Date: 20070201
Docket: IMM-7633-05
Citation: 2007 FC 115
Ottawa, Ontario, February 1,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
AKM SHAMSUDDIN KHAN
(a.k.a. Abul Kalam Moha Khan)
REBA KHAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review of a decision of the Immigration and Refugee Board (IRB)
involves a review of a credibility finding. While such findings are entitled to
considerable deference, this is one of those rare occasions where judicial
review must be granted in respect of a credibility finding. This case turns
entirely on its facts.
II. BACKGROUND
[2]
The
Applicants are citizens of Bangladesh who sought refugee
status. The principal Applicant (Applicant) claimed fear of persecution from
the Bangladesh National Party (BNP) because of his membership in another
political party, the Awami League.
[3]
The
Applicant claimed that between 1989 and 2004 he was the managing director of
Hydroland Survey Ltd. By 2003, the other directors of the company (members of
the BNP) wanted the Applicant removed from office and allegedly engaged in a
series of actions to accomplish this, including alleging misconduct against him
and using their political influence and “goons” to threaten and harass him.
(This is a very brief synopsis of a very confusing record.)
[4]
The
IRB Member had considerable difficulty with the Applicant’s story including his
explanation for not seeking refugee status in the U.S., the absence
of documentary evidence concerning both his corporate position and the
allegation of misconduct made against him and ultimately his failure to seek
any legal redress. In view of the disposition of this case, the Court will make
no further comment on this evidence.
[5]
The
IRB disbelieved the Applicant’s evidence and in any event found that there was
an IFA in Chittagong, a city
several hundred miles from Dhaka with a population of over 21 million. The
Applicant’s explanation for not seeking an IFA, that he was earning good money
and had a good life-style, is certainly inconsistent with a fear of
persecution.
[6]
The
area of the Board’s decision which is clearly troublesome is its treatment of a
letter from a local counsel submitted to show that the Applicant was at risk
due to politically motivated actions by the police.
[7]
The
letter reported that the Applicant was being sought by police. The Board said
that the lawyer speculated, because he could not determine the reasons for an
arrest, that the Applicant was wanted for political reasons. The Board did not
believe that the lawyer could not find out the reasons for arrest and found
that the Applicant had no political profile which would support being wanted by
the authorities. From this the Board concluded that the evidence was
manufactured to embellish the claim.
III. ANALYSIS
[8]
The
standard of review of credibility findings is accepted as “patent
unreasonableness”. (Horvath v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 583) It is for this reason that
the Court is reluctant to overturn this decision.
[9]
However,
the Board mischaracterized the contents of the lawyer’s letter and from this
draws a conclusion for which there is no reasonable support.
[10]
The
lawyer’s letter specifically states what the reasons are for an arrest – that
the Applicant is wanted under the “Special Act”; a process somewhat
similar to Canada’s security
warrants. There is nothing speculative about this information.
[11]
The
Board does not challenge the lawyer’s opinion that the Special Act is often
used to suppress political views. The Board simply says that to do so does not
make sense because the Applicant was not particularly political. The conclusion
ignores the Applicant’s allegation that the other directors were using
political connections to “get” to the Applicant.
[12]
The
issue is not whether it makes sense that the authorities would want to arrest
the Applicant in these circumstances but whether they were attempting to do so.
The Board gives no reason for not believing the lawyer’s letter other than the
mischaracterization that the lawyer had not found out the reason for the
possible arrest. There is no rational support for the Board’s conclusion.
[13]
The
Respondent is correct in arguing that even if the Applicant’s basic story is
credible, the existence of a viable IFA ends the matter. However troubling the
Applicant’s explanation for not seeking an IFA is, the fact that the Applicant
was subject to a Special Act arrest and whether such a process may be
accomplished anywhere in the country was never considered in the IFA analysis.
[14]
The
Board’s treatment of the lawyer’s letter adversely impacts its IFA finding as
well.
IV. CONCLUSION
[15]
For
these reasons, the judicial review will be granted, the Board’s decision
quashed and the matter remitted to a differently constituted panel for a new
determination.
[16]
There
is no question for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is granted, the Board’s decision is quashed and
the matter is remitted to a differently constituted panel for a new
determination.
“Michael
L. Phelan”
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