Date: 20070703
Docket: IMM-4634-06
Citation: 2007
FC 689
Ottawa, Ontario, July 3, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
KBM ABDUR RAHMAN, NASRIN RAHMAN,
NOURIN RAHMAN, REDUANUR RAHMAN
and RAIHANUR RAHMAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] K.B.M.
Abdur Rahman (the Principal Applicant), his wife Nasrin Rahman and their three
minor children Reduanur, Raihanur and Nourin seek refugee protection in Canada
based on the Principal Applicant’s alleged fear of persecution by reason of his
political opinion, as an organizer of the Bangladesh Nationalist Party (BNP).
All of the Applicants, except for Nourin who is a citizen of the United States, are citizens of Bangladesh. In a decision dated August
7, 2006, a panel of the Refugee Protection Division of the Immigration and
Refugee Board (the Board) determined that the Applicants were not Convention
refugees or persons in need of protection pursuant to sections 96 and 97 of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
The Board concluded that the Applicants were not credible.
[2] The
Applicants ask this Court to overturn the Board’s decision. They submit that
the Board erred:
- by failing to consider
whether “compelling reasons”, as contemplated by s. 108(4) of the IRPA,
apply; and
- by failing to have regard
to the evidence.
[3] As I
can see no error in the Board’s decision, I will dismiss this application for
judicial review.
[4] At
the commencement of the oral hearing of this application, counsel for the
Applicants indicated that he was not prepared to proceed with oral arguments.
With the agreement of counsel for both parties, this Court ordered that the
matter be dealt with on the basis of written submissions. Although the
Applicants were afforded the opportunity to make further written submissions,
no further submissions were made. Accordingly, this matter was decided on the
basis of the written representations made by the parties.
[5] With respect to the alleged
failure of the Board to consider “compelling reasons”, the Applicants have
misunderstood the statutory scheme embodied in s. 108 of IRPA. In Canada (Minister of Employment and Immigration)
v. Obstoj,
[1992] 2 F.C. 739 (F.C.A.), 93 D.L.R. (4th) 144, the Federal Court
of Appeal dealt with subsections 2(2) and 2(3) of the old Immigration Act
(now section 108 of IRPA). The Federal Court of Appeal stated the
following with regards to the application of subsections 2(2) and 2(3) at para.
5:
By its terms this provision
can only apply to a person “who was determined…to be a Convention refugee”,
that is to say after there has been an initial recognition of refugee status by
the Refugee Division; it logically cannot come into play at the credible basis
hearing which necessarily must be prior to any such recognition.
[6] Simply
stated, s. 108(4) can only apply where there has been a determination
that, but for changed country conditions, the claimants would have been found
to be persons in need of protection. Since, in this case, the Board did not
believe the Applicants’ claims of past persecution in Bangladesh, s. 108(4) cannot apply.
[7] The
second alleged error is with respect to the credibility finding. This finding
is reviewable on a standard of patent unreasonableness, meaning that it can
only be overturned where the Board has made its findings perversely and
capriciously or without regard to the evidence.
[8] In my view, there is no
reviewable error.
It is clear from the decision that the Board did not accept the Applicants’
evidence that they were at risk in Bangladesh from internecine strife within
the BNP for the cogent reason that, when asked, the Principal Applicant and his
wife failed to identify this as a threat they faced in Bangladesh. On the evidence before it, the finding
of lack of credibility is supported by the evidence.
[9] There is one error apparent on
the face of the decision. In its decision, the Board found that the letter from
the president of the Fulgazi Feni BNP Committee was dated June 10, 2006. A
review of the hearing transcript shows that the Board accepted, at the
beginning of the hearing, that the letter was dated April 10, 2006. However,
this is not a material error, given that the Board did not accept the Principal
Applicant’s and his wife’s evidence that they feared the BNP.
[10] For these reasons, the
application for judicial review will be dismissed.
ORDER
THIS COURT ORDERS that:
1. The
application is dismissed; and
2. No question of general importance
is certified.
“Judith A. Snider”
_____________________________
Judge
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