Kazi v. Canada (Minister of Citizenship and Immigration), 2002 FCT 178

Date: 20020118

Docket: IMM-2163-01

Neutral citation: 2002 FCT 178

BETWEEN:

                                                                Shahab Uddin KAZI

                                                                                                                                                     Applicant

                                                                             - and -

                                                   THE MINISTER OF CITIZENSHIP

                                                                AND IMMIGRATION

                                                                                                                                               Respondent

                                                            REASONS FOR ORDER

LEMIEUX J.:

BACKGROUND

[1]                 Shahab Uddin Kazi (the "applicant"), a citizen of Bangladesh, in this judicial review application, challenges the April 9, 2001 decision of Post-Claim Determination Officer Danielle LeBrun (the "PCDO") who rejected his April 28, 1999 application for recognition as a member of the Post-determination Refugee Claimants in Canada Class (the "PDRCC") provided for in subsection 2(1) of the Immigration Regulations, 1978 (the "Regulations").

[2]                 His application for PDRCC status was filed by his then legal counsel who made written submissions. The applicant was not interviewed.

[3]                 Subsection 2(1) of the Regulations reads:

[4]                 The Refugee Division had ruled he did not have a well-founded fear of persecution because of his involvement with the Jatiya Party.

[5]                 The applicant raises two grounds in his challenge:

(1)        he says he was denied procedural fairness by the PCDO for a number of reasons;

(2)        he argues the PCDO's decision was unreasonable because the PCDO misconstrued the evidence in several cases or ignored relevant evidence in others. In addition, she based her decision on irrelevant considerations.

[6]                 On the first ground, procedural unfairness arises, the applicant submits, in two ways. First, the PCDO drew negative inferences against him based on his ex-wife's affidavit in divorce proceedings in Bangladesh (which his representative had filed with the PCDO) without giving him an opportunity to explain or comment on these inferences. The PCDO found his ex-wife's affidavit contradicted his reason for leaving Bangladesh.

[7]                 The second way procedural unfairness arose was because the PCDO did not disclose to him a copy of her risk opinion before she made her risk assessment and decision. That duty to disclose arose because two years had elapsed between the time he made his submissions and the date of the PCDO's decision and country conditions had changed. Moreover, disclosure would have enabled him to correct the serious factual errors or omissions identified in the second ground.

[8]                 The applicant supports his second ground -- unreasonable decision, in several ways.

[9]                 First, he says the PCDO failed to take into account the most current and up-to-date reports on country conditions in Bangladesh and, in particular, a U.S. DOS report for 2000 issued in February 2001 which states the current government formed by the ruling Awami League turned its back on the support given to it by the Jatiya Party whose President (Ershad) it recently jailed. The PCDO, he argues, relied on stale documentary evidence of Jatiya Party support of the Awami League in 1996 to conclude the applicant did not persuade her he could be targeted by members of the Awami League.

[10]            Second, the PCDO misconstrued the evidence when she concluded his risk of torture was not significant because he had been a low profile member of the Jatiya Party. Counsel for the applicant points to a recent Amnesty International report of November 2000 entitled "Bangladesh - Torture and Impunity" which she says was not considered by the PCDO.

[11]            Third, the PCDO erred when she concluded he could reduce his risk by not resuming his political activities. He had been away a number of years and he had not shown he was still a member of the Jatiya Party in the PCDO's view.

[12]            Fourth, the applicant argues the PCDO misconstrued or ignored the evidence in several instances:

(1)        his ex-wife, in her affidavit, did not say he was not supporting his child in Bangladesh as the PCDO found. He says, in his affidavit, his child is living with his mother and he sends her money regularly;

(2)        the PCDO assumed, because he had a business, he had money to fight any arrest or imprisonment in the High Court. In his affidavit, he says he has no money because his business was destroyed;

(3)        the PCDO ignored the fact arrest warrants were not required in Bangladesh;

(4)        the PCDO ignored the fact the ruling party was a national party and could find him anywhere in Bangladesh;

(5)        the PCDO ignored the fact police corruption was rampant in Bangladesh.

[13]            Fifth, he says his ex-wife's affidavit was incorrect when she deposed he had not been in touch with her since coming to Canada. He says this is not so and she knew where he was in Canada.

[14]            Sixth, the PCDO drew an unreasonable inference that because he had been released once he would not be arrested again.

[15]            Counsel for the respondent counters by referring to the jurisprudence of this Court on the scope of review of the PDRCC evaluation. That standard, he argues, is very high because what the applicant is seeking is an exemption from the ordinary requirements of the Regulations constituting a privilege and taking away no right.

