24]            Furthermore, I find that it was not unreasonable for the Board to question the applicant's identity and draw a negative credibility inference when the applicant had no picture identification to connect him to his other identity documents. It has been confirmed in this Court that travel documents are relevant to the issue of credibility (see Museghe v. Canada (MCI), 2001 FCT 1117, [2001] F.C.J. No. 1539 (T.D.) (QL), at paragraphs 19-22), thus a lack of valid documentation can validly affect a Board's credibility determinations. It was not patently unreasonable for the Board to determine that the applicant failed to provide satisfactory evidence of his alleged religious or political identity as an anti-Muslim Hindu or that he failed to provide trustworthy evidence to sustain his allegations, as there were several inconsistencies and contradictions in the applicant's story, ranging from why he did not have a valid passport, to his failure to provide credible evidence respecting the events that caused him to leave Bangladesh.

Did the Board err in law by failing to consider the totality of the evidence and drawing patently unreasonable inferences from the evidence in finding that the applicant did not face a serious possibility of persecution as a Hindu in Bangladesh?

[25]            The applicant submits that the Board failed to consider the documentary evidence respecting the widespread violence against Hindus in Bangladesh. There is a wealth of documentary evidence from such sources as Amnesty International and BBC News that Hindu families have fled for India due to widespread violence against their community since the election of the Bangladesh Nationalist Party (BNP). The applicant submits that the Board erred in law when it failed to have regard to the totality of the evidence, and the Board's findings of implausibility were made without regard to the actual country conditions which affect Hindus in Bangladesh, and are thus patently unreasonable (Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration, [1998] F.C.J. No. 1425 (T.D.) (QL)).   

[26]            The respondent submits that the applicant's arguments are meritless, as it is clear that the Board had regard to all the information before it including the documentary evidence supplied respecting the general conditions of Hindus in Bangladesh. It was noted by the Board that the Constitution allows one to practice the religion of one's choice, though there have been reports of violent incidents against Hindus. The Board noted that the Government had set up special committees to investigate the harassment of Hindus. The Board also considered the applicant's contention that now that the BNP was in power he was less likely to receive protection, and though it recognized that some Hindus had been the victim of religiously motivated violence, it found that there was not satisfactory evidence to suggest that the BNP persecuted the Hindu minority. As the applicant had a "minimal profile" as a Hindu, the Board correctly determined that was unlikely he would attract the attention of Muslim extremists or face more than a mere possibility of harm at their hands.

[27]            The applicant responds that government committees established to investigate crimes against Hindus are irrelevant to the fact that there is widespread systematic persecution of Hindus in Bangladesh, and the Board's findings were thus made without regard to the actual country conditions.

[28]            Finally, the respondent submits that the Board is not required to address every document put before it and as long as the evidence supports the Board's findings, the Board is presumed to have considered the evidence before it (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (QL)). In this case, the Board reviewed the evidence and chose to rely on only the most recent and reliable sources. As well, the applicant failed to provide clear and convincing proof of the state's unwillingness or inability to adequately assist him (Canada (Minister of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.)).

[29]            The applicant responds that documentary evidence clearly demonstrates that the current government is actively involved in the persecution of Hindus. Amnesty International stated in December 2001 "None of the governments in Bangladesh since its independence has taken any decisive steps to protect Hindus in the face of potential threats, including the current attacks". Thus, the applicant submits that the Board's findings are erroneous and contrary to the evidence before it.

[30]            I must again agree with the respondent on this issue. In this case, the Board made note of documentary evidence depicting both the problematic events taking place in Bangladesh since the election of the BNP, such as physical attacks and property damage, and government reaction, as well as positive steps such as the assembling of committees to investigate such religious violence. It has been established by the Federal Court of Appeal that unless an applicant can demonstrate that the Board did not consider all the evidence before it, the Board is assumed to have weighed and considered all the evidence that is before it (Florea, supra). I find that the applicant has not sufficiently demonstrated that the Board ignored documentary evidence in reaching its conclusion.

[31]            Finally, I must note that as the Board found the applicant not to be credible and provided detailed reasons in support of its findings based on the evidence, there is no clear ground for intervention. In fact, the Board's negative credibility finding renders this second issue somewhat irrelevant. To establish a fear of persecution, an applicant must meet both requirements of the established bipartite test, with the demonstration of both a subjective fear and an objective fear of persecution (Canada(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at 723). The applicant has not met the requirements of this test. In Tabet-Zatla v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1778 (T.D.) (QL) at paragraph 6, Tremblay-Lamer J. cites paragraph 10 in Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695 (T.D.) (QL) as follows:

The lack of evidence going to the subjective element of the claim is a fatal flaw which in and of itself warrants dismissal of the claim, since both elements of the refugee definition -- subjective and objective -- must be met.

Here, as the Board determined that the applicant was not credible, and thus there was no subjective basis for his claim, objective evidence of problems in Bangladesh are irrelevant, as the Board has found no justification for the applicant's claim of fear of persecution. Hence, the lack of a subjective element is sufficient for this persecution claim to fail.

CONCLUSION

[32]            For the reasons set out above, the application for judicial review is dismissed.

[33]            No question for certification was raised by counsel. None will be certified.

                                               ORDER

THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.

            "Michel Beaudry"            

Judge

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                                       IMM-2528-03

STYLE OF CAUSE:                         DEBU MUKHARJI v.

MINISTER OF CITIZENSHIP AND

IMMIGRATION

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   April 28, 2004

REASONS FOR ORDER

AND ORDER BY:                                         THE HONOURABLE MR. JUSTICE BEAUDRY

DATED:                                                          May 21, 2004

APPEARANCES:

Paul Vander Vennen                                          FOR THE APPLICANT

Pamela Larmondin                                             FOR THE RESPONDENT

SOLICITORS OF RECORD:

Paul Vander Vennen

Toronto, Ontario                                               FOR THE APPLICANT

Morris A. Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario                                               FOR THE RESPONDENT