[3]
The Applicant first became
politically active with the Awami League (AL) when he attended college in Chittagong. In 2002, he became the publicity coordinator of AL
for his region and held this position until after his graduation from college.
This involved issuing invitations to party meetings and events in the area of North Patenga.
[4]
In January 2005, he
began working as a deck-hand on commercial vessels although he retained his
position as publicity coordinator for the AL. He had an assistant who could fulfill
his tasks while he was away.
[5]
In November 2007, the
Applicant returned to Chittagong at a time of much political violence.
The country was under a care-taker government and the AL began to identify and
name individuals who were against their “war for freedom” in various parts of Bangladesh. The Applicant was appointed leader of the group charged
with this task within his region and claims that the group compiled lists of these
individuals for the purpose of identifying them and gathered signatures on petitions
to exclude them from government and bring them to justice.
[6]
As a result of the
Applicant’s activities as group leader, members of the other parties (the
Jamaat, Razakars, Islamic Chhatra and the Bangladesh National Party – BNP)
became very upset and threatened the Applicant warning him to withdraw from his
work, which he did not do.
[7]
On December 2007, the
Applicant was attacked and beaten by five men while walking home and they also
threatened to kill him if he continued to live in Bangladesh. His injuries resulted in him being hospitalized for seven
or eight days. As a result of the attack, the Applicant’s father filed a
complaint with the police.
[8]
On February 21, 2008,
the Applicant was attacked again by three men who beat him up with sticks and
injured his left knee. The men fled when a car approached the scene. Following
the attacks, the Applicant’s father arranged employment for the Applicant on a
ship leaving for Canada. The Applicant left Bangladesh on March 2008 and arrived in Canada
on July 21, 2008.
[9]
The Applicant claims
that he was being persecuted by Islamic groups that are members of the opposite
political party by reason of his political opinion. He claims that he is the
main target for these members as he compiled a list against them.
[10]
In December 2008, the
AL formed the government in Bangladesh.
The
Board’s decision
[11]
The Board denied the
Applicant’s claim. It found that his fear of persecution from the opposing
political party members is not based on objective and trustworthy evidence.
Accordingly, it found that there was no serious possibility of persecution from
the Islamic groups or opposing political party members should the Applicant
return to Bangladesh. It also found that sufficient police
protection was available to him in Bangladesh since his own political party was now in
power.
[12]
The Board found
contradictions and inconsistencies in the Applicant’s testimony and listed
examples of these in its reasons. It acknowledged that certain inconsistencies
in the Applicant’s evidence were minor, but nevertheless found, on the totality
of the evidence, that the Applicant was not credible.
[13]
The Board concluded
that the Applicant had not provided clear and convincing evidence that if he
were to return to Bangladesh, police protection would not be forthcoming
considering that his own political party was in power.
[14]
In rendering its
decision, the Board considered the National Documentation Package on Bangladesh as well as the International Crisis Group Report dated
December 2009. Based on its review of the country documentation, the Board made
a number of findings which recognized the problems with the Police in Bangladesh but nevertheless concluded that state protection was
available to the Applicant and consequently dismissed his application. .
Issues
[15]
The following two
issues are raised in this judicial review:
(a) Did the Board err in finding that
the Applicant was not credible?
(b) Did the Board err in
finding that state protection was available to the Applicant, should he return to
Bangladesh?
Standard of
review
[16]
The first issue
concerns a question of fact. The second issue concerning the availability of
state protection is a question of mixed fact and law. The applicable standard
of review for both issues is reasonableness which concerns mostly the existence
of justification, transparency and intelligibility within the decision-making
process. The decision must also fall within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law. See: Dunsmuir
v. New Brunswick, 2008 SCC 9 at paragraph 47; and Hinzman v. Canada (MCI)
2007 FCA 171, at paragraph 38.
Analysis
Did
the Board err in its findings that the Applicant was not credible?
[17]
The Applicant submits
that the Board’s overall assessment of the claimant’s credibility was not
reasonable because the Member engaged in a microscopic examination of issues
peripheral to the claim and ignored evidence that supported the plausibility of
his account.
[18]
The Respondent
submits that the Board was entitled to decide adversely with respect to the
Applicant’s credibility on the basis of inconsistencies and contradictions in
the Applicant’s story. The Respondent argues that the Board’s credibility and
plausibility findings are reasonable. They were clearly made and the Board provided
detailed reasons for its findings.
