Date: 20040408
Docket: IMM-6048-03
Citation: 2004 FC 549
BETWEEN:
Nezam Uddin SYED
(a.k.a. Syed Nezam UDDIN)
APPLICANT
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENT
BACKGROUND
[1] Nezam Uddin Syed (the "applicant"), a citizen of Bangladesh, in this judicial review application seeks to set aside the July 8, 2003 Pre-Removal Risk Assessment ("PRRA") decision of a PRRA officer (the PRRA officer or tribunal") who determined the applicant would not be subject to risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment if returned to his country of nationality.
[2] The applicant came to Canada in June 1996 and made a refugee claim which was rejected by the Refugee Division on September 9, 1999.
[3] The basis for his claim was that he had a well-founded fear of persecution in Bangladesh by reason of his membership and participation in the Bangladesh Nationalist Party ("BNP").
[4] In his PIF, he had described his participation in the activities of the BNP which brought him the retribution of the Awami League: attacks, attempts at extortion following his refusal to lend the Awami League his truck, complaint to the police resulting in the subsequent arrest and detention of two Awami League leaders. He wrote that during the elections in Bangladesh in June, 1996, he, along with other BNP supporters, were injured in a bomb attack in a polling station and, while he was in the hospital, his house was ransacked by Awami League goons and the police raided his family home looking to arrest him. This led to his flight to Canada.
[5] The Refugee Division found implausible some parts of his story particularly that the Awami League would approach a BNP supporter for the loan of trucks for a political rally.
[6] The Refugee Division did not believe the Awami League was still seeking him. The Refugee Division found he had no particular political profile during or before the 1996 election campaign.
[7] The applicant sought and obtained leave to appeal the Refugee Division's decision. However, by decision dated October 27, 2000, the Associate Chief Justice (now Chief Justice) dismissed his judicial review application.
THE APPLICANT'S GROUNDS FOR REVIEW
[8] Counsel for the applicant raised three grounds for review.
[9] First, he argued the PRRA officer failed to consider all of the evidence the applicant had submitted.
[10] The certified tribunal record at pages 202 and 241 shows the applicant, through legal counsel, made a first set of submissions on January 11 and May 8, 2000, under the PDRCC process which under the Immigration and Refugee Protection Act has been replaced by the PRRA process.
[11] The first set of materials essentially comprised of the documentation provided by the applicant to the Refugee Division supplemented by his affidavit and submissions why he would be at risk (certified tribunal record, page 502).
[12] The second set of documents were submitted to the Vancouver PRRA unit on November 14, 2002. That material consists of submissions by his counsel in which he makes reference to the earlier submissions made under the PDRCC process. Reference is then made to new materials which were enclosed consisting of:
(1) a report from legal counsel in Bangladesh;
(2) a letter from his father describing the difficulties the family is facing at the hands of the Kader Brigade because the leader of that brigade is now in jail;
(3) an affidavit by the manger of the applicant's trucking company describing how a group of young men identifying themselves as members of the Kader Brigade, broke into the office, destroyed it and assaulted him.
[13] The second ground advanced by the applicant essentially argues the PRRA officer did not evaluate his risk of return to Bangladesh but rather, evaluated the difficulties experienced by the applicant's associates and family.
[14] The foundation for this ground is the following statement made by the PRRA officer:
I have reviewed the submissions which include photocopies of affidavits describing attacks on the Applicant's associates and families, last year. With sympathy, I find that they do not amount to the extreme gravity contemplated by the legislation.
[15] The final ground of challenge rests on the view the PRRA officer took of the documentary evidence which amply describes the violent nature of politics in Bangladesh. The PRRA officer wrote:
I accept that political violence is common in Bangladesh. My research demonstrates that it is an ongoing activity of the major political parties. It has little to do with politics and much to do with retaliation, power and profit making. As stated by Dr. Harun-or-Rashid, politics in Bangladesh are criminalized. It should be noted that victims of crime and their families are not members of a particular social group as defined in the Supreme Court of Canada decision Canada (A.G.) v. Ward, [1993] 2 S.C.R. 689... . Furthermore, after consideration of the experiences of the Applicant, I cannot find that the treatment the Applicant received was of such a systematic and persistent nature that it would constitute persecution. I find that there is no nexus to the Convention grounds set out in s.96 of the Act. The applicant was not persecuted by reason of any of the grounds. [emphasis mine]
I now turn to a consideration of whether the applicant faces torture, a risk to his life, or of cruel and unusual punishment, as described in s.97 of the Immigration and Refugee Protection Act. I note that the political situation has changed in Bangladesh since the Applicant left approximately 6 years ago. The Awami League is no longer in power. The BNP has power and has been accused of targeting the Awami League. Furthermore, the Applicant has not adduced evidence that he has had an ongoing involvement in the BNP over the last 6 years... .
