Date: 20131203
Docket:
IMM-9657-12
Citation: 2013 FC 1206
Ottawa, Ontario, December 3, 2013
PRESENT: The Honourable Mr. Justice Mosley
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BETWEEN:
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ABDUL WADUD BABUL
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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]
Abdul Wadud Babul, a citizen of Bangladesh, seeks judicial review of a decision by the Refugee Protection Division of the
Immigration and Refugee Board denying his claim that he is a Convention refugee
or a person in need of protection. The application is
brought pursuant to section 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
[2]
For the reasons that follow, the application is
dismissed.
BACKGROUND:
[3]
Mr. Babul lived and worked in the United States between November 1985 and January 2004. While in the US he visited his home country several times. During one of the trips he got married. Following
his return to Bangladesh in 2004, he was pressured to support the Jamaat-ul-Mujahideen Bangladesh party (the JMB) and the Awami
League. This pressure was accompanied by threats of physical harm, and demands
for money, which he provided on several occasions. Mr.
Babul was a long-time supporter of the Bangladesh Nationalist Party (BNP). The
BNP were in power at that time and in 2005 the JMB were proscribed. A number of JMB leaders were detained, but the local members
increased their militancy throughout the country.
[4]
JMB and Awami League members continued to harass
Mr Babul, extorting money and threatening to harm his family if he did not pay.
He left Bangladesh in March 2006 for Guam, enroute to the continental United States. Mr Babul claimed asylum upon arrival at the airport in Guam, but was
detained by the authorities when it was determined that he had used fraudulent
travel documents. Mr Babul was detained in a jail for six months, and at an
immigration detention centre for three months thereafter, pending deportation.
[5]
Mr Babul claims that he was tortured mentally
and physically while detained in Guam. As a result, he says, he withdrew his
asylum claim. He was asked by a US Immigration Officer if he had been
threatened while in detention and to explain why he wanted to go home if he
faced persecution there. Mr Babul says that he denied being threatened for fear
of being tortured again, or being sent to the Guantanamo Bay detention camp.
He told the Officer that he would rather accept death and go home than remain
detained.
[6]
Mr Babul returned to Bangladesh on December 15,
2006. In January 2007, a state of emergency was declared in Bangladesh. Mr Babul became involved with an organization established to fight corruption, the
Durniti Protirodh Anddolan (the Anti-Corruption Movement, or ACM). In May 2007 Mr
Babul received a threat that his family would be harmed if he did not cease his
work with the ACM. He filed a complaint the same day with the police and
continued his political work, becoming one of 301 members of the Election
Committee in Sylhet on behalf of the BNP.
[7]
In November 2008, Mr Babul was asked to join the
Awami League in preparation for the forthcoming elections. He refused. An Awami
League-led alliance won the general elections of December 29, 2008. On February
10, 2009, members of the Awami League went to Mr Babul’s house and demanded a
donation. He was told he must raise the amount demanded by February 20, 2009. Mr
Babul reported the incident to the police but was accused of lying. He went
into hiding. His home was ransacked on February 20, 2009. Following further
threats from members of the JMB and a police search for him he left Bangladesh in May 2009. He entered Canada on a false American passport, destroyed the
passport and filed an inland refugee claim about a week later.
DECISION UNDER
REVIEW:
[8]
The determinative issues for the Panel were the
applicant’s credibility and the availability of an Internal Flight Alternative (IFA) to Dhaka. The Panel noted that the
applicant had never made an asylum claim during the 18 years he had lived in
the United States prior to his return to Bangladesh in 2004. The Panel found that
it was not credible that the applicant would then remain in Bangladesh for two years before leaving for Guam, and then agree to return to Bangladesh from Guam in December 2006, if he feared for his life. It did not believe his claim of
torture at the hands of the US authorities in Guam. In reviewing the record of the interview, the Panel found that the applicant
was concerned about being released from detention and that if this could not
happen, then he would return to Bangladesh.