[19]
I summarize below the
Board’s reasons for impugning the Applicant’s credibility:
(a) The Applicant testified
that he tried to live in other two towns of Bhola and Noakhali after the
incident of February 21, 2008, and he felt he was followed by his persecutors
even in these towns while he was walking to the market. In his Personal
Information Form (PIF), the Applicant had indicated that he was in hiding and
did not leave the house. When asked why he did not mention the market incident
in his Personal Information Form, he initially said it was a mistake. He then
explained that he was trying to say in his PIF that he was in hiding and could
not go to the office. He further explained that the word “hiding” in Bengali
can mean “outside the home”. The Board did not find the answers credible.
(b) When asked why he felt
he was being followed by the Shibir group (the youth wing of the BNP), he
explained that he could recognize them from their beards and caps, but that they
did not talk to him “because he was on their list and there was fear for his
life.” The Board found that explanation vague.
(c) The Applicant alleged he
was attacked on December 27, 2007 and on February 21, 2008, by the members of
the opposite political party because he believed he was the main target of
these members for compiling a list against them. The Board noted that a list of
600 individuals accused of war crimes had been published by “Bangladesh
Muktijudda Sangsad”. There was no evidence in the country documentation that
such a list was compiled by the AL.
(d) When asked to produce
newspaper articles in support of his alleged attacks, he stated that he was
unable to obtain them. He did not ask his party to obtain the media reports
because he did not wish to tell them he was in Canada
for fear of putting his family at risk. Yet, he asked his father to obtain a
letter form the Chairperson of AL for his region in support of his claim. When
asked why this would not put him at risk, the Applicant responded that he
simply told them he was abroad, not that he was in Canada. The Board found the response to be nonsensical.
(e) He then stated that he
had requested help from party members to obtain newspaper articles, and that they
did not have time to do so. Yet, he claimed to be a high profile member of the AL,
and as such should have been assured of their assistance to obtain the
documents notwithstanding their busy schedules. The Board found the Applicant’s
explanation unconvincing.
(f) After the December 27,
2007 incident, the Applicant stated that the Police came to see him at the
hospital and indicated they would investigate. The Applicant never followed up
with the Police, explaining that his father had filed the report and he didn’t
know the people who attacked him.
(g) The Board questioned the
authenticity of the police report filed by his father after the first attack
and the letter in support of his association with the AL
from the chairman of the AL by reason of the similar language used in both
documents and on the basis of documentary evidence that fraudulent documents
are easily obtained in Bangladesh.
[20]
The Applicant argues
that the Board erred in making its plausibility and credibility findings. He
contends that his credibility and plausibility of his testimony should have been
assessed in the contest of his country’s conditions and other documentary
evidence available. It is argued that the Board engaged in a microscopic
examination of issues peripheral to the claim and ignored evidence that
supported the plausibility of his story. In particular, the Applicant argues
that he never stated that he was high profile member of the AL;
he stated that he was with the youth wing and had a high profile within his
neighbourhood. Yet, he claimed to be “the main target” of his alleged
persecutors for compiling a list against them on behalf of the AL.
This claim by the Applicant is inconsistent with his allegation of not having a
high profile within the AL. In my view the Board’s finding that the
Applicant had a high profile within the AL is plausible and supported in the
evidence. The evidence supports the Board’s finding.
[21]
The Applicant also
challenges the Board’s finding that there is no documentary evidence that the AL
compiled a list of war criminals. He points to the 2009 UK Home Office Report,
which shows that such lists were being compiled in Bangladesh and that the AL had committed to bringing war criminals
to justice. The report deals with a manifesto issued by the AL for the December
2008 general elections, wherein the AL committed bringing war criminals to
justice. There is also mention of a subsequent resolution adopted by Parliament
requesting the new government to take immediate action to bring war criminals
to trial. The report does not mention anything about members or groups within
the AL preparing a list of war criminals.
[22]
I find that the Board’s
plausibility and credibility findings central to the Applicant’s claim for
refugee protection, as they relate to the alleged attacks, the circumstances after
the alleged attacks, and his request for state protection. The Board
acknowledges that certain inconsistencies in the Applicant’s evidence were
minor, but based its credibility finding on the totality of the evidence. Upon
considering the records before the Court and the submissions of the parties, I am
satisfied that the Board’s credibility and plausibility findings do not result
from a microscopic examination of issues that are peripheral to the claim. It
was open to the Board to conclude on the totality of the evidence that the
Applicant is not credible on the basis of inconsistencies and implausibilities
in his evidence. I am satisfied that the inferences drawn by the Board are
reasonable and that the reasons for its findings are set out in clear and
unmistakable terms.
Did
the Board err in finding that state protection was available to the Applicant,
should he return to Bangladesh?