[16] Counsel for the applicant argues the PRRA officer erred in law in immunizing her section 97 analysis and the applicant's need for protection by conflating his expression of political opinion into criminal activity.
THE PRRA OFFICER'S DECISION
[17] I have already extracted several quotes from the PRRA officer's decision. I only need to touch upon a few additional points.
[18] First, the PRRA officer made reference to the applicant's refugee claim. She stated:
The Board did not find the Applicant's testimony to be plausible and described him in one instance, as first evasive than contradictory. For the record, I note that I am not bound by the decision of the CRDD and that credibility does not form part of this decision. [emphasis mine]
[19] She then described her approach and perspective in these terms:
Risk by definition is forward looking to the possibility of loss, injury or peril. For that reason, I look to the most current publicly available evidence regarding country and human rights conditions in order to make a determination regarding risk. I have carefully reviewed all of the documents submitted by the applicant, as well as other publicly available documents, which are cited through and at the end of these notes. [emphasis mine]
ANALYSIS
[20] The first ground advanced by the applicant engages paragraph 18.1(4)(d) of the Federal Courts Act which provides that this Court may grant relief if it is satisfied that the federal board, commission or other tribunal:
| (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; |
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d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; |
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[21] In Cepada-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), Justice Evans, then a member of the Federal Court Trial Division, provided the appropriate analytical framework for assessing when it could be said a tribunal made an erroneous finding of fact "without regard to the evidence". He wrote:
¶ 15 The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
¶ 16 On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
¶ 17 However, 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": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. [emphasis mine]
[22] My review of the certified record convinces me the applicant must succeed on his first ground. The PRRA officer failed to consider all of the evidence before her in assessing his PRRA application and I stress the tribunal did not base its decision on the applicant's lack of credibility but assumed his story to be true.
[23] The applicant fears for his life because certain individuals in the Awami League are seeking revenge against him.
[24] The source of that hate is because they were arrested in 1995 after the applicant had complained to the police of their extortion attempt during the elections. They spent fifteen days in jail before obtaining bail.
[25] One of these individuals is Abdul Kader who headed the Kader Brigade. He was re-arrested after the BNP came to power in Bangladesh.
[26] The 7th of October 2002 letter to the applicant from his father connects the family's recent suffering to members of the Kader Brigade who blame the applicant for their leader's predicament. To the same effect are the advocate's letter to the applicant and the manager of his trucking firm's affidavit.
[27] The father's letter is important for a fact which he mentions and provides the link between the most recent evidence to the older materials which the applicant says were ignored (i.e., those materials submitted in the PDRCC process which were subsumed in the PRRA process because no decision had been made).
[28] His father mentions that he had recently met Abdul Basher's father who informed him that, out of fear from the terrorists in the Kader Brigade Abdul Basher was in hiding.
[29] Abdul Basher was mentioned by the applicant to the Refugee Division as a co-worker of the applicant who in 1996 resisted the violence of the Awami League then in power.
[30] He is the same person about whom the applicant provided documentary evidence to the Refugee Division alleging the terrorists had chopped off both of his hands.
[31] This evidence was relevant and material to the applicant's risk of return to Bangladesh. It was not referred to by the PRRA officer.
[32] On the test propounded by Justice Evans in Cepada-Gutierrez, supra, I can only conclude his submissions and evidence during the PDRCC process were ignored by the tribunal.
[33] This evidence was unlike the evidence before the Federal Court of Appeal in Ozdemir v. Canada (Minister of Citizenship and Immigration), 2001 FCA 331. There, Justice Evans was of the view the new evidence was not of sufficient importance or probative value that the duty of fairness required the Post Claim Determination Officer ("PCDO") to deal with it expressly in her reasons.
[34] In the circumstances, I need not express my views on the two other grounds of attack made by the applicant. However, I simply mention that on the nexus question the recent decision of the Federal Court of Appeal in Klinko v. Canada, [2003] F.C. 327, would seem to moderate previous decisions where political opinion and corruption are at issue.
[35] For all of these reasons, this judicial review application is allowed, the tribunal's decision is set aside and the applicant's PRRA application is remitted for redetermination by a different PRRA officer.
J U D G E
OTTAWA, ONTARIO
APRIL 8, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6048-03
STYLE OF CAUSE: NEZAM UDDIN SYED (aka: Syed Nezan UDDIN)
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 19, 2004
REASONS FOR [ORDER or JUDGMENT] : Lemieux J.
APPEARANCES:
Anthony R, Norfolk FOR APPLICANT
Sandra E. Weafer FOR RESPONDENT
SOLICITORS OF RECORD:
Anthony R. Norfolk FOR APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada