Date: 19990311
Docket: IMM-2831-98
BETWEEN:
MOHAMMED AZAD KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
[1] This is a judicial review application pursuant to section 18.1 of the Federal Court Act of the decision of the Immigration and Refugee Board of Canada, Refugee Division, rendered on May 25, 1998, holding that the applicant is not a Convention refugee.
FACTS
[2] The Applicant, Mohammed Azad Khan, a 21 year old citizen of Bangladesh, claims a well-founded fear of persecution on the basis of political opinions due to his involvement and activities in Jativatabadi Chatra Dal ( the "JCD"), the student wing of the Nationalist Party (BNP).
[3] Mr. Khan joined the JCD in 1993. As a party member, Mr. Khan attended rallies and meetings, participated in membership drives, put up posters and other tasks. While attending the Government City College, which was a stronghold of the Bangladesh Chatra League (the "BCL"), the student wing of the Awami League (AL), Mr. Khan worked with the Chittagong city branch and other members of the same college to open a branch of the JCD at the college.
[4] Mr. Khan claimed that during his involvement in the organization of a rally held on December 27, 1996 to protest the disruption of the JCD"s activities by the BCL he was assaulted by two goons, for which he received medical attention. Mr. Khan claimed he was also threatened that his fingers would be severed if he continued his activities with the JCD. Despite the threats, Mr. Khan persisted in organizing the rally. During the rally, while the police intervened to disperse the crowd, BCL goons exploded bombs and opened fire creating chaos. About 200 JCD workers were arrested but Mr. Khan was not one of them. Despite this, Mr. Khan attended and spoke out at other meetings and demonstrations.
[5] On that evening, Mr. Khan was informed by his father that the police who were acting on the order of the Mayor of Chittagong, had been looking for him. Mr. Khan then decided to stay at a friend"s house. Mr. Khan also claimed that as a result of his involvement he became the target of the BCL workers who looked for him at the family business and at the college.
Decision of the Refugee Board
[6] The Board dismissed Mr Khan"s application on the basis that he was not a Convention refugee. In coming to this conclusion, the Board found that Mr. Khan was not credible, considered his delay in leaving Bangladesh, internal discrepancies between his testimony and PIF regarding dates of travel between Dakka and Chittagong, the delay in claiming refugee status in Canada, the absence of an objective fear of persecution.
PARTIES" SUBMISSIONS
Applicant"s submissions
[7] The Applicant submits that the Board failed to consider all the evidence submitted by the Applicant with a view of corroborating his political involvement and activities. This is evident from the Board"s decision which does not refer or discuss any of the documents relating to Mr. Khan"s political involvement and activities as well as the injuries which resulted therefrom. The rules of procedural fairness require that a claimant be informed of the reasons for rejecting uncontradicted evidence establishing a well-founded fear.
[8] The Applicant also argues that the Board"s finding regarding the delay Mr. Khan took in leaving Bangladesh and the delay in seeking refugee status is unreasonable in light of Mr. Khan"s reasonable explanation. There was no valid reason to draw an adverse finding based on these facts. Mr. Khan explained that between April 3 and April 28 of 1997, he was in hiding as he was waiting for his agent"s advise on the safest day to leave the country. Mr. Khan also provided three reasonable reasons for not claiming refugee status immediately when he arrived in Canada. Mr. Khan waited more than two months before claiming refugee status as he was unaware of the possibility of seeking political asylum until July 1997; he did not initially know the process in claiming refugee status; and he held a valid student visa to stay in Canada for 14 months.
[9] I am satisfied that the Board was correct in not accepting the applicant"s explanation as reasonable for not claiming refugee status for more than two months after arriving in Canada.
Respondent Minister"s submissions
[10] The Minister submits that the Board"s decision states that the Board took into consideration Mr. Khan"s testimony as well as "the other evidence in the case". Further, it is also submitted that the Minister is presumed to have weighed and considered all the evidence until the presumption is rebutted, which was not done in this case. The fact that specific documents were not mentioned is not fatal and does not mean that they were not considered. The documents were part of the record which was weighed as to its reliability and cogency. Nevertheless, if such error was committed, which is not admitted, it is not material as there were other reasons provided in support of the Board"s conclusion that the Applicant did not have a well-founded fear of persecution in Bangladesh.
