Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 836

Date: 20010726

Docket: IMM-5965-00

Neutral citation: 2001 FCT 836

BETWEEN:

SHAZHADA NASRULLA KHAN

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

                                                        REASONS FOR ORDER

Heneghan, J.

INTRODUCTION

[1]                 Mr. Shazhada Nasrulla Khan (the "Applicant") seeks judicial review of a decision by the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated October 24, 2000. In its decision, the Board determined the Applicant not to be a Convention refugee.

FACTS

[2]                 The Applicant is a citizen of Bangladesh. He arrived in Canada on July 27, 1995 and made a claim for Convention refugee status on that day, on the basis of the well-founded fear of persecution by reason of his political opinion. The decision, which is the subject of this application, arises from a re-hearing of his claim, pursuant to the consent Order of this Court dated May 31, 1999 which set aside the decision dated September 1, 1998 which determined the Applicant not to be a Convention refugee.

[3]                The Applicant was born and raised in Barisal, on the southern part of Bangladesh. In 1992, following an approach from a childhood friend, he joined the Purba Banglar Sharbahara Party (the "PBS"). The Bangladesh Nationalist Party (the "BNP") were opposed to the PBS and acted violently against it. According to the Applicant, members of the BNP attacked a PBS party of workers and he was injured, although not as seriously as three of his colleagues.

[4]                In January 1994, the Applicant attended a secret conference of the PBS held in Dhaka. He was elected as publicity secretary for the PBS for Barisal District.

[5]                In August 1994, an open meeting that he was addressing was attacked by BNP supporters and the Applicant was again injured. On the following day, he and others went

to the police station to make a formal complaint and the police refused to listen to them. Later, the Applicant and the others were detained overnight and beaten.

[6]                In November 1994, BNP assailants assembled the parents of the Applicant and attempted to assault his sister when they did not find him at home.

[7]                The Applicant claims that in early 1995, he learned for the first time of the involvement by the PBS in acts of violence, including robbery, rape and murder. He alleges that he tried to leave the party but its leaders would not permit him to do so. In mid-July 1995, he received information that the party high command had sentenced him to death. He says this information precipitated his decision to leave Bangladesh in July 1995.

[8]                The Applicant says that following his departure, two articles were published in newspaper in Bangladesh about him and his involvement with the PBS.

[9]                The Board rejected the Applicant's Convention refugee claim on the grounds that he failed to credibly demonstrate that he left Bangladesh due to a fear of persecution or to show that his "refugee sur place" claim is more than speculative.

[10]            In the alternative, the Board found that if they accepted the Applicant's evidence about membership in the PBS, then he had been an active member of that organization from 1992 until 1995. The Board found it implausible that the Applicant would have been ignorant of the implicitly violent actions of that group until 1995. The Board found, on the basis of documentary evidence filed before it, that the PBS habitually commits violent acts in pursuit of its political agenda, which acts the Board found constitute crimes against humanity according to Article 1F(a) of the United Nations Convention relating to the status of refugee. ^[1].

[11]            The Board concluded that, in light of the Applicant's involvement with the PBS, including his status as publicity secretary for his district from January 1994, it was unlikely that he was unaware of the inherently violent nature and activities of that party. It found him to be complicit in crimes against humanity perpetuated by PBS. It found that he did not leave the PBS at the earlier possible time. It found that he was subject to the exclusionary provision of Article 1F(a) of the Convention.

ISSUE

[12]            The Applicant raises a single issue in this application:

Did the Board err in law by failing to properly consider whether the Applicant is a refugee sur place as a result of the Board causing the Applicant's identity to become known to prosecutory agents in his country of origin?

Applicant's Submissions

[13]            The Applicant argues that the Board erred in its consideration of his sur place claim. He argues that the Board erred in law in repudiating the objectiveness of the newspaper articles which were published in Bangladesh after his departure, which articles were independently verified by the Research Directorate of the Board.