[9]
The Panel found that the applicant had failed to
provide credible and trustworthy evidence authenticating his long political
involvement with the BNP or that, as a consequence of this involvement, his
life would be at risk. In particular, the Panel found that documents submitted
to establish his membership in the party did not describe his role or history
with the BNP or activities prior to the 2008 election. The Panel held that the
documents contained insufficient information to be satisfied of his involvement
with the BNP. The Panel also found that an amendment to the applicant’s
Personal Information Form (PIF) with regard to a beating and medical attention
the applicant had sought on December 25, 2008, was included as an afterthought in
order to establish that the applicant’s life is and was at risk.
[10]
The Panel stated that while it did not believe
the applicant’s claims, it believed that a viable IFA in Dhaka existed. The
Panel held that there was little credible evidence that the applicant’s
membership within the BNP resulted in him being sought by the current political
party, government or police in Dhaka and throughout Bangladesh. Moreover, the
Panel found that there was insufficient evidence to conclude that the applicant
was a member of BNP at present, or would become involved with the BNP to such
an extent that it would put his life at risk, were he to return to Bangladesh, due to the political violence there.
[11]
The Panel held that there was no credible reason
why the applicant could not relocate to Dhaka given that it was a very large
city and far from where he had previously resided. Furthermore, the applicant
had not established how he would be found in Dhaka, nor why he could not seek
protection from the police since police protection had previously been sought
in April 2009.
ISSUES:
[12]
The questions raised in these proceedings can be
condensed into the following issues:
- Was it
reasonable for the Panel to conclude that the applicant was not credible?
- Did the Panel
breach the duty of procedural fairness in its treatment of the applicant’s
decision to return to Bangladesh in 2006?
- Was it
reasonable for the Panel to conclude that there was a viable IFA available
to the applicant?
[13]
The standard of review for the first and third issues
is reasonableness. The second attracts review on the standard of correctness: Yildiz v Canada (Minister of Citizenship and Immigration), 2013 FC 839 at paras 42-45, [2013] FCJ no 905; Soto v Canada (Minister of Citizenship and Immigration), 2011 FC 360 at para 19, [2011] FCJ no
446.
ANALYSIS:
Was it reasonable for the Panel to conclude that the Applicant was
not credible?
[14]
The applicant’s problems with opposing political
parties apparently began before he left for the United States in 1985. Mr.
Babul did not seek asylum during this period and returned to his home country
several times prior to returning there in January 2004. He says he realized his
life was at risk as early as March 2004 but remained in Bangladesh for two years before leaving for Guam. The Panel’s finding that this was inconsistent
with a subjective fear of persecution was open to it on
the evidence.
[15]
It was also open to the Panel not to believe the
applicant’s claim of having been tortured while detained in Guam. This claim
was not reported to the American authorities when the applicant was interviewed
prior to being removed. While his explanation for not doing so was plausible, it
is clear that he chose to withdraw his asylum application rather than continue
to be detained pending assessment of his claim by the US where the abuse could have been raised.
[16]
The Panel conducted a thorough review of
the evidence adduced by the applicant prior to making its negative credibility
ruling with respect to his claim of active involvement with the BNP. Specifically,
the Panel found that the documents submitted by the applicant lacked “independent,
credible and trustworthy information” to support that the applicant “is who he
says he is” within the BNP. Further, it noted that none of the documents
specify what the applicant was allegedly accused of or establish that he had a
profile in the BNP that would attract hostility from its opponents. Thus, the
Panel did not ignore this documentary evidence. Rather, it accorded it low
probative value after a close examination at the hearing, an assessment which
was within its discretion.
[17]
The Panel considered the corroborating evidence
provided by the applicant to establish his claim before concluding that this
evidence as a whole inspired little confidence in the claim. It was not
necessary for the Panel to explicitly review each item of this evidence in its
reasons: Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16. The Panel explicitly considered the
evidence relevant to its determination as to the applicant’s credibility, and,
based on this evidence, reasonably concluded that the applicant’s claim that
his life was in danger as a result of his involvement with the BNP was not
credible.