[23]
The Board found that
the Applicant’s fear of persecution from the opposing political party members
is not based on objective and trustworthy evidence. Consequently, my above
determination concerning the Board’s credibility findings is determinative of
this application. I will nevertheless address the second issue raised.
[24]
The Applicant argues
that the Board failed to undertake a proper analysis of the situation in Bangladesh and that the Member ignored clear and convincing evidence
that rebutted the presumption of state protection.
[25]
The applicable
principles relating to state protection are the following:
(a) The test as to whether a state is
unable to protect a national is bipartite: (1) the claimant must subjectively
fear persecution; and (2) this fear must be well-founded in an objective sense.
The claimant need not literally approach the state unless it is objectively
unreasonable for him or her not to have sought the protection of the home
authorities; Canada (AG) v. Ward [1993] 2 S.C.R. 689, at p. 691
(b) The claimant must provide clear and
convincing confirmation of a state’s inability to protect absent an admission
by the national’s state of its inability to protect that national. Except in
situations of complete breakdown of the state apparatus, it should be assumed
that the state is capable of protecting a claimant; Canada (AG) v. Ward [1993]
2 S.C.R. 689, at p. 692
(c) A claimant who alleges that the
state offers ineffective or inadequate protection bears an evidentiary and
legal onus to convince the tribunal; Carrillo v. Canada (MCI) 2008 FCA
94 at para 18
(d) In order to determine whether a refugee
protection claimant has discharged his burden of proof, the Board must
undertake a proper analysis of the situation in the country and the particular
reasons why the protection claimant submits that he is “unable or, because of
that risk, unwilling to avail [himself] of the protection” of his country of
nationality or habitual residence; Avila v. Canada (MCI) 2006 FC 359, at
para 27
(e) No state which professes democratic
values or asserts its respect for human rights can guarantee the protection of
each of its nationals at all times. Therefore, it will not suffice for the
applicant to show that his government was not always able to protect persons in
his position (Villafranca,
supra, at
paragraph 7).
Nonetheless, though government protection does not have to be perfect, some
protection must exist at the minimum level which does not have to be determined
by the Court. The Board may in the circumstances determined that the protection
provided by the state is adequate, with references to standards defined in
international instruments, and what the citizens of a democratic country may
legitimately expect in such cases.[…] Each case is sui generis. Avila v. Canada
(MCI) 2006 FC 359, at
para 28
[26]
Here, the Board found
that state protection would be reasonably forthcoming should the Applicant
return to Bangladesh. The Applicant argues that the Board
ignored clear and convincing evidence that rebutted the presumption of state
protection. I disagree. In its reasons, at paragraphs 23 and 24, the Board specifically
addressed the Applicant’s evidence and accepted that “under recent governments”
the police were ineffective and reluctant to investigate persons affiliated with
the ruling party. It also found, based on the documentary evidence that Bangladesh is a functioning democracy and the government took steps to
address police corruption in order to create a more responsive police force. The
Board acknowledged that state protection is not perfect, “not available at all
times”, but found that this did not negate that there are measures put in place
the government to address the issues of corruption and discipline within the
police force. The Board further found that the current police laws gave broad
powers to the government which the current government, has used over police
force to intimidate opposition and line pockets of its own party members. Since
the Applicant’s party currently forms the government, the Board concluded that
state protection would be forthcoming in the circumstances.
[27]
I am satisfied that
the Board’s finding on state protection is reasonable. Its reasons, when read
as a whole, take into account the unique characteristics of power of the state
and particular circumstances of the Applicant and the alleged persecutor in
relation to the capability and willingness of the state to protect on a forward
looking basis. I am satisfied that the Board had regard to the evidence before it,
including the documentation on country conditions, in coming to its decision. The
decision is justified, transparent and intelligible within the decision-making
process. It falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.
Conclusion
[28]
For the above
reasons, the application for judicial review of the Board’s July 16, 2010 decision,
wherein the Applicant was found not to be a Convention Refugee or a person in
need of protection, will be dismissed.
[29]
The parties have had
the opportunity to raise a serious question of general importance as
contemplated by paragraph 74(d) of the Immigration and Refugee Protection
Act, S.C. 2001, c 27, and have not done so. I am satisfied that no serious
question of general importance arises on this record. I do not propose to
certify a question.
ORDER
THIS
COURT ORDERS that:
1. The application
for judicial review of the Board’s July 16, 2010 decision, wherein the
Applicant was found not to be a Convention Refugee or a person in need of
protection, is dismissed.
2. No serious
question of general importance is certified.
“Edmond P. Blanchard”
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