IMM-850-97
BETWEEN:
FEROZ
ADEEL KAZI,
Applicant,
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION,
Respondent.
REASONS
FOR ORDER
PINARD J.
The applicant
seeks judicial review of a decision of the Convention Refugee Determination
Division (the CRDD) dated February 13, 1997, in which the Refugee Division
determined he was not a Convention refugee as defined in subsection 2(1) of the
Immigration Act (the Act).
The CRDD found
the applicant to be credible but determined that because of changed
circumstances in Bangladesh the applicant's fear of persecution is no longer
well founded. The reasons for this determination are found in the following
excerpts from the CRDD's reasons:
In June, 1996, the Awami League won an overwhelming
victory in the general elections in Bangladesh and formed the government
there. The claimant, by virtue of his being a member of the BCL, is also a
member of the Awami League, its parent body. . . .
Notably, the principal agent of the claimant's
persecution is the BNP goons. These are the ones who drove him from his
country out of fear for his life. The capacity of the BNP goons to drive fear
into the minds of their rivals stemmed, mainly, from the observation that the
BNP government was unwilling to curb their violent excesses and acts of
criminal abuse; evidently because such activities secured its political
interests.
[. . .]
It is useful to be reminded, here, that the basis of the
claimant's fear of persecution is that the BNP government was unwilling - not
necessarily unable - to assure his protection from BNP goons. Certainly, he
cannot reasonably make the same charge regarding the government of his own
party. Moreover, exhibits adduced in evidence at the hearing show, that the Awami
League government has declared its intention to stamp out the inappropriate or
illegal use of political influence . . ., has taken steps to curb terrorism . .
., has established working alliances with other rival parties . . .; and, that
the police is intervening in a politically impartial way to suppress violent
encounters . . . - sporadic or gratuitous incidents not withstanding [sic].
Almost as a second thought, the claimant attempted to
justify his fear of returning to Bangladesh, by referring to the claim that he
had been critical of the armed cadres within his own group. He would suggest
that there is some lasting anger towards him, that would deny him the
protection of his party and its government. The panel has observed from the
claimant's own testimony, that he had merely been rebuked, but was not harmed
in any way over this matter. Notably, he had continued his membership in the
group, and had involved himself in its political activities much beyond the
time when this incident occurred.
With respect
to the specific issue of "changed circumstances", the leading case is
the Federal Court of Appeal decision in Yusuf v. M.E.I. (1995), 179 N.R.
11. In that case, the Court of Appeal clarified the law in this area in
holding that the assessment of whether there are "changed
circumstances" in a country is a factual, rather than a legal
determination. The key consideration is whether the changes in the political
situation are effective and durable, as opposed to merely transitory, and what,
if any bearing, these changes have on the claimant's specific situation. As
stated by Hugessen, J.A., at page 12:
We would add that the issue of so-called "changed
circumstances" seems to be in danger of being elevated, wrongly in our
view, into a question of law when it is, at bottom, simply one of fact. A
change in the political situation in a claimant's country of origin is only
relevant if it may help in determining whether or not there is, at the date of
the hearing, a reasonable and objectively foreseeable possibility that the
claimant will be persecuted in the event of return there. That is an issue for
factual determination and there is no separate legal "test" by which
any alleged change in circumstances must be measured. The use of words such as
"meaningful", "effective" or "durable" is only
helpful if one keeps clearly in mind that the only question, and therefore the
only test, is that derived from the definition of Convention Refugee in s. 2 of
the Act: does the claimant now have a well-founded fear of persecution? Since
there was in this case evidence to support the Board's negative finding on this
issue, we would not intervene.
In the present
case, the Board found that there were "changed circumstances" in
Bangladesh which were sufficient to support a finding that the applicant no
longer had a well-founded fear of persecution in that country. The Board found
that there was evidence to show that the Awami League government had declared
its intention to stamp out the illegal use of political influence, had taken
steps to curb terrorism, and had taken other measures which allowed the Board
to conclude that the applicant could obtain protection from the authorities in
the event that goons from rival political parties sought to antagonize him.
The Board also found that the applicant would not be at risk from his own party
as a result of his criticism of the violent activities of the armed cadres of
the BCL, because he had maintained his membership and had continued his
activities with that party long after the occurrence of this incident.
In light of
the evidence, I cannot conclude that the finding by the Board was perverse,
capricious or so unreasonable as to warrant the intervention of this Court.
While this Court might have drawn a different conclusion with respect to the
durability and effectiveness of the political changes in Bangladesh, it is not
the role of this Court to substitute its own interpretation of the evidence for
that of the Board. In my opinion, there was evidence in the file to support
the Board's conclusion that there were "changes which have occurred in the
political environment of Bangladesh . . . [which] are sufficiently meaningful
and effective in nature that the claimant's fear of living in his homeland could
no longer be well-founded". Consequently, there is no basis for
interfering with the Board's decision on this ground.
The applicant
also challenges the Board's decision on the ground that the Board committed a
reviewable error by failing to consider subsection 2(3) of the Act. Subsection
2(3) is included in the Act to address situations where, despite "changed
circumstances" in a claimant's country of origin, he or she may
nonetheless be recognized as a Convention refugee if the past persecution the
claimant suffered was of such an appalling nature that he or she should not be
forced to return to that country. The relevant provisions read as follows:
2. (2) A person ceases to be a Convention refugee when
[. . .]
(e) the reasons for the person's fear of persecution in the
country that the person left, or outside of which the person remained, cease to
exist.
(3) A person does not cease to be a Convention refugee by virtue of
paragraph 2(e) if the person establishes that there are compelling
reasons arising out of any previous persecution for refusing to avail himself
of the protection of the country that the person left, or outside of which the
person remained, by reason of fear of persecution.
In Canada
v. Obstoj, [1992] 2 F.C. 739, the Federal Court of Appeal determined that
the circumstances contemplated by subsection 2(3) of the Act, while only
applicable to a "tiny minority" of refugee claimants, nonetheless
forms part of the overall determination of whether a person qualifies as a Convention
refugee as defined in the Act.
In the present
case, it is clear that the applicant did not specifically raise subsection 2(3)
at the hearing. Nowhere in the transcript is any mention made of this
provision. The applicant nonetheless seeks to argue that the Board erred in
law by failing to consider subsection 2(3), on the grounds that his counsel
addressed the issues arising from subsection 2(3) in his submissions before the
Board, even if he did not directly mention the article itself. In my opinion,
the applicant's argument may be dealt with without necessarily deciding whether
a claimant has to specifically refer to subsection 2(3). In addition to the
failure of the applicant to raise subsection 2(3), it is my opinion, having
read the transcript, that the issue of "compelling reasons arising out of
any previous persecution" cannot be said to be made out on the facts and
submissions presented to the Board. More specifically, it has not been shown
that the applicant is suffering "continuing psychological after-effects of
the previous persecution" (see Arguello-Garcia v. M.E.I. (1993), 70
F.T.R. 1 (F.C.T.D.); and Shahid v. M.C.I. (1995), 89 F.T.R. 106, at page
111 (F.C.T.D.)). Accordingly, the Board committed no error by failing to
address subsection 2(3) of the Act in its reasons.
For the
foregoing reasons, the application for judicial review is dismissed.
Given the circumstances, this is not a
matter for certification pursuant to subsection 18(1) of the Federal Court
Immigration Rules, 1993.
OTTAWA, Ontario
August 15, 1997
JUDGE
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