[16]            In his written memorandum, counsel for the respondent relied upon the Federal Court of Appeal's decision in Minister of Citizenship and Immigration v. Dasent (1996), 193 N.R. 303, for the proposition there was no obligation on the part of the PCDO to identify the precise information to be relied upon in the PDRCC risk assessment or to put to the applicant her tentative conclusions in order to provide him with an opportunity for specific response.

[17]            In that memorandum, counsel for the respondent stated the applicant had failed to identify any basis for the conclusion the PCDO's decision was unreasonable. The PCDO made findings of fact and there was evidence in the record to support those findings. Moreover, there was no obligation on the PCDO to mention in her reasons all of the elements of evidence she has taken into account before reaching her decision.

[18]            In oral argument, counsel for the respondent made the following points:

(1)        In answer to the argument the applicant's submissions were stale, two years out of date because of new circumstances and changing country conditions, there was no unfairness since the applicant was not precluded from submitting any additional evidence before the PCDO rendered her decision. The record indicates his representative communicated information (his ex-wife's affidavit) to the PCDO as late as June 27, 2000;

(2)        the applicant's reliance on the Federal Court of Appeal's recent decision in The Minister of Citizenship and Immigration v. Haghighi, [2000] 4 F.C. 407, is misplaced because what the Federal Court of Appeal was dealing with there was an H & C application where the immigration officer sought the advice from a PCDO before making her decision. It was a third party opinion which is not the case here where the PCDO performed the entire risk assessment;

(3)        a review of the references listed by the PCDO in her decision notes indicates she took into account relevant country condition reports.

ANALYSIS

The standard of review

[19]            I accept the submission of the respondent the standard of review for a PCDO's decision is patent unreasonableness.

[20]            My colleagues Justice Henaghan in Ozdemir v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1522 and Justice Blanchard in Alam v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 60, based on analysis of previous jurisprudence, confirmed this standard of review.

[21]            I am fortified in their conclusion by the recent unanimous decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.R. 1 at paragraphs 28 to 32, in a case dealing with the Minister's decision a refugee constituted a danger to the security of Canada. The Court said this at paragraph 29:

[29]        The first question is what standard should be adopted with respect to the Minister's decision that a refugee constitutes a danger to the security of Canada. We agree with Robertson J.A. that the reviewing court should adopt a deferential approach to this question and should set aside the Minister's discretionary decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion. [emphasis mine]

[22]            Justice Iacobucci in Southam Inc. et al. v. Director of Investigation and Research, [1997] 1 S.C.R. 748, drew the distinction between "unreasonable" and "patently unreasonable" which he says lies in the immediacy and obviousness of the defect. He stated:

[57] . . . If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable... . This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record.

DISCUSSION AND CONCLUSIONS

[23]            In this case, I am of the view the PCDO's decision is patently unreasonable because many of the material findings of fact she made cannot be supported by the evidence: in some cases, the PCDO ignored or misconstrued the evidence and in others, she based the findings on assumptions without any evidenciary foundation.

[24]            First, the PCDO found the applicant's fear of reprisals at the hands of the Awami League partisans to be subjective. She stated:

... Ses craintes envers les travailleurs de la Ligue Awami sont subjectives et ne sont pas fondées sur des éléments de preuves convaincantes. D'autant plus, selon la preuve documentaire, que le parti de la Ligue Awami a été porté au pouvoir le 12 juin 1996, avec le support du parti Jatiya, soit 10 mois après son départ. Le requérant ne m'a satisfaite qu'il pourrait être la cible des partisans du parti de la Ligue Awami.

[25]            The U.S. DOS Country Report on Human Rights Practices2000 for Bangladesh which the PCDO referenced as one of the documents she consulted, clearly establishes her finding was erroneous. It states that in late 1998, former President Ershad, head of the Jatiya Party, took a stronger stance against the government and subsequently entered into an alliance with other opposition parties to pressure the government to step down. It notes, at year end, Mr. Ershad remained in jail on a charge concerning alleged misuse of power and corruption.

[26]            Second, the PCDO found his fear of being arrested or of being the victim of police corruption immediately upon his return was not established. She observed no arrest warrant had been issued against him and he had not succeeded in demonstrating he was a known political activist. She, however, recognized the documentary evidence revealing corrupt practices by the police and the judiciary, at the lower levels, is influenced by the government. She added:

Cependant, elle révèle que le niveau judiciaire supérieur est indépendant et rend des jugements la plus part du temps en faveur des intimés parce que la police ou le gouvernement ne peuvent prouver les accusations. On indique également que les personnes qui ont de l'argent et un avocat peuvent facilement accéder au niveau judiciaire supérieur. Par conséquent, compte tenu de ce qui procède et de son profil personnel, je suis d'avis qu'il pourra obtenir l'accessibilité au système judiciaire et la protection de l'état contrairement à ses allégations. [emphasis mine]

[27]            As I see it, there was no evidentiary foundation for this finding. She had no evidence of the applicant's financial situation. She assumed he had sufficient money to resist any charges which might be brought against him on his return because he had a business. The applicant, in his affidavit in support of this proceeding, denied he had financial resources from his business since it had been attacked several times.