[14]            The Applicant also argues that the Board erred in its assessment of the effect upon his sur place claim resulting from the involvement of one Mr. Amir-Ul Islam, a barrister in Bangladesh with known ties to the Awami League, the governing party in Bangladesh which considers members of the PBS to be terrorists. The Applicant argues that the involvement of Mr. Islam in the verification process relating to the two newspaper articles leads reasonably to the inference that he was aware of the Applicant's presence in Canada, his claim for refugee status and his previous involvement with the PBS. The Applicant says that in light of the relationship of Mr. Islam with the governing party in Bangladesh, as illustrated by Mr. Islam's unsuccessful bid to become an elected member of the government, his involvement in the verification process brings knowledge of his situation to the attention of the government and exposes him to a risk of persecution in Bangladesh if he were returned to the country. That risk is the basis or his sur place claim in Canada.

[15]            The Applicant submits that the Board erred in dismissing the objective evidence of the newspaper articles on the basis of concerns about the credibility of the articles, without having raised those credibility issue and provided the Applicant with the opportunity to respond.

Respondent's Submissions

[16]            The Respondent argues that the Board correctly applied the tests of complicity and dissociation in Gutierrez v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1494 (F.C.T.D.) and Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306 (F.C.A.). Accordingly, the Board's findings in relation to the exclusion of the Applicant pursuant to Article 1F(a) or the Convention were reasonably open to it.

[17]            The Respondent also argues that the Board is under no obligation to consider the question of inclusion or to balance exclusion as opposed to inclusion when it found that the Applicant fell within the ambit of the exclusion clause, that is Article 1F(a). The Respondent argues that the Court would have to conclude that the Board erred with respect to its finding as to the application of the exclusion clause before it could review the conclusion concerning inclusion. Here the Respondent relies on Gonzalez v Canada (Ministerof Employment and Immigration) (1994), 115 D.L.R. (4^th) 403 (F.C.A.) at 411 and Gil v. Canada (Minister of Employment and Immigration) (1994), 119 D.L.R. (4^th) 497

(F.C.A.) at 517 - 518.

ANALYSIS

[18]            Before I may undertake an analysis of the Applicant's sur place claim, I must first determine whether the Applicant was properly excluded pursuant to Article 1F(a) of the Convention. That article forms part of the Act, in Schedule I, provides as follows:

[19]            In my opinion, the Board erred in its conclusion respecting the exclusion of the Applicant pursuant to Article 1F(a) of the Convention. In its decision the Board made a finding of fact that the Applicant was not a member of the PBS. In this regard, the Board said as follows:

I find these problems in evidence are serious and do cut to the heart of his claim. In the result, I find that proof of his involvement in this banned, violent political party, the Sharbahara, has not been established. If follows that his claim of feared persecution form that party, the police, or the Bangladesh government cannot succeed. ^[2]

[20]            The Board then proceeded to make an alternative finding that if the Applicant's story were taken at face value, and he were a member of the PBS, he would be excluded for participating in crimes against humanity. It stated as follows:

Obviously, unproven association with this party (as I have found, above) would tend to rule out the issue of exclusion. In the alternative, however, taking the claimant at his word regarding Sharbahara membership, the issue can, and should, be assessed. The claimant has alleged that he was an active member, including publicity secretary from 1994, of the Sharbahara party (which he alleged to have then accidentally discovered).^[3]

[21]            However, it is perverse and capricious for the Board to base an exclusion determination on a finding of fact that it was unwilling to make in its decision. If the Board is unable to find that the Applicant was a member of the PBS, then it should not base an exclusion decision on speculation.    This determination was patently unreasonable.

[22]            Given that I do not accept the validity of the exclusion of the Applicant, the Court must then examine whether the Board erred in rejecting the Applicant's sur place claim. It is recognized that a person can be found to be a refugee sur place when the fear of persecution is triggered by circumstances arising in the country of origin during the claimant's absence or as a result of the claimant's own actions while outside the country of origin; see Chaudri v Canada (Minister of Employment and Immigration) (1986), 69 N.R. 114 (F.C.A.) and Chen v. Canada (Solicitor General) (1993), 68 F.T.R. 9.