[11] The Minister submits that the Board did not err in considering the delay in applying for refugee status as it undermines both the subjective and objective fear. Also, the Board"s conclusion that if the applicant was wanted by police it would amount to prosecution and not persecution. Further, as the Applicant claimed that he suffered at the hands of the BCL goons, the student wing of the Awami-League Party, it was open to the Board to conclude as it did that there was no "persuasive evidence" to show that the Awami-League government was behind the violence inflicted upon the Applicant.
ISSUE
[12] Whether the Minister erred in failing to consider documentary evidence submitted by the Applicant or in assessing whether he had a well-founded fear of persecution?
ANALYSIS
[13] The Applicant claims that the Board failed to consider the evidence corroborating his political involvement and resulting persecution in coming to a conclusion about his credibility and refugee status. The documents are a letter from his political organization setting out his political involvement; a document listing his name as a student organization officer; a letter from Mr. Khan"s father indicating that students of the government party and police came to look for him while he was absent; a letter from Mr. Khan"s brother describing an attack on his brother by political goons who inquired about Mr. Khan"s whereabouts; a medical report corroborating Mr. Khan"s injuries in December 1996.
[14] It is interesting to note that on the original letter from the applicant"s father, found at page 105 and 106 of the applicant"s record, the letter is dated 8/2/98. On the translation of the said letter, the date reads 4/1/98.
[15] It is also interesting to note that the date appearing on the letter from the applicant"s brother appears to read 09/02/98 while the translation reads 07/02/94. Obviously, the "94" is a typographical error. Is it also a typographical error for the "07"? (page 108 and 109 of the applicant"s record).
[16] I obviously do not have an explanation for the above.
[17] It is trite law that the Board has an obligation to consider all the relevant evidence in coming to its conclusion. However, the Board does not have the duty to discuss or refer to every piece of evidence considered in coming to its conclusion, and the Board is presumed to have weighed and considered all the evidence, unless the contrary is shown: Florea v. M.E.I. (F.C.A.) (June 11, 1993, A-1307-91); Williams v. M.C.I., [1997] 2 F.C. 646 (F.C.A.) At 664.
[18] The Applicant relies on Manickanadarasa Mahanandan et al. v. M.E.I. (1994) (A-608-91, August 24, 1994), for the proposition that the Board"s failure to refer or mention evidence central or highly important in its reasons can constitute a reviewable error:
| Before us, the Appellants contend that the Board failed to consider adequately or at all the objective basis of their fear. First, the Appellants say that the documentary evidence, which was considerable, if properly assessed, could well have enhanced the Board's appreciation of the objective basis of their claim. They say, secondly, that beyond a bare acknowledgment that the evidence presented at the hearing consisted of documentary evidence which constituted background information on Sri Lanka, the reasons of the Board were bereft of any further reference to the documentary evidence, let alone any consideration of their claim in light of that evidence. Next, they say that the Board's assessment of their claim might well have been different, if they had considered it in that light and, further, that by failing to do so, the Board fell into reversible error. |
|
| We agree. Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board's appreciation of an Appellant's claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the Applicant's claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand. |
|
[19] The Applicant also relies on Mahamood Rehman v. Canada (M.C.I.), (F.C.T.D.) (IMM-2175-96, June 4, 1997) for the proposition that evidence must be analyzed in the Board" reasons and not just acknowledge that the evidence exists and, that it is not an answer to an allegation of ignoring evidence that the Board based its finding, in part, on a claimant"s demeanour. Justice McGillis states:
| In its reasons for decision, the Board found that the applicant was not a credible witness for various reasons and made a negative comment concerning his demeanour. However, in conducting its analysis, the Board made no reference to documentary evidence tendered by the applicant in support of his claim, save and except to indicate that he had "... also presented personal documents." The evidence submitted by the applicant to the Board included, among other things, letters from the Jatiya Party and the Nirmul Committee confirming his membership and activities in those organizations, as well as a medical certificate indicating that he had been hospitalized for ten days due to severe injuries suffered in an assault committed on November 17, 1994. The evidence also included a letter from a lawyer indicating that the applicant had been arrested and detained for a month in early 1994 "... on a charge of participating in an agitation against government". The lawyer's letter further indicated that the police wanted to interrogate the applicant, who is a suspect in a pending case, "... in connection with a political unrest in his locality on the 18th of December 1994." |
|
| In my opinion, the Board erred in failing to consider in its analysis the independent evidence tendered by the applicant which appears to corroborate his testimony concerning the two significant incidents precipitating his departure from Bangladesh. [See Khan v. M.E.I. (file no. IMM-415-93, August 23, 1994, F.C.T.D.), [1994] F.C.J. No. 1226]. I also note that, in making its adverse findings of credibility, the Board made no reference to the two important events which appear to be corroborated by the evidence tendered by the applicant. |
|
[20] In the present case, the Board"s reasons state that Mr. Khan"s testimony and "other evidence were considered." There is no other reference in the decision to the documentary evidence. The Board failed to say that the applicant submitted documents to be considered for his claim.
[21] The Minister argues that failure to discuss or refer to the documents in its reasons is not a reviewable error. The Minister makes the following submissions with respect to the documents listed by the Applicant:
| i) The list of student organization officers merely states that Mr. Khan was the Assistant-General Secretary and does not corroborate that he suffered persecution; |
| ii) The letters from his father and brother do not meet the test of being "timely" and prepared by a "reputable independent author" as established in Gourenko; |
| iii) The medical report does not indicate who inflicted the injuries he suffered and is not central or vital to the his claim; |
| iv) The letter from the Bangladesh Nationalist Student Party was prepared a few weeks before the date scheduled for the Commission"s hearing and, aside from confirming that Mr. Khan was a dedicated worker, the letter recounts information provided by the Applicant himself. |
[22] Based on the foregoing submissions, the Minister argues that the Board did not commit any error in not mentioning or referring to those documents as there were reasons justifying it.
[23] In my view, the issue is whether the documentary evidence is material or central to the issue before the Board who found that Mr. Khan was not credible. The documentary evidence adduced by Mr. Khan was submitted to corroborate his involvement and activities in politics with a view to demonstrating that his fear of persecution on the basis of political opinions was well-founded. In my view, the documents are important to the issue before the Board, especially in light of the Board"s finding of lack of credibility.
[24] In my view, the Board"s failure to discuss or refer to the documents in their decision which in part may support the Applicant"s claim which was dismissed for lack of credibility amounts to a reviewable error. Had the evidence been considered, the result may have been different.
[25] It is for the Board to decide what weight to give to the documentary evidence and then set it aside if, in their view, the documents are not relevant or, because the letters come from the applicant"s father or brother and they do not believe the evidence credible.
[26] This was not done by the Board. The Board did not even mention the discrepancy in the dates found in the letters from the applicant"s father and brother.
[27] The Board also failed to mention that the date on the letter from the Bangladesh Nationalist Student party is 05/05/98 which may indicate that it was prepared specifically for the applicant"s refugee hearing and states what the applicant requested to be stated.
[28] In any event, I am satisfied that the failure of the Board to make some reference to the above mentioned documents leads me to conclude that, in giving oral reasons, they failed to give any consideration to the documents.
[29] Therefore, the application for judicial review is allowed. The matter is remitted to a differently constituted Board for rehearing and redetermination on all the issues as well as the issue of credibility but by taking into consideration the documents (letters) filed by the applicant and how much weight should be given to the said documents.
[30] No question was submitted for certification.
"Max M. Teitelbaum"
J.F.C.C.
TORONTO, ONTARIO
March 11, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2831-98
| STYLE OF CAUSE: MOHAMMED AZAD KHAN |
and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MARCH 8, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: TEITELBAUM J. |
DATED: THURSDAY, MARCH 11, 1999
APPEARANCES: Mr. Douglas Lehrer
For the Applicant
Ms. Diane Dagenais
For the Respondent
SOLICITORS OF RECORD: Vandervennen Lehrer
Barristers & Solicitors
45 Saint Nicholas Street
Toronto, Ontario
M4Y 1W6
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990311
Docket: IMM-2831-98
Between:
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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