Date: 20001115
Docket: IMM-5646-99
OTTAWA, Ontario, November 15, 2000
BEFORE: Rouleau J.
Between:
MUHAMMED SHOWKOT ALI
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
[1] The application for judicial review is dismissed.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20001115
Docket: IMM-5646-99
Between:
MUHAMMED SHOWKOT ALI
Plaintiff
And:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
ROULEAU J.
[1] This application for judicial review was filed against a decision by the Refugee Division of the Immigration and Refugee Board (hereinafter "the Refugee Division") on October 26, 1999 that the plaintiff is not a Convention refugee.
[2] The plaintiff is a citizen of Bangladesh. He arrived in Canada on November 11, 1998 and claimed refugee status on arrival. He alleged a well-founded fear of persecution for his political opinions. The Refugee Division found that the plaintiff's credibility was at issue in the case at bar. It noted several improbabilities as well as a major contradiction. It is worth reproducing the relevant portion of the Refugee Division's decision:
| The claimant alleged that he belonged to the student group of the Bangladesh Freedom Party from 1990 to 1996. The claimant was able to answer several questions put to him by the RCO about the party's history. He recalled the split of the party between the Rashid supporters and the Farouk supporters. The later [sic] wing was well-known for its terrorist activities. The claimant indicated that he belonged to the Rashid wing. The panel noted that the claimant had a very good memory. However when asked about the political orientation of the party the claimant became noticeably vague. The RCO confronted the claimant with the information in the documentary evidence which shows no student group as such. The claimant was obviously disconcerted. Asked what was the political tendencies of the two wings, the claimant indicated that the Rashid group was: center, and the Farouk group was right wing. Documentary evidence shows that the Rashid was right wing and that the Farouk group was extreme right. The claimant demonstrated that he was not as involved with the Rashid group as alleged. His ignorance is telling. Asked if there were any arrests under the BNP government, the claimant replied that there were none after 1992. However, documentary evidence shows that many members were indeed arrested. The claimant added that it was according to his knowledge. The panel finds that this added-on nuance does not take away the fact that the claimant's involvement was minimal as demonstrated by his ignorance of basic facts for someone who alleged to have been active for that party. Such a tendency to exaggerate continued throughout the testimony of the claimant. |
| The claimant alleged that his work and acquaintance with Hellal put him in a similar risk as Hellal. The panel acknowledge that the claimant was on the same boat as Hellal while delivering food and medical stuff to flood-stranded population. However, Hellal, who occupied a much higher position is, no doubt, in contact with hundreds, if not thousands of workers by the mere fact of his position. He was the head of Dhaumondi Thana Branch. By showing himself in the same boat with Hellal, the claimant did not demonstrate that he is indeed close to Hellal to such an extent that he may be running into the same predicament as Hellal, who was allegedly killed by AL goons. The panel finds such a leap a further exaggeration in the claimant's testimony. The panel also saw the claimant, on another video clip, introducing people at a podium. The panel does not doubt that the claimant was a worker for the BNP in his locality. However he was not a prominent speaker. |
| The claimant alleged that on December 8, 1997, he called a meeting to discuss arrangements for the general strike against the Chittagong Hill Tract treaty. He testified that the strike was to be held on December 10, 1997. He was taken to the police station. He spent half an hour with an officer who urged him to quit BNP and to stick to sport. The claimant testified that he was a well-known cricket player. He was playing in a professional league. The claimant was slapped by the police officer, who then asked his men to give him a `good lesson'. The claimant indicated that the president of his thana was also arrested. According to the claimant his president organized a march in the afternoon of the 9th after the claimant was released in protest of the beatings. The RCO confronted the claimant with the fact that there was no need to make preparation plans for a general strike on December 9th, as the strike was over on December 7th. It was scheduled before that date. The panel does not find it plausible that the claimant would occupy the position of general secretary in his area and not be aware of the date of such an important event. The Chittagong Hill Tract treaty has been at the forefront of the news media for months. The public opinion all over the country was divided on the matter. Asked where he was on December 7th, the claimant replied that he was at a cricket match at the Borishal stadium in front of some 5000 or 6000 spectators. The panel finds this sequence a major contradiction between the testimony and the wide press coverage of this important event. The claimant did not provide any reasonable explanation. He repeated what his president decided about his case. Such is not a satisfactory explanation. |
| The claimant alleged that the government bans radio, TV information which is detrimental to the government. Documentary evidence shows that, although there were some specific restrictions on inappropriate incitations, by and large, there is freedom of press in Bangladesh. |
