Docket: IMM-6729-11
Citation: 2012 FC 781
Ottawa, Ontario, June 19, 2012
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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MOHAMMAD MUJIB ALAM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the
decision rendered by the Refugee Protection Division of the Immigration and
Refugee Board (the Board) dated September 6, 2011, which refused the
applicant’s claim to be deemed a Convention refugee or a person in need of
protection under sections 96 and 97 of the Act.
[2]
The
applicant seeks an order setting aside the decision and remitting the matter
for redetermination by a differently constituted panel of the Board.
Factual
Background
[3]
Mr.
Mohammad Mujib Alam (the applicant) is a thirty-four (34) year old citizen of Bangladesh. The applicant
has claimed refugee protection in Canada as he fears persecution
from the police and two Awami League (AL) government goons, identified as Rinku
and Eliash, due to his membership and participation in the Bangladesh
Nationalist Party (BNP) Ward #22 in his native country.
[4]
The
applicant alleges that he first joined the BNP in 2000 and later became an
executive member in July 2001. In July 2006, he became the publicity secretary
of the BNP Ward #22.
[5]
In
November 2006, the applicant asserts that he was attacked and beaten by a group
of people – including Rinku and Eliash – as he was exiting a BNP meeting.
[6]
In
January 2007, the applicant states that AL goons
threatened him several times when the AL backed caretaker government
rose to power and told him to cease his political activities.
[7]
In
2007, the applicant states that he met Mr. Nazrul Alam who assisted the
applicant in obtaining a work permit in order to come to Canada.
[8]
In
November 2007, the applicant asserts that the secretary general of the BNP Chittagong
was arrested and that the police sought him out to arrest him on March 15,
2008.
[9]
On
April 7, 2008, the applicant obtained his Canadian work permit and subsequently
left Bangladesh on April 21,
2008.
[10]
The
applicant states that he was informed by his wife on October 2, 2009 that the
police and the AL goon Eliash had come looking for the applicant.
As he could not obtain an extension of his work permit, the applicant decided
to file a refugee claim in Canada on October 19, 2009.
[11]
The
applicant’s Personal Information Form (PIF) narrative was later amended to
include the fact that his wife had appointed a lawyer in Bangladesh. The lawyer
drafted a letter, dated December 18, 2010, which stated that the police
continue to have an active interest in the applicant, that he was wanted under
the Special Powers Act, and that he would face arrest and detention if
he were to return to Bangladesh.
[12]
The
applicant’s refugee claim was heard by the Board on August 4, 2011.
Decision under Review
[13]
The
Board rejected the applicant’s application as it concluded that the applicant’s
narrative was not credible, that the requirements of sections 96 and 97 had not
been satisfied, that the applicant did not meet the criteria of a refugee sur
place, and that an Internal Flight Alternative (IFA) existed in Bangladesh.
a) The
Applicant’s Credibility
[14]
Generally,
the Board found that it was difficult to extract answers from the applicant,
which could not be attributed to his stutter but rather to his avoidance of the
Board’s questions. The Board concluded that it believed that the applicant was
knowledgeable regarding his country’s history and political arena, that the
applicant was involved with the BNP Ward #22, that there is an ongoing battle
between the AL and the BNP in Bangladesh, and that the AL is currently
in power, though the BNP has retained power in several jurisdictions.
[15]
However,
the Board was of the view that the applicant appeared to be making up his
testimony as he went along. In light of several issues with the applicant’s
testimony and documentation and the lack of corroborative evidence, the Board
concluded that the applicant had failed to credibly demonstrate that he had
ever been personally targeted, contacted, approached, assaulted, detained,
arrested or injured, or that he ever was or would continue to be a person of
interest to the AL goons and to the police were he to return to Bangladesh. By
way of a summary, the Board took issue with the following:
·
The Board
found that the applicant was not an active party member as he testified that he
was “low level”, as he had limited knowledge regarding the role of publicity
secretary, and due to the fact that he could not confirm his attendance at the
party meetings;
·
The Board
noted that it was unlikely that the AL
goons or the police would have come looking for the applicant in March 2008
when he had been issued a police clearance report just weeks earlier;
·
The Board
did not believe that the AL goons and police had come
looking for the applicant again in October of 2009, when the applicant had
already been in Canada for one year. Though the
applicant explained that his agents of persecution knew that his visa had
expired, the Board noted that it found this explanation to be illogical since
the visa had been expired since February 2009;
·
The Board
noted that the applicant could not establish the existence of his agents of
persecution, Rinku and Eliash;
·
The Board
noted that the applicant had no medical report to corroborate his allegations
of sustaining injuries at the hands of his persecutors, though he claimed to
have sought medical attention;
·
The Board
concluded that the applicant had failed to establish that he had been in hiding
after he learned from his wife that the police had looked for him on March 15,
2008;
·
The Board
noted that the applicant’s family in Bangladesh
did not move after the applicant’s departure and has not had any problems to
date;
·
The Board
noted that at the end of the hearing, the applicant added that the AL goons or the police had contacted his
family in March of 2011. However, the Board found that this information had not
been included in his amended PIF and that the applicant did not have a credible
explanation for this omission;
·
Finally,
though the applicant submitted a letter from his lawyer in Bangladesh alleging
that the applicant was sought under the Special Powers Act in Bangladesh, the Board noted that the
applicant’s profile did not match that of an individual that police would
pursue, based on the information in the National Documentation Package.
