Docket: IMM-10674-23
Citation: 2025 FC 330
Ottawa, Ontario, February 19, 2025
PRESENT: The Honourable Mr. Justice Fothergill
BETWEEN: |
MD REZAUL HOSSAIN MARIYA HOSSAIN WARISHA |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] MD Rezaul Hossain and his daughter Mariyah Hossain Warisha [Applicants] are citizens of Bangladesh. They seek judicial review of a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board [IRB]. The RAD confirmed the determination of the Refugee Protection Division [RPD] of the IRB that the Applicants are neither Convention refugees nor persons in need of protection.
[2] For the reasons that follow, the RAD’s decision was procedurally fair and reasonable. The application for judicial review is dismissed.
II. Background
[3] The Applicants’ refugee claims were based on the following contentions. While building an orphanage in Dhaka in 2019, Mr. Hossain was targeted and extorted by Mr. Gazi, a senior member of Bangladesh’s ruling political party, the Awami League [AL]. Mr. Gazi and his associates demanded monthly payments in exchange for permission to proceed with the construction, and threatened to destroy the orphanage should Mr. Hossain fail to pay. Mr. Hossain reluctantly made the monthly payments.
[4] In June 2020, once the building was nearly completed, Mr. Gazi demanded a larger amount of money. Mr. Hossain refused. On June 25, 2020, roughly a dozen AL members entered the orphanage and assaulted Mr. Hossain, causing him to hospitalized overnight. Mr. Hossain contacted the police and mayor, but they did not provide any assistance.
[5] In August 2020, AL members visited Mr. Hossain’s home and requested more money. Mr. Hossain made partial payment, but then fled with his family to a friend’s home in Khagrachhari on September 16, 2020.
[6] On October 25, 2020, AL members kidnapped Mr. Hossain and his family from his friend’s house and drove them to an unknown location. They assaulted Mr. Hossain and threatened to molest his wife. Mr. Hossain persuaded one of the men to release them by giving him money and his wife’s jewellery. The family fled to another friend’s house in Meherpur, and Mr. Hossain went to the hospital for treatment of his injuries.
[7] On October 28, 2020, Mr. Hossain learned that AL members had occupied his home and harassed his friends and family in an attempt to locate him. On January 16, 2021, the friend who was hosting the family in Meherpur received a call from a member of the AL asking about Mr. Hossain’s whereabouts.
[8] Mr. Hossain subsequently hired an immigration consultant to obtain visas for himself and his daughter to travel to Canada. The Applicants arrived in Canada in March 2021 and claimed refugee protection in May 2021.
[9] On November 16, 2022, Mr. Hossain’s parents were attacked by AL members, and his mother went to the hospital the following day for treatment.
III. The RPD’s Decision
[10] The RPD found that the Applicants were neither Convention refugees nor persons in need of protection. The determinative issue was credibility. In concluding that Mr. Hossain was not a credible witness, the RPD considered that:
(a)some of the language in two police reports [General Diaries] was virtually identical, and there were inconsistencies in the dates upon which Mr. Hossain claimed to have met Mr. Gazi;
(b)Mr. Hossain misstated the date of an attack he experienced;
(c)the temporary resident permit application contained documents notarized in Dhaka at a time when Mr. Hossain said he was living in hiding elsewhere;
(d)Mr. Hossain’s wife’s letter permitting him to travel with their daughter was notarized in Dhaka at a time he indicated she was in hiding elsewhere;
(e)medical documents regarding injuries suffered by Mr. Hossain’s mother indicated a date that differed from the one on which she was allegedly injured, casting doubt on whether she had truly been attacked by the AL; and
(f)other supporting documentation was insufficient to overcome the RPD’s credibility concerns, given Mr. Hossain’s “inconsistent and evolving”
testimony.
IV. Decision Under Review
[11] On appeal to the RAD, Mr. Hossain submitted new evidence. Most of this was rejected on the basis that it was either irrelevant or could have been provided to the RPD. The RAD accepted a doctor’s note issued after the RPD’s decision confirming Mr. Hossain’s complaints that he was feeling anxious, depressed, forgetful, and had poor concentration.
[12] The RAD upheld the RPD’s findings. The RAD’s decision also included two additional adverse credibility findings:
(a)Mr. Hossain failed to disclose a previous visa application refusal in his refugee protection application; and
(b)Mr. Hossain provided inconsistent information about when he decided to come to Canada.
III. Issues
[13] This application for judicial review raises the following issues:
Was the RAD’s decision procedurally fair?
Was the RAD’s decision reasonable?
V. Analysis
[14] The RAD’s decision is subject to review by this Court against the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 10). The Court will intervene only where “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov at para 100).
[15] The criteria of “justification, intelligibility and transparency”
are met if the reasons allow the Court to understand why the decision was made, and determine whether the decision falls within the range of acceptable outcomes defensible in respect of the facts and law (Vavilov at paras 85-86, citing Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[16] Procedural fairness is subject to a reviewing exercise best reflected in the correctness standard, although strictly speaking no standard of review is being applied (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54). The ultimate question is whether an applicant had a full and fair chance to be heard (Siffort v Canada (Citizenship and Immigration), 2020 FC 351 at para 18).
A. Was the RAD’s decision procedurally fair?
[17] Mr. Hossain says that the RAD breached his right to procedural fairness by basing its decision on adverse credibility findings that were distinct from those made by the RPD. He argues that these findings amounted to “new questions”
that required the RAD to provide notice and an opportunity to respond. Mr. Hossain relies on Justice Yvan Roy’s decision in Bouchra v Canada (Citizenship and Immigration), 2020 FC 1063, for the propositions that litigants before the RAD are owed a high degree of procedural fairness, and their “expectation is that their appeal will be considered for what it is: a challenge of the reasons supporting the decision”
.
[18] A “new question”
is a question that constitutes a new ground or reasoning on which a decision-maker relies, other than the grounds of appeal raised by the applicant, to support the valid or erroneous nature of the decision appealed from. Where a new question is raised, the RAD must give the applicant an opportunity to respond (Kwakwa v Canada (Citizenship and Immigration), 2016 FC 600 at para 25). However, the RAD does not raise a new issue when it simply references another piece of evidence in the tribunal’s file which supports the RPD’s findings regarding an applicant’s lack of credibility.
[19] This is not a situation where the decision maker considered extrinsic evidence without giving the Applicants an opportunity to respond. On the contrary, Mr. Hossain’s credibility was the crux of the RPD’s decision and the primary focus of the appeal (Sary v Canada (Citizenship and Immigration), 2016 FC 178 at para 31).
[20] Where an applicant’s credibility is a live issue on appeal, the RAD may support a negative credibility finding with facts in the RPD record without providing notice (Oluwaseyi Adeoye v Canada (Citizenship and Immigration), 2018 FC 246 at para 13; Savit v Canada (Citizenship and Immigration), 2023 FC 194 at para 17; Oluwatusin v Canada (Citizenship and Immigration), 2023 FC 378 at para 31).
[21] Furthermore, the RAD’s additional grounds for rejecting Mr. Hossain’s credibility only supplemented the other inconsistencies in Mr. Hossain’s testimony identified by the RPD, all of which were upheld by the RAD.
[22] The RAD’s decision was procedurally fair.
B.
Was the RAD’s decision reasonable?
[23] Mr. Hossain argues that the RAD’s decision was unreasonable in three respects.
[24] First, he says the RAD unreasonably rejected the authenticity of the General Diaries. Documents issued by a foreign authority are presumed to be valid (Manka v Canada (Citizenship and Immigration), 2007 FC 522 at para 8). However, this presumption can be displaced by good reasons, grounded in evidence, for concluding that what purports to be a foreign public document is not genuine and, therefore, that it should not be accepted as evidence of its contents (Liu v Canada (Citizenship and Immigration), 2020 FC 576 at para 86). The RAD reasonably explained its conclusion that the General Diaries could not be genuine (at paras 59-63):
[59] One example of the identical wording is found at the beginning of both documents which states: “I am a service holder, alongside I perform social works. I, my wife and my friend established this organization…The main purpose of this organization is to provide education and accommodation to the disadvantaged women and orphans. But the cadre force of…Gazi…are stopping the work of organization building.” Another example of the identical wording in both documents is found at the end of the document which states: “After this incident, we all are staying in anxiety. Anything worse may happen at any time. Please accepting the General Diary, will take proper action.”