| The claimant testified that he was chosen to be a Commissioner. This nomination infuriated Kala, the Awami League goon who is after the claimant. Although the claimant's house was guarded, Kala managed to get in. The claimant's description was vague. The claimant testified that his father is rich. He has a business which hires 200 employees. The house is situated in the best district of Dhaka. The property is known by name and bears no address as it is a well-known place. Therefore the panel does not find it plausible that the claimant's father's complaint would not have been taken seriously. There was damage to the property to be reported as well as injuries to his son. The panel also noted that the claimant did not mention in his PIF that the house was ransacked and that his father reported the incident to the police. The panel does not believe that this incident occurred. Such an omission from an intelligent, educated person, does mar his credibility. When assessing the testimony, combined with the omission, the panel finds that the claimant did not demonstrate that the injuries suffered were the result of the alleged encounter for political reasons. |
| Moreover, the panel noted several anomalies with the three medical certificates. There are striking discrepancies between spelling of the name of institution in the letter heads and the spelling in the stamp at the bottom in exhibit P-4 and P-6. It is also unusual that a doctor would indicate, as in P-5, the cause of injuries such as an `assault one day back'. The certificate was issued two years later. The panel does not give those documents any weight. They do not demonstrate that the injuries suffered by the claimant had been inflicted due to his political opinion. |
| After reviewing the totality of the evidence submitted by the claimant and the RCO, the panel concludes that the claimant did not provide sufficient credible evidence to demonstrate that he has more than a `mere possibility', or a `reasonable chance' of being persecuted should he go back to Bangladesh. |
Plaintiff's arguments
[3] The plaintiff maintained that he had never testified that the Freedom Party, to which he belonged, included a student wing. Further, the ideology of a political party, like the documentation consulted by the Refugee Division, is a matter of opinion.
[4] The plaintiff was never a member of the armed faction. In his submission, the Refugee Division therefore could not consider the fact that he was unaware that members of the armed faction of the Freedom Party, which had separated from 1992 onwards, were arrested in 1993 as an indication of a lack of credibility.
[5] In his opinion, even if the Refugee Division concluded that the plaintiff's activities with the Freedom Party were minimal, it would be wrong to regard this conclusion as decisive since the plaintiff himself did not stress his membership in the Freedom Party. He alleged that the persecution he suffered resulted from his allegiance to the BNP and his activities as an influential member of the party.
[6] The plaintiff felt that the Refugee Division had erred in concluding that he would not have suffered the same fate as Hellal because he was not as influential or visible as the latter. He thought the Refugee Division also erred in law in concluding that only a leading spokesperson would have been persecuted, given the evidence submitted which indicated that even ordinary members were victims of persecution.
[7] The plaintiff felt that the Refugee Division erred in considering that there was only one strike, on December 7, 1997. In fact the evidence showed that there were other strikes at that time, in particular on December 10, 1997. If the Refugee Division had considered this fact it would, in the plaintiff's submission, have reached a different conclusion.
[8] The plaintiff noted that the Refugee Division erroneously indicated that he had testified that the president of his thana (a geographic division) was arrested on December 8, 1997 and that the plaintiff called a meeting on December 8, 1999. According to the plaintiff, the Refugee Division erroneously indicated that he testified that there was no freedom of speech in Bangladesh.
[9] The plaintiff maintained that he had never testified he was attacked inside his home or that his house was ransacked on July 4, 1997. He admitted that he failed to mention in his PIF that his father had met with the police to tell them of the attack on his son outside his home. If the Refugee Division had not already made so many errors in assessing the plaintiff's credibility, the last omission would perhaps not have led it to conclude that the attack never took place.
[10] The plaintiff argued that the Refugee Division could not assume that, in view of the plaintiff's father's wealth, there would necessarily have been quick action on his complaint to the police.
[11] In the plaintiff's submission, the Refugee Division erred in law in deciding to attach little evidentiary value to his medical certificates. He felt it came to this conclusion arbitrarily and by disregarding the content of the certificates. He also felt it failed to use its specialized knowledge that foreign words are often rendered differently when they are translated into English.
Defendant's arguments
[12] The defendant submitted that the lack of basic information about a party for which the plaintiff claimed to have fought was difficult to explain and highly prejudicial to his credibility.
[13] As regards the strike, the defendant submitted that the article relied on by the plaintiff did not support his allegations. There was no indication that strikes occurred in the days following December 7.
[14] As to the reluctance to believe that the complaint filed by the plaintiff's father was not taken seriously, the defendant maintained that this was a reasonable finding that could validly be made.
[15] Finally, the defendant added that the decision was simply based on credibility and by its very nature should be treated with the greatest deference.
Analysis
[16] It is the function of the Refugee Division, as a specialized tribunal, to assess the credibility of witnesses and the evidence submitted. Unless the plaintiff is able to show that the inferences drawn by the tribunal could not reasonably have been drawn, there is no basis for intervention by this Court. These rules were restated by the Court in Kabeya v. M.C.I., IMM-47-99, January 28, 2000 (per Lemieux J.), as follows:
| As my fellow judges have said many times, the standard of review for an Immigration and Refugee Board decision whose reasons are based on a lack of credibility by the claimant due to implausible and improbable statements, drawn reasonably and based on the evidence, or as a result of the confusion created by the latter's responses, is that stated by the Federal Court of Appeal in Aguebor v. Canada per Décary J.A.: |
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden. |
| This conclusion is consistent with the Supreme Court of Canada judgment in Canadian Union of Public Employees, Local 301 v. City of Montreal, in which L'Heureux-Dubé J. made the following observation at 844: |
| We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent [sic] one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370. (See also Mostajelin v. M.E.I. , A-122-90, January 15, 1993, F.C.A.) |
[17] In view of the particular circumstances of the case at bar, I will consider each of the objections raised by the plaintiff.
Membership in Freedom Party
[18] The Refugee Division began its analysis by indicating that "[t]he claimant alleged that he belonged to the student group of the Bangladesh Freedom Party from 1990 to 1996". This is an error, as the plaintiff testified that the Freedom Party had no student wing (pp. 247 to 249 of the tribunal's record). Later in the same paragraph, the Refugee Division indicated that it "confronted the claimant with information in the documentary evidence which shows no student group as such. The claimant was obviously disconcerted". I went through the transcript of the hearing before the Refugee Division carefully and could find only one passage which indicated such a confrontation. Further, as mentioned above the plaintiff himself testified that no student wing existed in the Freedom Party. However, I consider that this error had no effect on the outcome of the case at bar.
Freedom Party's ideology
[19] The Refugee Division said: "Asked what was the political tendencies of the two wings, the claimant indicated that The Rashid group was: center, and the Farouk group was right wing. Documentary evidence shows that the Rashid was right wing and that the Farouk group was extreme right". The documentary evidence in fact indicated that the Freedom Party was a conservative rightist, if not extreme rightist, political party. The plaintiff indicated that a political party's ideology is a matter of opinion and it was reasonable for him to regard his party's ideology as centrist. However, the plaintiff did not indicate how the Refugee Division's conclusion was unreasonable, since it was based on the documentation filed.
Arrests in Freedom Party
[20] The Refugee Division tried to determine the extent of the plaintiff's involvement in the Rashid group of the Freedom Party. It indicated: "Asked if there were any arrests under the BNP government, the claimant replied that there were none after 1992. However, documentary evidence shows that many members were indeed arrested. The claimant added that it was according to his knowledge. The panel finds that this added-on nuance does not take away the fact that the claimant's involvement was minimal as demonstrated by his ignorance of basic facts for someone who alleged to have been active for that party. Such a tendency to exaggerate continued throughout the testimony of the claimant".
[21] The documentation filed clearly indicates that several members of the armed faction of the Freedom Party were arrested in 1993 after the government intercepted a shipment of arms being made to them. In fact, the documents indicated that arrests also took place in 1997. The plaintiff tried to justify his ignorance of these details by arguing that he was not a member of the armed faction of the Freedom Party in 1993.
[22] A careful reading of the Refugee Division's decision shows that the questions about arrests were actually asked in order to determine the extent of the plaintiff's involvement in his political party. In my opinion, if the Refugee Division thought that the plaintiff held quite a high position it was entitled to expect that he would be aware of this kind of information, especially if the members arrested were leading figures. The plaintiff was not able to persuade me that this aspect of the Refugee Division's decision was not reasonable.
Importance attached by Refugee Division to fact he was member of Freedom Party
[23] The plaintiff argued that the Refugee Division should not have attached too much importance to the fact that he was a member of the Freedom Party, since in his submission the fear of persecution he had was due to his membership in the BNP. Only four paragraphs of his PIF dealt with his membership in the FP, while 29 others concerned his membership in the BNP.
[24] In my opinion, the Refugee Division was justified in weighing the evidence as it saw fit. At the hearing the members of the Refugee Division put the following question to the plaintiff: "Why are they [the police or the terrorists working for the party in power] specifically after you?". The plaintiff answered:
| Honourable Court, there are three reasons behind it: maybe number 1, I was the member of the Freedom Party, and because of my activities, and because of the activities of my unit, the popularity of our BNP increased in our area. Because of that reason, politically, Awame League Party had trouble because of that reason. It could be the reason. |
[25] In view of this reply, the Refugee Division was justified in looking at the plaintiff's previous actions, since they might serve to explain his present fears. In my opinion, the Court would not be justified in intervening in this aspect of the decision.
Relevance of taking importance of plaintiff's position into account
[26] Careful reading of the plaintiff's examination and testimony at the hearing indicates that the members of the Refugee Division tried to determine exactly the position held by the plaintiff in the BNP. The fact is that the BNP has several million members and over 100 members sitting in Parliament. The plaintiff objected that the Refugee Division found that he did not have such a high rank as Hellal, a BNP leader whose body was found dead, and so he was not facing the same risk. The Refugee Division found:
| The claimant alleged that his work and acquaintance with Hellal put him in a similar risk as Hellal. The panel acknowledge that the claimant was on the same boat as Hellal while delivering food and medical stuff to flood-stranded population. However, Hellal, who occupied a much higher position is, no doubt, in contact with hundreds, if not thousands of workers by the mere fact of his position. He was the head of Dhaumondi Thana Branch. By showing himself in the same boat with Hellal, the claimant did not demonstrate that he is indeed close to Hellal to such an extent that he may be running into the same predicament as Hellal, who was allegedly killed by AL goons. The panel finds such a leap a further exaggeration in the claimant's testimony. The panel also saw the claimant, on another video clip, introducing people at a podium. The panel does not doubt that the claimant was a worker for the BNP in his locality. However he was not a prominent speaker. |
[27] The plaintiff is now seeking to minimize the importance to be attached to his friendship with Hellal. It appears from the PIF that the plaintiff indicated that it was specifically because of this friendship and the common aims shared by them he was now fearing for his life. In my opinion, the Refugee Division was fully justified in examining the rank held by the plaintiff. Additionally, the Refugee Division found that none of the evidence submitted clearly established that the two men were more than just political acquaintances. The Court clearly cannot challenge this assessment of the facts.
Strike of December 7 and subsequent strikes
[28] The Refugee Division found that this portion of the examination was a major point in assessing the plaintiff's credibility and clearly showed that he was not as involved politically as he claimed. The relevant passage of the decision is as follows:
| The claimant alleged that on December 8, 1997, he called a meeting to discuss arrangements for the general strike against the Chittagong Hill Tract treaty. He testified that the strike was to be held on December 10, 1997. He was taken to the police station. He spent half an hour with an officer who urged him to quit BNP and to stick to sport. The claimant testified that he was a well-known cricket player. He was playing in a professional league. The claimant was slapped by the police officer, who then asked his men to give him a `good lesson'. The claimant indicated that the president of his thana was also arrested. According to the claimant his president organized a march in the afternoon of the 9th after the claimant was released in protest of the beatings. The RCO confronted the claimant with the fact that there was no need to make preparation plans for a general strike on December 9th, as the strike was over on December 7th. It was scheduled before that date. The panel does not find it plausible that the claimant would occupy the position of general secretary in his area and not be aware of the date of such an important event. The Chittagong Hill Tract treaty has been at the forefront of the news media for months. The public opinion all over the country was divided on the matter. Asked where he was on December 7th, the claimant replied that he was at a cricket match at the Borishal stadium in front of some 5000 or 6000 spectators. The panel finds this sequence a major contradiction between the testimony and the wide press coverage of this important event. The claimant did not provide any reasonable explanation. He repeated what his president decided about his case. Such is not a satisfactory explanation. |
[29] This conclusion by the Refugee Division is completely supported by the evidence in the record.
[30] In his testimony, the plaintiff indicated that local strikes had taken place on or about December 5 or 6. However, he did state that the national strike took place on December 10. The national strike in question took place on December 7. The plaintiff's explanations were thus directly at variance with this objective fact. The plaintiff is now arguing that there were other strikes after that of December 7, including at least one on the 10th. This does not in any way alter the fact that he testified that the national strike took place on the 10th, when it clearly took place on December 7. In view of the importance of this event the Refugee Division was fully justified, in my opinion, in concluding that the plaintiff's testimony lacked credibility.
[31] The plaintiff objected that the Refugee Division concluded that it was he who had organized the meeting of December 8, 1997, when he only took part. This was apparently a meeting of the executive committee, for which he was general secretary. The plaintiff also testified that the function of the general secretary of this executive committee was to organize meetings of the committee. In these circumstances, even if this conclusion by the Refugee Division may have been in error, it was nonetheless reasonable in view of the plaintiff's testimony.