b) Refugee
sur place:
[16]
Though
the applicant argued that he participated in certain BNP activities in Canada and
submitted documentary evidence to that effect, the Board found that he had
failed to convey how these activities could lead to persecution if he was
removed to Bangladesh. The Board
noted that the applicant did not demonstrate how his alleged agents of
persecution would be made aware of these activities. Consequently, the Board
found that the applicant could not be considered a refugee sur place.
c) Evaluation
of an IFA:
[17]
The
Board concluded that both prongs of the IFA test developed by the case law had
been met in the present case. The Board found that the applicant had failed to
produce evidence to refute the existence of an IFA. The Board also concluded
that political violence in Bangladesh was localized for the
most part and thus that relocation was possible. Furthermore, the Board was of
the view that low-level individuals would not be likely to be pursued outside
of their local areas. The Board also reiterated that the applicant had not
credibly established that his family in Bangladesh had
experienced any difficulties, threats or aggressions due to the applicant’s
alleged involvement with the BNP. The Board proposed that the applicant and his
family could relocate to another area in Bangladesh where the BNP has a
majority positioning – either Bogra, Jaipurhal, Noakhali, Lakshimpur, or Feni –
where he would be able to re-establish his role within the BNP organization,
continue his political involvement if he so chose, and where he could find
employment and a place to live. Therefore, the Board found that it would not be
unduly harsh for the applicant to return to Bangladesh.
Issues
[18]
The issues in this matter are as follows:
1)
Are the Board’s credibility
findings unreasonable?
2) Did the Board err
in its analysis of the applicant as a refugee sur place?
3) Did the Board err
in its IFA analysis?
Statutory Provisions
[19]
The
following provisions of the Immigration and Refugee Protection Act are
applicable in these proceedings:
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Refugee Protection, Convention Refugees and Persons
in Need of Protection
Convention refugee
96. A Convention refugee is a person who, by
reason of a well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country
of nationality, is outside the country of their former habitual residence and
is unable or, by reason of that fear, unwilling to return to that country.
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Notions
d’asile, de réfugié et de personne à protéger
Définition de « réfugié »
96. A qualité de réfugié au sens de la Convention –
le réfugié – la personne qui, craignant avec raison d’être persécutée du fait
de sa race, de sa religion, de sa nationalité, de son appartenance à un
groupe social ou de ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette crainte, ne veut se réclamer de la protection de chacun de ces
pays;
b) soit, si elle n’a
pas de nationalité et se trouve hors du pays dans lequel elle avait sa
résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
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Person in need of protection
97. (1) A person in need of protection is a person
in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on
substantial grounds to exist, of torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or to a
risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that
risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in
every part of that country and is not faced generally by other individuals in
or from that country,
(iii) the risk is not inherent or incidental
to lawful sanctions, unless imposed in disregard of accepted international
standards, and
(iv) the risk is not caused by the inability
of that country to provide adequate health or medical care.
Person
in need of protection
(2) A person in Canada who
is a member of a class of persons prescribed by the regulations as being in
need of protection is also a person in need of protection.
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Personne à protéger
97. (1) A qualité de personne à protéger la personne
qui se trouve au Canada et serait personnellement, par son renvoi vers tout
pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans
lequel elle avait sa résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes – sauf celles infligées au mépris des normes internationales – et inhérents
à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à
protéger
(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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Standard of Review
[20]
The
Court notes that it is trite law that the standard of reasonableness applies
when reviewing a Board’s assessment of an applicant’s credibility and of the
existence of an IFA (Vargas v Canada (Minister of
Citizenship and Immigration), 2012 FC 129 at paras 17-18, [2012] FCJ No 158; Mejia
v
Canada (Minister of Citizenship and Immigration), 2009 FC 354 at para
26, [2009] FCJ No 438; Diaz v Canada (Minister of Citizenship
and Immigration); Diaz
v Canada (Minister of Citizenship and Immigration), 2008
FC 1243 at para 24, [2008] FCJ No 1543). As the Supreme Court of Canada indicated
in the case of Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir],
the Court will therefore concern itself with the “existence of
justification, transparency and intelligibility within the decision-making
process” and with “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47).
Analysis
[21]
The
Court will begin its analysis by examining the Board’s conclusions on the
applicant’s credibility. The Court recalls that pursuant to the case of Aguebor
v Canada (Minister of Employment and Immigration), [1993]
FCJ No 732, it is the Board that is in the best position to assess the evidence,
consider the testimony, attach probative value, and evaluate the credibility of
a refugee claimant. The Court also recalls that a Board’s decision should only
be overturned in the clearest of cases. After
having reviewed the testimonial and documentary evidence in the file, the Court
finds that the Board’s credibility findings were reasonable in light of the
numerous problems that it raised in the applicant’s narrative.
[22]
At hearing before the Court, the applicant directed the
Court to a number of details and argued that the Board had committed fatal
errors. On that point, the applicant argued that the Board failed to mention
the 2010 UK Report (Application Record, pp 58-60). However, a close reading of
that report confirms that the 2010 UK Report, although more recent, is a more
general document and does not contradict the findings of the 2006 Report
(Tribunal Record, pp 60-61) referred to by the Board. Hence, although the
applicant may wish for a reconsideration of the evidence (e.g. the applicant’s
testimony and documentary evidence – the police clearance, Tribunal Record at p
149, and the lawyer’s letter, Tribunal Record, p 193), the Court is not
entitled to do so. The Court is of the view that the Board’s decision, when
read in its entirety, was reasonable in light of the applicant’s failure to
credibly establish the central elements of his narrative. Further, and contrary
to the applicant’s allegation, the Board’s conclusions are in no way
contradictory. Rather, and the Court agrees with the respondent, the Board
simply believed the applicant’s testimony on some points but found numerous
problems with the applicant’s narrative on other points.
[23]
On
the issue of the applicant’s claim to be a refugee sur place, again the
Court sees no reason to intervene in the Board’s decision. The Board’s findings
on this point were clearly articulated, well explained, and it applied the
correct test. Further, no evidence was adduced that there was media coverage or
that the picture could potentially give rise to a negative reaction on the part
of the authorities. The applicant’s argument is speculative on that point.
[24]
While
the applicant may disagree with the Board’s assessment of the evidence, the
applicant has failed to persuade the Court that the Board’s conclusion was
unreasonable. My colleague, Justice Tremblay-Lamer in Ngongo v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No 1627 at para 23, provided the
following observations:
[23] … The only relevant question is
whether activities abroad might give rise to a negative reaction on the part of
the authorities and thus a reasonable chance of persecution in the event of a
return.
[25]
Thus,
the Court is of the view that the Board correctly applied the test for a
refugee sur place claim and could reasonably conclude that based on the
testimony of the applicant, i.e. his role as a publicity secretary and the
documentary evidence (Tribunal Record, pp 65 and 66) that, as a low-level
member, the applicant would not likely be at risk.
[26]
Finally, with respect to the Board’s IFA analysis, the Court
cannot accept the arguments of the applicant. The Court notes that it is trite
law that the burden of demonstrating that an IFA is unreasonable is a heavy
one, which falls upon the shoulders of a refugee claimant (Ranganathan v Canada (Minister of
Citizenship and Immigration) (CA), [2000] FCJ No
2118, [2001] 2 FC 164). The Court observes that the Board correctly
applied the test outlined in the case of Rasaratnam v Canada (Minister of
Employment and Immigration) (CA), [1991] FCJ No 1256, [1992] 1 FC 706, to conclude
that the applicant had a viable IFA in several places in Bangladesh where he would not be
obliged to cease his political activities. The Court reiterates the
respondent’s argument that the applicant, a low level member, submitted no
credible evidence to refute the proposed IFA.
[27]
Also, the Court recalls that the Board’s findings with
respect to the existence of an IFA and the applicant’s credibility are both
determinative.
[28]
For all of these reasons, and, in light of the standard of
reasonableness, the Court must defer to the Board with respect to these
findings.
[29]
The Court finds that the Board’s conclusions
are supported by the evidence and that they fall “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47). Therefore, the applicant’s application for judicial
review will be dismissed.
[30]
The parties have not proposed any questions for
certification and none arise.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is dismissed;
2.
There
is no question for certification.
“Richard
Boivin”
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