[60] Since these police complaints were made eight months apart, and the Appellant testified that a police officer typed the contents of the report as the Appellant was dictating his story, it is not credible that the Appellant would be able to recall and use the exact same words in both complaints when he was telling his story.
[…]
[62] The Appellant testified that he was not aware that Mr. Gazi was involved when he was first being extorted for payments to continue construction of his orphanage. It was only after he went to the city chairman on November 17, 2019, to make a complaint, that he was advised that Mr. Gazi was involved. The Appellant’s BOC does not mention Mr. Gazi having any involvement until November 2019.
[63] Yet, the October 12, 2019 police complaint mentions Mr. Gazi and his involvement in the extortion. When the RPD asked the Appellant why his police complaint mentions Mr. Gazi, when he did not yet know he was involved until a month later, the Appellant initially said Mr. Gazi is not mentioned in the complaint. When the RPD pointed out that he is mentioned, the Appellant changed his answer […]
[25] Second, Mr. Hossain argues that the RAD improperly found that his mother’s injuries were not adequately corroborated by the documentation presented.
[26] The RAD may find that a medical report lacks the requisite detail to connect reported injuries to an applicant’s claim of assault (see, e.g., Avagyan v Canada (Citizenship and Immigration), 2014 FC 1004 at para 35). The RAD may also have credibility concerns where dates on reports are inconsistent with an applicant’s claims (Mamlouk v Canada (Citizenship and Immigration), 2023 FC 1097 at paras 40-43).
[27] The RAD noted the discrepancy between the alleged date of the AL’s attack and the date of the injuries recorded in the medical records. In light of the numerous other factual inconsistencies in Mr. Hossain’s narrative, the RAD reasonably found that the alleged attack on his mother was not substantiated.
[28] Third, Mr. Hossain claims that the RAD failed to consider the totality of the evidence. In particular, he takes issue with the RAD’s finding that the notarized documents he provided were insufficient to overcome credibility concerns, and that he provided “inconsistent and evolving”
testimony regarding why the documents were notarized together.
[29] The RAD found as follows (at paras 66-67):
The RPD questioned why all the affidavits were notarized by the same notary on the same day in Dhaka. During the first RPD hearing, the Appellant said that all the documents were sent to his friend Tazul, and he took them all to be notarized. The RPD questioned how the notary attested to the identity of the people swearing the affidavits if Tazul was the only person present. The Appellant had no explanation. During the second RPD hearing, the Appellant changed his answer and explained that he had his friend Tazul organize and gather all the documents, and Tazul is very busy, so everyone had to meet him in Dhaka at the same time to provide their documents and have them notarized. When asked, the Appellant could not explain why everyone had to meet Tazul in person to have their affidavit notarized in front of him instead of just sending him their own notarized affidavit. Especially considering that one of the affiants lived hundreds of kilometres away from Dhaka.
I make a negative credibility inference due to the Appellant’s inconsistent and evolving explanation for why all the documents were notarized together. Due to the inconsistency in how the documents were obtained, as well as the fact that fraudulent documents are prevalent and easily obtained in Bangladesh, the documents are not reliable. They are insufficient to establish the allegations in the claim.
[30] The RAD reasonably found that the documents raised credibility concerns and were inconsistent with Mr. Hossain’s narrative, particularly in light of his inconsistent and evolving testimony regarding their provenance.
[31] Mr. Hossain attempted to provide an affidavit from Tazul on appeal, but this was properly rejected by the RAD because it could have been submitted to the RPD (Immigration and Refugee Protection Act, SC 2001, c 27, s 110(4)). As the RAD observed, an appeal is not a second chance to submit evidence to address weaknesses identified by the RPD (citing Lemus Oliva v Canada (Citizenship and Immigration), 2022 FC 1429 at para 45; Eshetie v Canada (Citizenship and Immigration), 2019 FC 1036, at paras 33-34).
[32] The RAD’s decision was reasonable.
VI. Conclusion
[33] The application for judicial review is dismissed. None of the parties proposed that a question be certified for appeal.
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