Date:
20100401
Docket: IMM-3504-09
Citation: 2010 CF 357
Ottawa, Ontario, April 01, 2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
MOHAMMAD
ZILANI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application filed pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c.27 whereby Mr. Mohammad Zilani (the
“Applicant”) is seeking the judicial review of a decision of a panel of the
Refugee Protection Division of the Immigration and Refugee Board (the “Panel”)
dated June 8, 2009 and bearing RDP file number TA6-16369 that determined that
the Applicant was not a convention refugee and was not a person in need of
protection.
[2]
For
the reasons set out below, this application shall be granted.
[3]
In
recent years, the Supreme Court of Canada has clearly stated that, in reviewing
a decision from an administrative tribunal, a superior court should avoid
substituting its own assessment of the evidence for that of the tribunal. This applies
particularly where the administrative tribunal, as in this case, has had the
opportunity of hearing the testimony viva voce and is thus in a much
better position to assess the credibility of witnesses. When reviewing findings
of fact by a tribunal, the Court must show deference and thus only interfere if
the findings were not reasonable. In this respect, the Court must ascertain
that the tribunal's decision is sufficiently justified and that the
decision-making process is transparent and intelligible. In this case, the
Panel’s decision was not reasonable since it provided almost no explanations in
support of its findings, and those explanations it did provide were not
consistent with the evidence on the record.
Background
[4]
The
Applicant is a citizen of Bangladesh and a Shia Muslim. He claims persecution by Sunni
fundamentalist thugs for his religious convictions. He first came to Canada as a student in
September of 2005. He returned to Bangladesh for a short visit with his ailing father in
June of 2006. He claims that at the time of that visit, thugs from a Sunni
fundamentalist movement came to his father’s home to extort money from his
family if they did not become Sunni Muslims. He further claims that those
threats were not idle threats: he was indeed kidnapped by these thugs on June
21, 2006 and a ransom was demanded if he did not convert.
[5]
The
Applicant also claims that he met a Bengali woman over an internet dating site
and eventually married her. His wife was very young at the time of the marriage
and she is a Sunni Muslim. His wife’s family was very upset by the marriage and
lodged a complaint against him with the police.
[6]
Since
Sunni fundamentalist thugs as well as the police were after him, he decided to
leave Bangladesh for Canada in mid-2006. He
nevertheless returned to Bangladesh for a few days between
November 1, 2006 and November 5, 2006 in order to visit his ailing father who
had been hospitalized for cancer treatments. He claims that this was a secret
visit during which he lived in a friend’s home to avoid being found by the
police or the Sunni fundamentalist who had threatened him. Upon his return to Canada, he made his refugee
protection claim.
The decision
under review
[7]
The
decision fills two pages, and a summary of the Applicant’s claims constitutes a
large portion thereof. The main ground for the decision was essentially that the
Panel did not find the Applicant or his story credible. In a four-paragraph
analysis, the Panel found:
(a)
“[t]hat the threats and
violence arose from terrorist motivations, which were minimal in nature but not
addressed by the police, is not credible, given his assertion regarding the
influence of his maternal Sunni uncle”;
(b)
“[t]hat he entered
into a mixed marriage after a one-year internet courtship and a personal
meeting of a few days defies belief; particularly so, when the marriage was not
in compliance with the legal age requirements. That her parents would not seek
to legally annul such an arrangement, yet pursue and threaten him, makes no
sense”;
(c)
“[the Applicant’s]
voluntary re-availment on not fewer than two (2) occasions establishes clearly
that his alleged fear was not genuine, nor objectively reasonable”; and
(d)
“[w]hile the documentary
evidence indicates tensions do exist between Shi’as and Sunnis, there is only
the merest of possibilities that he would be persecuted, particularly by the
balance of his family who are Sunnis.”
Standard of
review
[8]
The law
is well settled: the applicable standard of review of refugee determination
decisions of the Immigration and Refugee Board based on issues of credibility
and assessment of evidence is that of reasonableness: see, e.g., Aguebor v.
Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732
(QL), (1993), 160 N.R. 315 (F.C.A.); Wang v. Canada (Minister of Citizenship
and Immigration), 2008 FC 1153; [2008] F.C.J. No. 1433 (QL) at para. 4. This
is the standard that I will apply herein.
[9]
According
to Dunsmuir (at paragraph 47): “In judicial review, reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” [emphasis
added].
Analysis
[10]
The
Panel first stated that the record was replete with non-answers to direct
questions put to the Applicant, who was said to have used as an introductory
phrase, the words “I was under risk” as a response to most questions. Yet, when
read carefully, the transcript of the hearing shows clearly that the words “I
was under risk” were not used by the Applicant as an introductory phrase and
were in fact not used at all by the Applicant. Further, the transcript also
shows that the Applicant answered directly almost every question put to him
during the hearing.
[11]
The
Panel further found that, in the light of the influence of the Applicant’s
uncle, it was not credible that the police would not respond to the complaint
lodged by the Applicant against the Sunni fundamentalists who were attempting
to extort money from him. Yet, again, a careful review of the record shows that
the Applicant asserted that his uncle was well-off, but never asserted that he
was influential. Indeed, the Applicant rather asserted that his uncle
recommended to him that he leave Bangladesh since law enforcement in that country left a
lot to be desired and he had become the target of Sunni fundamentalists.
[12]
The
Panel found it not to be credible that the Applicant would marry his wife after
an internet relationship, particularly since she was underage. Yet the record
shows that a form of marriage certificate confirming the wedding was submitted
to the Panel by the Applicant. Moreover, the record also shows that the
Immigration and Refugee Board’s own documentation concerning arranged, forced
and early marriages in Bangladesh notes that “the rate of early marriage in
Bangladesh is among the highest in the world”, and that “[u]nderage marriages
are, however, still considered legally valid … and are permitted under
religious personal laws of the country” (Immigration and Refugee Board of
Canada, Research Directorate, BGD101507.E “Arranged, forced, and early
marriage; the matching process and role of the matchmaker; consequences for
refusing to participate (2003-2006)” 08 August 2006). The Panel does not
explain why it ignored the marriage certificate and country conditions
documentation concerning underage marriages in Bangladesh.
[13]
While
the Panel does note that the documentary evidence indicates that tensions do
exist between Shias and Sunnis in Bangladesh, it found that “there is only the merest of
possibilities that he [the Applicant] would be persecuted, particularly by the
balance of his family who are Sunnis.” Yet the Applicant never claimed that he
was being persecuted by his Sunni family members, but rather by Sunni
fundamentalists who were seeking to convert him and his Shia family members
through the threat of extortion. Moreover, the inference that the Applicant
would somehow be immune from these conversion attempts because part of his
family was Sunni is in itself unreasonable. On the contrary, it could have as
easily been inferred that Sunni fundamentalists would precisely target families
of mixed religious backgrounds as these may be perceived as being easier to
convince to convert.
[14]
Finally,
the Panel found that since the Applicant returned twice to Bangladesh, that showed his
alleged fear to be neither genuine, nor objectively reasonable. First, the
record shows the Applicant only returned once to Bangladesh after the thugs had allegedly threatened
him. Indeed, it was during his trip to Bangladesh in June of 2006, that the Applicant, according
to his claim, was personally subjected to acts of extortion on the part of Sunni
fundamentalist. However, he did return once after these threats had occurred.
The Applicant explained that he returned only for four days in November of 2006
to visit his sick father who had been hospitalized, but he claimed that he then
took great precaution and care for his personally safety: he stayed in hiding with
a friend and went to the hospital by night.
[15]
It
is true that a would-be refugee may no longer claim refugee status if he avails
himself anew of the protection of his country of origin. However, in this case,
the claimant submitted that he did not avail himself of the protection of Bangladesh, but only returned
there in secret for a very short period in order to visit his ailing father.
The Panel did not address these facts in its decision, and it did not explain
why it gave them no weight.
[16]
Furthermore,
the Applicant submitted a sworn statement from the Chairman of the Husaini
Trust in Dhaka confirming the Applicant’s claims, as well as a news article
reporting that his father’s home had been attacked by Sunni fundamentalist
thugs searching for him and seeking to extort money from his family. The Panel
did not explain in its decision why it did not consider these documents, or if
it did, why it did not give them any weight. As I noted in my decision in Ren
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 973, [2009] F.C.J. No. 1181 (QL) at
paras. 25 to 29, the Immigration and Refugee Board need not provide in its
decisions explanations as to each piece of evidence and each document submitted
to it, in particular where it has serious credibility concerns with respect to a
claimant. Comments made by the Federal Court of Appeal in Sellan v. Canada (Minister of Citizenship
and Immigration,
2008 FCA 381, 384 N.R. 163 are to the same effect. However, the finding as to credibility
must have been properly articulated and be consistent with the evidence
submitted. Such is not the case here.
[17]
In Hilo v. Canada (Minister of Employment
and Immigration)
(1991), 130 N.R. 236, 15 Imm. L. R. (2d) 199, [1991] F.CJ. No. 228 (QL)
(F.C.A.) (“Hilo”), the Federal Court of
Appeal noted that, in assessing credibility, “the Board was under a duty to
give reasons for casting doubt upon the appellant’s credibility in clear and
unmistakable terms. The Board’s credibility assessment quoted supra is
defective because it is couched in vague and general terms.” I note that Hilo
has been consistently followed by this court, indeed quite recently in L.Y.B.
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1167, [2009] F.C.J. No. 1470 (QL) at
para. 21.
[18]
As
noted hereinabove, I find that the principle set out in Hilo applies to the Panel’s
decision in this case. In addition, some of the findings of the Panel are
clearly incompatible with the evidence submitted before it, or at the very
least, the Panel did not address why such evidence was disregarded.
[19]
For
the foregoing reasons, I rule that the decision does not meet the standard of
reasonableness, and consequently the application for judicial review is
allowed.
[20]
The
Applicant may or may not be credible, and his story may or may not be have been
made up for the purposes of seeking permanent residence in Canada. That is not an issue
for this Court to decide or to comment upon. Consequently, the matter will be
returned to the Immigration and Refuge Board for determination by another
panel.
[21]
This
case raises no important question justifying certification under paragraph
74(d) of the Immigration and Refugee Protection Act, and consequently no
such question shall be certified.
JUDGMENT
THIS COURT
ORDERS AND DECIDES that:
1. The
application for judicial review is allowed; and
2. The
matter is returned for a new hearing and a new determination before a different
panel of the Refugee Protection Division of the Immigration and Refugee Board.
"Robert
M. Mainville"
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