[23]            As well, the United Nations Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1998, outlines the criteria to be considered upon the determination of a sur place claim. Articles 94, 95 and 96 of the Handbook provide as follows:

(b) Refugees ""sur place""

94. The requirement that a person must be outside his country to be a refugee does not mean that he must necessarily have left that country illegally, or even that he must have left it on account of well-founded fear. He may have decided to ask for recognition of his refugee status after having already been abroad for some time. A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee ""sur place"".

95. A person becomes a refugee ""sur place"" due to circumstances arising in his country of origin during his absence. Diplomats and other officials serving abroad, prisoners of war, students, migrant workers and others have applied for refugee status during their residence abroad and have been recognized as refugees.

96. A person may become a refugee ""sur place"" as a resultof his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person's country of origin and how they are likely to be viewed by those authorities.

[24]            In the present case, the Board determined that the Applicant had failed to establish that he had a well-founded fear of persecution in Bangladesh. As noted above, the Board specifically rejected the Applicant's evidence as to his membership in the PBS.

[25]            Then the Board proceeded to consider whether the Applicant could be found to be a refugee sur place. It dismissed that claim on the basis of a lack of credible evidence and said as follows:

The Claimant has also claimed that he is a refugee sur place, in two respects. First, he alleges that the Board, in obtaining its research, made his name known to a barrister aligned with the governing Awami League, and so has jeopardized his identity and safety. In my view, there is no basis to this argument vis-à-vis the Convention because, as I have already found, he has not credibly demonstrated that he left Bangladesh due to fear of persecution from any particular agent. I find it speculative as to whether he has been identified, truly or falsely, as a member of the banned, violent Sharbahara because of the apparent Board contact in Bangladesh, particularly because the two newspaper articles are so questionable as to carry no weight. Neither has it been shown that mere identity as a refugee claimant in Canada may attract persecution

As to the second possible sur place basis of the claim, I cannot make a finding that the interpreter used at the hearing of February 17, 2000, has prejudiced the claimant by having improperly revealed information to other members of the Bengali community, with the remote risk that his story may have reached the wrong ears here and thence in Bangladesh. Findings of fact in a refugee claim are made on a balance of probabilities. After reviewing affidavit evidence and the oral testimony of two witnesses, I find the allegation remains wholly speculative. It is not established that a denial of natural justice occurred in this claim. The claimant cannot succeed on this ground.

[26]            It seems to me that the Board erred in dismissing the sur place refugee claim. That claim is based on two newspaper articles which were published after the Applicant left Bangladesh. The articles, which were verified at the request of the Board, identified the Applicant as a member of the PBS. Mr. Islam, a lawyer with a publicly-established connection with the governing party, participated in the verification process. The Board rejected the reliability of the newspaper articles because they mirrored too closely, in its view, the contents on the Applicant's Personal Information Form.

[27]            That conclusion, in my opinion, ignores the verification process undertaken by the Research Directorate of the Board. That Directorate stands as an objective, independent body, in the absence of evidence to the contrary. In my opinion, it is perverse and capricious for the Board to have dismissed the two newspaper due to its concern about the credibility of the Applicant's evidence when the articles were the subject of independent verification. It follows that the Board's conclusion about the foundation of a sur place claim was also perverse, capricious and patently unreasonable since it was based upon a fundamental misappreciation of the evidence before it.

[28]            In the result, this application for judicial review is allowed. The matter is remitted to a different panel of the Board for consideration and determination.

[29]            At the request of the counsel for the Applicant, the parties are allowed seven days from receipt of these Reasons to submit a question for proposed certification.

(Sgd.) "Elizabeth Heneghan"

                                                                    Judge

Vancouver, British Columbia

July 26, 2001

Endnote