Date: 20030917
Docket: IMM-5685-02
Citation: 2003 FC 1076
Ottawa, Ontario, September 17, 2003
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MOSTAFA KHAN
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (the "Act") of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") dated November 19, 2002, wherein the Board determined that the applicant was not a Convention refugee, and not a person in need of protection.
[2] The applicant is a 34-year-old citizen of Bangladesh, who claims a well-founded fear of persecution by reason of his political opinion. He alleges that he has been beaten and tortured by the police and by persons associated with the Bangladesh National Party (BNP) because of his social and political activities on behalf of the Jatiya Party.
[3] The applicant arrived in Canada on November 15, 1995, and claimed refugee status upon arrival. A hearing was held on January 28, 1999, and a negative decision was rendered on March 5, 1999. However, on February 1, 2000, the Federal Court reversed that decision, and sent his claim back for redetermination by a differently constituted panel.
[4] On November 1, 2002, a new hearing was held. After the hearing, the Board delivered its decision orally, in which it held that the applicant was not a Convention refugee and not a person in need of protection.
[5] The Board did not believe the applicant's allegation that the police, members of the BNP, and Muslim fundamentalists had been looking for him at his home in Bangladesh in July 2002. The Board identified the following factors that made this allegation implausible: no charges were pending against the applicant, the applicant had been out of the country for a period of six years, the BNP and the Muslim fundamentalists knew that the applicant was no longer living in his village, and the applicant was not on the list of suspects. According to the Board, it did not make sense that the authorities would search for the applicant at his home if they knew he wasn't there. On the other hand, if the authorities truly believed that the applicant was responsible for the murder, it is inconceivable that his name would not appear on the list of suspects.
[6] The Board was also of the opinion that the applicant was no longer in danger because the political landscape in Bangladesh had changed considerably. The applicant was involved in politics a long time ago at a low level, in a rural area, and the Jatiya was no longer a real threat to the BNP since there were not many Jatiya MPs in parliament.
[7] It is well established that the Board is entitled to decide adversely with respect to an applicant's credibility based on contradictions and inconsistencies in an applicant's story, or based on evidence that is implausible. Where such findings are clearly made and reasons are given, this Court should not interfere, even if the evidence could conceivably lead to a difference conclusion (Aguebor v. Canada (Minister of Employment and Immigration) 160 N.R. 513 (F.C.A.)).
[8] In Atwal v. Canada (Secretary of State) (1994), 82 F.T.R. 73, Gibson J. articulated at para. 10:
It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. The fact that a Tribunal fails to do so does not, in ordinary circumstances give rise to a conclusion that the Tribunal has failed to take into account all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal's decision.
[9] As pointed out by Evans J. in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, the burden of explanation increases with the relevance of the evidence in question. He stated at para. 17:
[...] the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": [...] In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. [...]
[10] In the case at bar, the Board's adverse credibility finding was based on the fact that it did not believe the applicant's allegation that the authorities had searched for him at his home in Bangladesh in July 2002. However, in making this finding, the Board failed to comment on the applicant's documentary evidence, more particularly Exhibit "C", a letter from the applicant's lawyer, which corroborated the applicant's allegation that the authorities had searched for him at his home in Bangladesh in July 2002. If the Board chose to disregard this evidence (for example because it believed the letter was self-serving) then reasons should have been provided in its decision. In my opinion, the Board's failure to discuss this evidence in its decision amounts to a reviewable error.
[11] For these reasons, this application for judicial review is allowed. The Board's decision is set aside and the matter is sent back for redetermination by a differently constituted panel.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed. The Board's decision is set aside and the matter is sent back for redetermination by a differently constituted panel.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5685-02
STYLE OF CAUSE: MOSTAFA KHAN
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 15, 2003
REASONS FOR ORDER
AND ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
APPEARANCES:
Mr. Rezaur Rahman FOR APPLICANT
Mr. Alexander M. Gay FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Rezaur Rahman
Barrister and Solicitor
1882 Hennessy Crescent
Ottawa, Ontario
K4A 3X8 FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT