Maksudur v. Canada (Minister of Citizenship and Immigration), docket IMM-5784-98

Date: 19990908

Docket: IMM-5784-98

OTTAWA, ONTARIO, THIS 8^TH DAY OF SEPTEMBER 1999

PRESENT:      THE HONOURABLE MR. JUSTICE NADON

BETWEEN:

     RAHMAN MAKSUDUR,

     Applicant,

     - and -

     THE MINISTER,

     Respondent.

     ORDER

     The application for judicial review is allowed. The decision of the Immigration and Refugee Board, dated September 25, 1998 is set aside and the matter shall be returned to a different panel for reconsideration.

     Marc Nadon

     JUDGE

Date: 19990908

Docket: IMM-5784-98

BETWEEN:

     RAHMAN MAKSUDUR,

     Applicant,

     - and -

     THE MINISTER,

     Respondent.

     REASONS FOR ORDER

NADON J.

[1]      The Applicant seeks to set aside a decision of the Refugee Division of the Immigration and Refugee Board ("the Board"), dated September 25, 1998, pursuant to which the Board concluded that the Applicant was not a Convention refugee.

[2]      At pages 2 through 4 of its decision, the Board states its reasons for coming to a negative conclusion:

After analysing all the evidence, both oral and documentary, the panel has reached the conclusion that the claimant is not a "Convention refugee" for the following reasons.

The claimant was confronted by the panel with the fact that all the documentary evidence mentions the existence of permanent violence which characterizes political life in Bangladesh. Dozens of students are killed and thousands of others injured every year. All the political parties, including the one the claimant belongs to, make use of their student wings to foment that violence on campuses transformed into veritable arms depots. During various strikes and demonstrations, weapons and explosives are often used.

When it formed the government a few years ago, the BNP itself had to moderate and discipline its own student wing, Jatiyatabadi Chhatra Dal (JCD), to which the claimant belonged, because of the political instability engendered by that extremism.

The claimant admitted those facts ("yes, I am not denying it"), but pointed out to the panel that he was against violence and had joined that organization to try and contain political violence. That explanation is hard for the panel to believe as we cannot imagine how the claimant could reasonably have hoped to achieve his ends. Moreover, he never stated the means he would have used to put an end to that political violence.

The panel pointed out to the claimant that if, as he alleged, he had not committed any acts of violence, he had nothing to fear from the police. The documentary evidence states that BNP members are in danger of arrest "only if they are involved in violence during demonstrations", which was not the case with the claimant, who testified his activities were peaceful.

He also admitted that the political meeting on May 1, 1997, at which he allegedly criticized the government, was perfectly legal.

The claimant also alleges he is afraid of being arrested under the SPA. The documentary evidence cited above states that: "nobody is under threat merely because of membership of an opposition political party" and "there would be no ground to fear arrest on return to Bangladesh unless a person has been involved in criminal activities". That is not the case with the claimant.

Moreover, Exhibit A-14 cited above states that: "the courts continue to rule the vast majority of SPA cases illegal, an indication of the independence of the judiciary as well as of the political manner in which the government uses the SPA".

The panel also gives no credence to the incident of July 10, 1997, during which the claimant was allegedly pursued by members of the AL. He proved unable to explain to the panel how he managed to recognize two of his assailants when, according to his testimony, there were 100 yards away from him in the dark at 10 o"clock at night.

As for the risk of the claimant being attacked by political adversaries if he returned to his country and resumed his activities, that possibility cannot be excluded, as criminal violence is deeply integrated into the political life of Bangladesh. The panel thinks that the claimant would be taking a calculated risk but we certainly cannot conclude that the assaults and other forms of aggression against the person committed by various political groups, which are in turn victims and aggressors, constitute any form of persecution.

For all these reasons, the panel finds that the claimant, Rahman MAKSUDUR, is not a "Convention refugee" as defined in section 2(1) of the Immigration Act .

The Applicant is a citizen of Bangladesh. He arrived in Canada on August 9, 1997, and shortly thereafter, claimed refugee status. He claims to have a well founded fear of persecution by reason of his political opinions. Specifically, the Applicant states that he was a member of the executive of Ward 55 of the Bangladesh Nationalist Party ("BNP") and, as a result, he was attacked on numerous occasions by goons from the Awami League ("AL"). He also stated that the Bangladesh police were still looking for him in May or June 1998, even though he had left his country in August 1997.

The Board"s decision is difficult to understand. The decision is, in my view, nonsensical. Although the Board states that it cannot believe the Applicant regarding the July 10, 1997 incident, it does not make a credibility finding adverse to the Applicant. Rather, the Board appears to be saying that because "criminal violence is deeply integrated into the political life of Bangladesh", the Applicant cannot claim that he will be persecuted. In that respect, the last paragraph of page 3 of the Board"s decision is telling:

As for the risk of the claimant being attacked by political adversaries if he returned to his country and resumed his activities, that possibility cannot be excluded, as criminal violence is deeply integrated into the political life of Bangladesh. The panel thinks that the claimant would be taking a calculated risk but we certainly cannot conclude that the assaults and other forms of aggression against the person committed by various political groups, which are in turn victims and aggressors, constitute any form of persecution.

In paragraphs 15, 16 and 17 of his Memorandum of Fact and Law, counsel for the Applicant, Mr. Sloan, makes the following submissions:

15. The Board"s finding excludes the violence which the applicant fears, and which the Board accepted, as constituting persecution because his own party had goons which had attacked members of other parties. This is the same finding that the Federal Court of appeal had made in the Ward case, when it found that his association with the Irish National Liberation Army could not be the nexus of his fear to the refugee definition, because of the violent of the INLA.

16. The Supreme Court set that decision aside and recalled that the real basis of such claims was the imputed political opinions which come with membership in a political organisation, and in Ward"s case, his disagreement with that political organisation.

17. In the case at bar, it is not alleged that the BNP is a terrorist organisation, as was alleged in the case of the INLA. The BNP was elected to the Bangladesh parliament as governing party in 1991. The fact is that it is primarily an electorally active party, and the evidence shows that that is what the applicant"s activities in the party were, so any violence which was to be directed at him by goons associated with other political parties is necessarily linked to his political opinions, either imputed or expressed.

In my view, the Board"s decision is not sound. Was the Board attempting to say that the acts of violence allegedly perpetrated against the Applicant were criminal in nature and therefore, could not constitute persecution within the meaning of the Refugee Convention? Or perhaps the Board was attempting to say that because violence in Bangladesh was a "tool" used by all political parties, it could not constitute persecution within the meaning of the Refugee Convention?

I have read the Board"s decision on a number of occasions and I am still unable to understand the rationale thereof. What the Board had to decide was whether the claimant"s story was true and, if so, whether there was a likelihood of persecution if he returned to Bangladesh. In my view, the Board decided neither of these questions. Consequently, the decision will be set aside and the matter shall be returned to a different panel for reconsideration.

Before concluding, however, I would like to add a few comments. The hearing of this claim took place in Montreal on July 15, 1998. The transcript of the evidence is comprised of 57 pages. The actual questions and answers which deal with the substance of the claim begin at page 7 and terminate at page 56. After reading the transcript of the evidence given on July 15, 1998, it is impossible to say whether the Applicant"s story is true or not. It is impossible to say because the Board members and counsel for the Applicant at the hearing¹ did not appear to be interested in posing sufficient questions so as to enable them to determine whether, in fact, the Applicant was telling a true story. The answers given by the Applicant, throughout his evidence, are vague and unresponsive. The answers provide "generalities", but no specifics. Part of the reason for this is the inability of those questioning to pose proper questions to the Applicant.

I indicated earlier the number of pages in the transcript, simply to highlight that the hearing could not possibly have lasted very long. Perhaps the reason for this is that Board members are under instructions to hear more than one claim per day. Be that as it may, the fact of the matter is that they did not, in my view, spend sufficient time in their attempt to discover the truth. In most refugee claims, the prime issue, if not the only issue, is whether the story related by the applicant is true. Consequently, Board members have a duty to the applicant and to Canada to employ their best endeavours in the pursuit of that goal. In my view, the Board in the present matter certainly did not do its best to discover the truth.

What this claim shows is that claimants are not prepared to say more than they have to to substantiate their claim and Board members are not prepared to spend the time necessary to discover the truth. Either way, the result is not a good one.

In conclusion, I would strongly suggest that Board members be given a copy of the book written by Francis L. Wellman, entitled The Art of Cross-Examination (London: MacMillan & Co., Ltd., 1904). I know there are those who take the position that Board members ought not to cross-examine refugee claimants, apparently on the premise that if they claim to be refugees, they must be so. I am not one of those. The purpose of the Refugee Convention is to provide a safe haven to true refugees and not to those who claim to be refugees. I should perhaps add that many counsel for the applicants appear to forget that it is their client"s burden to adduce sufficient proof to establish that their client has a well founded fear of persecution. Unfortunately, our refugee system has become a "game". None of this is conducive to the task at hand, i.e. to admit into Canada people who indeed have a well founded fear of persecution. The losers are the true refugees and Canada. There is no need to say who the winners are.

     Marc Nadon

     JUDGE

OTTAWA, Ontario

08 September 1999

__________________

     ¹      At the hearing, the Applicant was represented by a different counsel.