Date: 20040323
Docket: IMM-2659-03
Citation: 2004 FC 434
Ottawa, Ontario, this 23rd day of March, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
SYED IFTAKER MASUD
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Syed Iftaker Masud came to Canada in 2001 claiming that he was persecuted in his native Bangladesh on both political and religious grounds. A panel of the Immigration and Refugee Board dismissed his claim for refugee status because it did not believe that he was actually in danger of persecution. The Board concluded that Mr. Masud's own political party was in power at the time he left Bangladesh, that his evidence was inconsistent and that there was no proof that he would be sought out or persecuted by his opponents if he returned.
[2] Mr. Masud argues that the Board's conclusions were at odds with the evidence before it and asks for a new hearing before a different panel of the Board. I agree that the Board erred and that this application for judicial review should be allowed.
I. Issue
[3] There is just one issue here: Were the Board's conclusions supported by the evidence?
II. Analysis
[4] The Board made a number of significant findings that led to its conclusion that Mr. Masud's refugee claim was unproved. First, the Board found that the political party that Mr. Masud supported (the Awami League) was in power in 2001 and, therefore, that he should not have feared persecution from the government. However, Mr. Masud testified that he did not believe that state protection was adequate and pointed to documentary evidence confirming that the government was unable to protect its supporters from opposition attacks. The Board did not mention that evidence.
[5] Second, the Board found that the event that precipitated Mr. Masud's departure from Bangladesh was a violent assault on him by student members of the Jamat-e-Islami in January 2001. It noted that this event was not mentioned in Mr. Masud's Personal Information Form or in the notes taken at the Port of Entry. From this omission, as well as some minor discrepancies in Mr. Masud's evidence, the Board drew a negative inference about his credibility. However, in Mr. Masud's testimony and written narratives he made it clear that it was an attack on his home and a death threat in March 2001 that caused him to flee Bangladesh. The Board did not mention the March attack. Mr. Masud gave details of that event and other assaults in his written evidence, but failed to mention the January incident. Given that it was of lesser importance, its omission was not as significant as the Board made it out to be.
[6] Third, the Board found that Mr. Masud would not be persecuted if he returned to Bangladesh. There were two bases for this finding: there was no evidence that Mr. Masud was still being sought by his opponents, and any mistreatment he might expect to suffer would not amount to persecution in any case. In fact, Mr. Masud tendered a letter from his uncle stating that the Jamat-e-Islami was still looking for him. The Board referred to a different letter from the uncle but not the one supporting Mr. Masud's fear of persecution. It found that Mr. Masud embellished his story by claiming that he was still being sought.
[7] As for the nature of the mistreatment Mr. Masud might face, the Board cited documentary evidence characterizing the political situation in Bangladesh as violent, and confirming that physical harm sometimes befalls opposition members. Given the change in the ruling party in Bangladesh, Mr. Masud would now be considered an opponent of the government. The Board concluded that physical confrontations and harm amount to harassment, not persecution. It did not explain its conclusion or refer to any accepted definition of persecution.
[8] In my view, the Board's findings in these three important areas are not supported by the evidence. I must, therefore, allow this application for judicial review and order a new hearing before a different panel of the Board. Neither party proposed a question of general importance for me to certify and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed;
2. A new hearing before a different panel is ordered; and
3. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2659-03
STYLE OF CAUSE: SYED IFTAKER MASUD v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 5, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
DATED: March 23, 2004
APPEARANCES:
Rezaur Rahman FOR THE APPLICANT
Derek Rasmussen FOR THE RESPONDENT
SOLICITORS OF RECORD:
REZAUR RAHMAN FOR THE APPLICANT
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
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