[28]            In addition, the documentary evidence, which she did not have before her, in the form of anAmnesty International Report entitled "Bangladesh: Torture and Impunity" issued in November 2000, indicates the Bangladesh Code of Criminal Procedure allows arrests without warrants and this law has been abused to the point where three Bangladesh human rights organizations have filed a writ of petition in the High Court Division of the Supreme Court seeking mandatory guidelines to check the powers of police to arrest and the powers of the magistrates to remand detainees to police custody.

[29]            Third, the PCDO stated an examination of the evidence did not satisfy her he was an executive member of his local party unit conceding however the members of the Refugee Division did not doubt the fact he was a member of the Jatiya Party. She went on to say:

Cependant, après une audience approfondie, il n'a pas réussi à convaincre le panel qu'il avait le profil d'un activiste politique qui pourrait être exposé à de la persécution. Par ailleurs, la lecture des motifs de la décision de la SSR ne m'a pas permis d'établir qu'il était un politicien de haut profil ciblé par des opposants politiques et qu'il pourrait être exposé à des représailles par les autorités gouvernementales dès son retour. J'ai constaté qu'il n'avait pas répondu adéquatement aux questions du panel et que ses connaissances de la situation politique tant au niveau régional que nationale, étaient très limitées.

[30]            Once again, the PCDO's views seem contrary to the documentary evidence. The Amnesty International Report of November 2000 at page 29 states:

Torture of political opponents by the police is believed to be at the instigation of politicians. Victims could be members of the same party as the instigator, or members of opposing party. Local political leaders are the most frequent victims. [emphasis mine]

[31]            Also, this view discounts he was well-known because of his leadership in a local charitable organization.

[32]            Fourth, the PCDO misinterprets his ex-wife's affidavit thereby drawing an adverse inference he had not left the country for security reasons and his political activities. The PCDO interprets his ex-wife's affidavit to the effect the applicant encouraged her to visit her father "pour profiter de l'occasion pour disparaître. Il n'a jamais donné signe de vie à son épouse par la suite et il ne s'est jamais préoccupé d'assumer ses responsabilités financières envers sa famille".

[33]            My reading of his ex-wife's affidavit, which was drawn up for divorce court purposes in Bangladesh, convinces me the inference drawn by the PCDO he had not fled for security and political reasons is not reasonable because this is not supported by the evidence.

[34]            Fifth, the PCDO found the applicant's behaviour was not one which could be expected of a person who was a victim of oppression and police brutality because of his opinions and political activities. She states:

Il n'a pas démontré qu'il craignait ses opposants politiques ou la police. J'ai constaté en parcourant son récit qu'il n'avait pas jugé bon de cesser ses activités politiques ou tenter de trouver refuge dans une autre région malgré le fait ... .

[35]            In another part of her reasons, the PCDO had said this on the point:

Le requérant, n'ayant pas démontré qu'il est toujours membre du parti Jatiya après cinq ans d'absence et, était au fait que la situation actuelle de son pays il a le loisir d'adopter à son retour un comportement qui le mettrait à l'abri des partisans des partis politiques adverses.

[36]            I agree with counsel for the applicant the PCDO erred in seemingly requiring the applicant cease his political activities if he returns to Bangladesh. Justice Rouleau in Islam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 135, faced with a similar ruling, wrote:

To suggest that the applicant could return to Bangladesh but not involve himself in political activities appears contradictory to what the International Convention is attempting to protect. A Convention refugee is a person who fears persecution by reason of a membership in a particular group or having a political opinion. The Board failed to analyse this applicant's personal fears and put them in the context with the ongoing political violence in Bangladesh.

[37]              My review of the PCDO's decision leads to a similar finding in this case.

[38]            In closing, I do not endorse counsel for the applicant's view disclosure of a PCDO's risk opinion arises not particularly because of a lapse of time between the filing of a PDRCC application and the making of a decision, but rather because of the consequences on the individual to provide that person an opportunity to comment and/or correct errors before the risk assessment is made.

[39]            Since the applicant succeeds on the substantive ground, I need not address the fairness issue and, in particular, whether the underlying principles in Haghighi, supra, are confined to H & C applications where the immigration officer seeks a risk opinion from a PCDO.

[40]            For all of these reasons, this judicial application is allowed, the PCDO's decision is set aside and the applicant's PDRCC application is remitted for reconsideration by a different PCDO.

                                                                                                                J U D G E          

OTTAWA, ONTARIO

FEBRUARY ...., 2002