Date: 20000126
Docket: IMM-2677-99
BETWEEN:
SAMSU MIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application under Section 82.1 of the Immigration Act 1 (the Act) for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the Board) whereby the Board determined that the applicant is not a Convention refugee as defined in subsection 2(1) of the Act.
[2] The applicant, a citizen of Bangladesh, claimed refugee status on the basis of a well founded fear of persecution by reason of his social group, namely the poor. The acts which gave rise to his claim for refugee status occurred substantially while in Canada.
[3] The applicant was employed for approximately three years as a domestic servant for Mr. Anwar Ul Alam, the Deputy High Commissioner for Bangladesh in Ottawa.
[4] During this time the applicant alleges that he was physically and verbally abused by Mr. Ul Alam, often for trivial matters. He also alleges that he was often forced to work seven days a week with little or no rest and was told not to associate with people outside of the residence and was not allowed to leave the residence on what should have been his own time.
[5] Despite having signed a contract with Mr. Ul Alam which set out his remuneration, duties, hours of work, etc., the applicant alleges that he was not paid for his work.
[6] Notwithstanding the fact that the applicant paid for private room and board according to his contract, he alleges that he was forced to sleep on the floor in the living room or laundry-room.
[7] The applicant further alleges that he was treated as a slave living in bonded servitude. He alleges that after over three years he decided he could no longer take the abuse or work so hard without pay. He also alleges that when he finally asked to be paid for his work he was refused and was again assaulted by Mr. Ul Alam. The applicant then left the embassy.
[8] The applicant subsequently appeared on a Canadian community television show in an effort to inform members of the Bengal community about his treatment and to prevent others from suffering.
[9] The applicant alleges that following his appearance on television he began to receive threats here in Canada and that his family in Bangladesh started receiving threats as well.
[10] The applicant"s claim is based in part on the treatment he allegedly received at the hands of Mr. Ul Alam while an employee of the Bangladesh government at the High Commission for Bangladesh, and on the threats he and his family have allegedly received from Mr. Ul Alam and his associates since leaving his employment.
[11] The one-member panel found the applicant not to be a Convention refugee mainly on the ground that there was no nexus between the harm feared by the applicant and one the Convention grounds, thereby concluding that the applicant"s persecution stemmed from a personal vendetta between himself and his former employer, Mr. Ul Alam. This part of the decision reads as follows:
| Then the courts tell us that the persecution should be linked to a Convention ground. It says that persecution has been distinguished from random and arbitrary violence and from suffering as a result of a criminal act or personal vendetta. And it has to be distinguished from personal vendettas or the misuse of official positions. And we have to see whether the harm is inflicted for a Convention reason. Then the distinction must be drawn between a claimant who fears persecution because of what he or she does as an individual, and a claimant who fears persecution because of his or her membership in a particular social group. And it is the membership in the group which must be the cause of the persecution and not the individual activities of the claimant [...] |
| We have to look in your case as to what you fear and why. You stated that you feared that there would be a personal vendetta by Mr. Alam because you exposed his treatment of you. |
| So if this is the reason, then this does not really come into the Convention because then this is a matter of personal vendetta rather than a political opinion.2 |
[12] In respect to the issue of state protection the member concluded that the applicant failed to provide clear and convincing evidence of Bangladesh"s inability to protect. The member stated as follows:
| There was a High Commissioner here and you could have written to him, asking for protection when you or your family was threatened by Mr. Alam. But you did not write to him. In fact, the only letter that is on record here is about settling the matter of your dues. [...] But we were looking at whether you had written to the High Commissioner here or had requested a meeting with him, or whether you had written to the Ministry of Foreign Affairs in Dhaka saying that you were being threatened, even though you were the victim of not being paid the money. But these things we do not find in the evidence. |
| The courts have said clearly that the Claimant must approach his state for protection and that the Claimant must show clear and convincing proof of the state"s inability to protect. |
| Now, we are aware that there is corruption in Bangladesh and also some repression and that the protection is not foolproof.3 |
[13] Further, the member cites Valentin v. Canada (Minister of Employment and Immigration)4 as guidance in respect to the applicant"s voluntary act of contacting a radio station5 to broadcast his story. The member pursues to evaluate the consequences of the applicant"s decision to broadcast his story on the radio:
| And we have to then see the consequences of this action on you and also Mr. Alam. In Mr. Alam"s case, what we find is that the matter of his conduct was brought to his government"s attention through your counsel"s letter to the High Commissioner. And the High Commissioner responded to the letter with Mr. Alam"s own response. It is reasonable to infer that the High Commissioner brought this matter to the attention of higher authorities because it was important. If the government had found substance, if the government had believed these things, then they would have held an inquiry. But instead, they have promoted him; he has become the Ambassador to Bahrain. So from this, we see that he had not suffered because of your complaint, despite your radio interview and despite this letter from counsel to the High Commissioner.6 |
[14] He concluded that the threats experienced by the applicant were as a result of his broadcasting his story on the radio (a personal vendetta), and not one of the Convention grounds.
