Date: 20001027
Docket: IMM-5146-99
Between :
BODHITARU BARUA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review with respect to the decision of the Immigration and Refugee Board (the Board) rendered on September 28, 1999 determining that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[2] The applicant, a citizen of Bangladesh, claims to have a well-founded fear of persecution because of his religion (Buddhism) and because of his membership in a particular social group (religious minority).
[3] The Board found the applicant lacked credibility for the reasons that follow:
| - The claimant states that when Islam became the state religion in 1988, there was an upsurge of extortions from religious minorities by Muslim fundamentalists, however he waited more than three years before joining the local Bangladesh Hindu Buddhist Christian Unity Council. |
| - The claimant allegedly formed a protest committee, however he seemed to improvise both his responses concerning the membership of this committee as well as its activities from 1991 to 1996. He attributed the absence of a board of directors to a shortage of time, an explanation which the Board found senseless, considering the period of time in question. |
| - The claimant failed to establish that he or any other member of the religious minorities had been persecuted. The extortion he allegedly suffered on November 18, 1983 was unrelated to a Convention ground. |
| - The claimant stated in his Personal Information Form (PIF) that Salauddin Quader Chowdhury was a Bangladesh Nationalist Party (BNP) member and a Member of Parliament in 1983, however during his testimony, he stated not knowing what political party the latter had represented in 1983. The Board infers that this inability to correctly identify the man he accuses of inducing his fear of persecution makes his story implausible. |
| - The claimant submitted two death certificates for his mother, both signed by Dr. Arun Das Gupta and dated February 21, 1998. The first states the cause of death as "excessive tension and Physically wounded" and indicates four education degrees. The second states the cause of death as "mental agony following assault" and indicates two educational degrees. The Board concludes the documents are forgeries. |
[4] In Fletcher v. Manitoba Public Insurance Corporation, [1990] 3 S.C.R. 191, the Supreme Court of Canada set out the appropriate test for judicial intervention on questions of fact at page 204:
| These authorities, in my view, make crystal clear the test for determining when it is appropriate for an appellate court to depart from a trial judge's findings of fact: appellate courts should only interfere where the trial judge has made a "palpable and overriding error which affected his assessment of the facts". The very structure of our judicial system requires this deference to the trier of fact. . . . |
[5] Furthermore, as emphasized by the Federal Court of Appeal in Aguebor v. M.E.I. (1993), 160 N.R. 315, the Board, which is a specialized tribunal, is free to find that an applicant is untrustworthy on the basis of implausibilities in his or her testimony, provided that its findings are not unreasonable.
[6] In this case, the Board's finding of non-credibility was based on the general conduct of the applicant, as well as various inconsistencies and implausibilities between his oral testimony, his PIF and the documentary evidence. Upon reviewing the evidence, I am not satisfied that the Board, who had the advantage of seeing and hearing the applicant, could not assess his credibility and conclude as it did. Although the applicant in this matter seems to believe otherwise, it is simply not acceptable for a reviewing Court to substitute its fact assessment to that of the Board, who is much better placed to assess this matter (Tawfik v. M.E.I. (1993), 137 F.T.R. 43 at 46). I see no reason to believe that the Board, who is assumed to have considered all the evidence presented to it (Hassan v. M.E.I. (1992), 147 N.R. 317 at 318), ignored evidence before it or that its assessment of the documentary evidence was unreasonable.
[7] Additionally, as the applicant's testimony was not found to be credible, the tribunal was entitled to conclude that the minimum basis for the claim was absent. In Sheikh v. M.E.I. (1990), 112 N.R. 61, the Federal Court of Appeal established that when such a tribunal finds that a claimant is not credible it may conclude that there is no credible evidence on the basis of which the claimant could be regarded as a refugee. Further, in M.E.I. v. Mathiyabaranam (December 5, 1997), A-223-95, the Federal Court of Appeal confirmed that this rule is valid for subsection 69.1(9.1) of the Act, concerning the question of the minimum basis.
[8] With respect to the applicant's argument that the Board's conduct was so inappropriate as to give rise to a reasonable apprehension of bias, I see no evidence in the transcript of the hearing or in the decision itself in support of this contention. I consider that the applicant has totally failed to establish that an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude to the existence of a reasonable apprehension of bias ([1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394).
[9] Finally, as a result of the above conclusions, the other arguments raised by the applicant are simply irrelevant.
[10] Consequently, the application for judicial review is dismissed.
[11] On September 25, 2000, counsel for the applicant filed the following three questions to be certified:
| 1) Does the use of the finding of "no credible basis" in refugee hearings in Montreal violate the judicial guarantees of article 7 and article 12 of the Canadian Charter of Rights and Freedoms? Should this finding be assimilated with a manifestly unfounded claim (M.U.C.) in international law? |
| 2) Is article 3 of the Convention against Torture mandatory before the Immigration and Refugee Board and in application of the Canadian Charter or (sic) Rights and Freedoms? Is its consideration mandatory in the context of the "no credible basis finding" of the Immigration and Refugee Board? |
| 3) Does the treatment Bangladeshi refugee claims in Montreal, with the abundant use of the "no credible finding" as well as the complete reversal of the jurisprudence of the I.R.B. raise a reasonable apprehension of bias? |
[12] Counsel for the applicant did not file any written submissions in support of the requested certification. For her part, counsel for the respondent filed written submissions in opposition to the applicant's request. I fully agree with the former's representations and, accordingly, the proposed questions are not certified on the grounds that they are not determinative of the application for judicial review, that they are of no general importance and that they do not meet the criteria established by the Federal Court of Appeal for certification of a question in Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4.
JUDGE
OTTAWA, ONTARIO
October 27, 2000
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