Testimony regarding freedom of speech
[32] The Refugee Division concluded that "[t]he claimant alleged that the government bans radio, TV information which is detrimental to the government. Documentary evidence shows that, although there were some specific restrictions on inappropriate incitations, by and large, there is freedom of press in Bangladesh". I cannot draw any conclusion from this passage to the effect that the Refugee Division considered that the plaintiff testified there was no freedom of speech in Bangladesh. The plaintiff's objection to this aspect of the Refugee Division's decision seems to me to be without basis and even frivolous.
Attack of July 4, 1997
[33] The disputed passage of the Refugee Division's decision is the following:
| The claimant testified that he was chosen to be a Commissioner. This nomination infuriated Kala, the Awami League goon who is after the claimant. Although the claimant's house was guarded, Kala managed to get in. The claimant's description was vague. The claimant testified that his father is rich. He has a business which hires 200 employees. The house is situated in the best district of Dhaka. The property is known by name and bears no address as it is a well-known place. Therefore the panel does not find it plausible that the claimant's father's complaint would not have been taken seriously. There was damage to the property to be reported as well as injuries to his son. The panel also noted that the claimant did not mention in his PIF that the house was ransacked and that his father reported the incident to the police. The panel does not believe that this incident occurred. Such an omission from an intelligent, educated person, does mar his credibility. When assessing the testimony, combined with the omission, the panel finds that the claimant did not demonstrate that the injuries suffered were the result of the alleged encounter for political reasons. |
[34] This conclusion is entirely reasonable and the plaintiff submitted nothing that might show that the conclusion was not based on the evidence or that it was unreasonable. The judgment of Nadon J. in Sanchez v. M.E.I., IMM-2631-99, April 20, 2000, is similar. In that case, the plaintiff had spoken at the hearing for the first time of an incident in which his house was fired on, an incident which persuaded him to come to Canada. Nadon J. concluded that it was "improbable that the applicant could forget to mention an incident of such importance in his PIF, since this was the incident that supposedly convinced him to come to Canada".
[35] In his memorandum the plaintiff maintained that he never testified he was attacked inside his father's home or that the home was ransacked. Although he was right about the place where he was attacked, the plaintiff cannot argue that he never said the home was vandalized. He did say this, as indicated by the transcript of his testimony.
[36] The plaintiff also challenged the inference drawn by the Refugee Division about the possibility of police action, in view of the social status enjoyed by his father. The plaintiff was unable to persuade the Court that this inference was so unreasonable that intervention by the Court is warranted.
Medical reports
[37] Finally, the plaintiff challenged the Refugee Division's decision not to attach any weight to the medical reports submitted by the plaintiff. The arguments he made in this Court, regarding the value to be attached to the medical reports, are the same as those he made to the Refugee Division. There is no indication that the Refugee Division did not take them into account. The Refugee Division's decision on this evidence falls within the scope of its jurisdiction as the court of first instance and this finding should only be questioned after it has been shown to be unreasonable. In the case at bar, I consider this was not done.
Conclusion
[38] A careful review of this case leads me to believe that the Refugee Division refused to grant the plaintiff refugee status because it found that he had exaggerated his story to the point that he could not be believed. The findings of the Refugee Division are based on the evidence filed in this case and a review of the examination of the plaintiff makes it clear that the Refugee Division tried to determine the importance of the position the plaintiff claimed to have held, so as to assess the extent of the risk he ran. It found that the plaintiff had not persuaded it that there was more than a mere possibility or a reasonable chance of being persecuted if he went back to Bangladesh (Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989) 7 Imm. L.R. (2d) 169 (C.A.)). After a careful review of the record, I have concluded that the plaintiff was unable to persuade me that the Refugee Division erred to such an extent that the intervention of this Court is necessary. The application is accordingly dismissed.
OTTAWA, Ontario
November 15, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: MUHAMMED SHOWKOT ALI |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| PLACE OF HEARING: MONTREAL, QUEBEC |
| DATE OF HEARING: OCTOBER 24, 2000 |
| REASONS FOR ORDER BY: ROULEAU J. |
APPEARANCES:
| RACHEL BENAROCH PLAINTIFF |
SOLICITORS OF RECORD:
| RACHEL BENAROCH PLAINTIFF |
MONTRÉAL, QUEBEC
| MORRIS ROSENBERG DEFENDANT |
DEPUTY ATTORNEY GENERAL OF CANADA
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