[15] First, it is clear from the Convention definition that there be a nexus or link between the harm feared and one of the five grounds of the refugee definition, that is, race, religion, nationality, membership in a social group or political opinion. Without the required nexus, the claim for refugee status will fail.7
[16] In addition, as stated in recent case-law such as Leon v. MCI8 and Lara v. MCI 9, the existence of a nexus between persecutory conduct and a Convention ground is a question of fact, which is clearly within the panel"s expertise, and as a result, this Court may only intervene if a decision was made in a perverse or capricious manner or without regard to the material before the panel.
[17] In the case at bar, I believe that based on the evidence before him, that it was reasonable for the member to conclude that no nexus had been established between the applicant"s treatment by his employer, Mr. Alam and one of the Convention grounds.
[18] The mere fact that the perpetrator is a government official does not change per se the acts into persecution.10
[19] However, notwithstanding my aforementioned conclusion, I consider it necessary to examine the manner in which the member assessed the evidence before him, namely on the issue of state protection and the evidence adduced by the applicant in respect to the state"s inability to protect. The relevant excerpts read as follows:
| There was a High Commissioner here and you could have written to him, asking for protection when you or your family was threatened by Mr. Alam. But you did not write him. In fact, the only letter that is on record here is about settling the matter of your dues. [...] |
| [...] And if he further threatened your family, then I think you had a good moral and perhaps a legal case to go to the High Commissioner or even to write to the Minister of Foreign Affairs, saying you are only asking for your rights. And I am aware of your grade 5 education, but asking to see the High Commissioner is not very much in terms of procedure, and you did not do that.11 |
[20] In effect, the member"s written reasons do show that he misconstrued evidence adduced before him. In assessing whether or not the applicant approached the state for protection he clearly ignored the fact that the applicant had written to the High Commissioner through his counsel citing inter alia the ill-treatment endured at the hands of Mr. Alam.12
[21] Nonetheless the question we must pose, is whether this misinterpretation of facts has had an impact on the member"s decision to the extent that it justifies this Court"s intervention?13
[22] Insofar as a refugee claim cannot succeed without the required nexus between a harm feared and one of the five Convention grounds, I believe that the fact that the applicant did or did not seek state protection is irrelevant at this stage of the analysis.
[23] Thus I am of the view that the misconstruing of evidence in the case at bar did not have an impact on the member"s ultimate decision that the applicant was a victim of a personal vendetta rather than persecution linked to his particular social group. Consequently I believe that this error does not warrant the Court"s intervention.14
[24] For these reasons, the application for judicial review is dismissed.
[25] Counsel for the applicant has suggested the following question for certification:
| Does the demonstration of a substantial connexion of a persecutor to the government give rise to a reasonable presumption that state protection would not be forthcoming and therefore that a nexus to the Convention is established? |
[26] Counsel for the respondent opposed the application for certification asserting that the determination is substantially fact-driven. I agree. Consequently, I will not certify this question to the Court of Appeal.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
January 26, 2000.
__________________
1 R.C.S. 1985, c.I-2.
2 Applicant"s Record, pp. 8-9.
3 Applicant"s Record, pp. 9-10.
4 [1991] 3 F.C. 390 (F.C.A.).
5 The applicant"s affidavit refers to a television broadcast, see applicant"s Record, p. 19, para.33, however it seems that the member and subsequently, counsel, refer to a "radio" broadcast. I understand this as a simple mistake not relevant to the final decision rendered.
6 Applicant"s Record, p. 12.
7 Rivero v. Canada (M.C.I.) (November 22, 1996), IMM-511-96 (F.C.T.D.); Xheko v. Canada (M.C.I.) (1998), 153 F.T.R. 283 (F.C.T.D.).
8 (19 September 1995), IMM-3520-94 (F.C.T.D.).
9 (26 February 1999), IMM-438-98 (F.C.T.D.).
10 Mousavi-Samani v. Canada (Minister of Citizenship and Immigration) (30 September 1997), IMM-4674-96 (F.C.T.D.).
11 Applicant "s Record, pp. 9-10.
12 Applicant"s Record, pp. 61-62.
13 Peng v. Canada (M.E.I.) (1993), 19 Imm. L.R. (2d) 220 (F.C.A.).
14 Miranda v. Canada (M.E.I.) (1993), 63 F.T.R. 81; Owusu v. Canada (Employment and Immigration Commission) (19 May 1988), A-895-87 (F.C.A.).
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