Did the Panel breach the duty of procedural fairness in its
treatment of the applicant’s decision to return to Bangladesh in 2006?
[18]
The applicant submits that during the hearing,
the Panel repeatedly stated that the applicant’s reasons for withdrawing his
claim for asylum and returning to Bangladesh from Guam in 2006 were irrelevant
to his claim and instructed his counsel at that time to focus her questions on
his fear of returning to Bangladesh and not on what had transpired in Guam.
[19]
The hearing of the claim took place over several
days. It is clear from the transcript that as the hearing progressed towards
its conclusion, the Panel wanted to move on from the discussion of what had
taken place in Guam, as that was already in the record, and to focus on the
claim against Bangladesh. While the events in Guam were relevant to the
question of why the applicant had withdrawn his asylum request and returned
home in 2006, they did not go to the heart of the claim. The Panel evidently considered
that the Guam events had been sufficiently covered and thought that counsel was
being repetitive in going over the same ground. Having read the relevant
portions of the transcript, I can understand how the Panel may have reached
that conclusion.
[20]
It is problematic that the Panel was initially
prepared to accept the statements the applicant had made during the interview
with U.S. Immigration authorities without putting them to the applicant to
allow him to explain himself. However, the Panel accepted counsel’s argument that
she should be allowed to address this subject and both he and counsel asked the
applicant to explain why he withdrew his claim in Guam. In both instances, the
applicant explained that it was due to the abuse to which he had been subjected
in the jail following his initial detention.
[21]
The applicant’s counsel had the opportunity at
the hearing to ask her client to explain the answers he had given to the US
Immigration official during the interview. She did ask him why he did not tell
the immigration officer that he had been tortured but then chose to focus on
what had allegedly gone on at the detention centre and whether the applicant
had access to a lawyer. If there was some additional evidence that the
applicant could have provided as to his reasons for withdrawing the claim, his
counsel failed to elicit it over what was a protracted hearing.
[22]
It is clear that the Panel understood the
applicant’s explanation for withdrawing his US claim. He simply did not believe
that the applicant would leave US territory if he feared being killed in Bangladesh.
[23]
While the Panel could have demonstrated greater
patience in conducting the hearing, no breach of procedural fairness took
place.
Was it reasonable for the Panel to conclude that there was a viable
IFA available to the applicant?
[24]
In determining whether a viable and safe IFA
exists for the claimant, the Panel must be satisfied on a balance of
probabilities that there is no serious possibility of the claimant being
persecuted in the proposed IFA and that conditions there are such that it would
not be unreasonable, upon consideration of all of the circumstances, including
the claimant’s personal circumstances, for the claimant to seek refuge there: Hernandez v Canada (Minister of Citizenship and Immigration), 2011 FC 703 at paras 36-38.
[25]
The applicant bears the burden of proof to
demonstrate that an IFA does not exist or is unreasonable: Saldana v Canada (Minister of Citizenship and Immigration), 2008 FC 1092 at paragraph 22.
[26]
In this instance, the Panel asked the applicant
why he could not move to Dhaka, a city of over 10 million people, use the
health and education and other services and seek assistance of the authorities
there if necessary. The applicant’s sole ground for not accepting the proposed
IFA was that as a result of his political activities he was on an Awami League
hit list that prevailed all over the country. As noted above, the Panel did not
accept that the applicant had the political profile that he claimed to have as
a member of the BNP and as one of 300 members of an anti-corruption
organization in Sylhet, a town located some 400 kilometres from Dhaka.
[27]
On the basis of the applicant’s own testimony,
the Panel’s decision that a viable IFA existed was reasonable.
[28]
Overall, the decision was transparent,
intelligible and justified, and falls within the range of acceptable outcomes
based on the facts and the law.
[29]
No serious questions of general importance were
proposed and none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application is dismissed. No questions are certified.
“Richard G. Mosley”
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