Ottawa, Ontario, November 29th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
GHANI ABDUL SUMAIR (A.K.A. SUMAIR ABDUL GHANI)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Protection Board (the "Board") dated December 23, 2004 in which the applicant was found not to be a Convention refugee or person in need of protection because he lacked credibility and a subjective fear of persecution in Bangladesh.
FACTS
[2] The applicant, a 22-year old citizen of Bangladesh, claims a well-founded fear of persecution at the hands of members of the ruling Bangladesh National Party ("BNP") because of his work for the Awami League ("AL"), and refusal to join the BNP.
[3] The applicant alleges he became politically active in 2000 in support of the AL, in which he was made head of the "student league". The applicant claims to be targeted by goons of the BNP, and specifically:
i. during the campaign preceding the October 2001 election, he was threatened by BNP supporters and was beaten on one occasion;
ii. following the BNP's election, AL supporters were arrested and tortured;
iii. on June 23, 2002 he was arrested and detained for two days by police;
iv. his father arranged his release and told him he was listed by the intelligence police of Bangladesh as a wanted person so he went into hiding; and
v. in December 2002, the applicant arrived in Canada on a student visa and delayed claiming refugee protection until May 2003, which claim was made one month after his father left his business in Dhaka for fear of harassment by the police and BNP.
ISSUE
[4] Whether the Board made a patently unreasonable credibility finding in respect of an issue material to the applicant's refugee claim.
ANALYSIS
[5] The applicant submits that the Board's cumulative credibility finding is patently unreasonable. Specifically, the applicant submits the Board erred by:
i. giving no weight to documentary evidence advancing his claim of persecution;
ii. drawing an adverse inference from his failure to adduce evidence to resolve the identity issue of his right to claim protection in Pakistan and finding it implausible that he was ignorant of Bangladeshi dual citizenship law;
iii. drawing an adverse inference from his successful departure from Bangladesh using his own passport; and
iv. drawing an adverse inference from his delay in claiming refugee protection in Canada without reasonable explanation.
[6] The Board has expertise that places it in the best position to assess the nature of the risk of persecution faced by a claimant if returned to his or her country of origin. (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 47, Bastarache J.) The Court will intervene where such findings are patently unreasonable (Chen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1194 at paragraphs. 4-5; Aguebor v. (Canada) Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.)). In Chen, supra, I held at paragraphs 4 and 5:
¶ 4 The Board is an expert tribunal in determining refugee claims. In 2001, the Board heard over 22,000 refugee claims, allowing 13,336 claims and denying 9,551 claims. Moreover, the Board has direct access to the testimony of the witness, and is in the best position to assess the credibility made by the Board is that of patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). In Aguebor, the Federal Court of Appeal said:
Who is in a better position than that Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
Before a credibility finding of the Board is set aside (and before leave is granted for an application with respect to a credibility finding), one of the following criteria must be established (or fairly arguable in the case of the leave application):
1. the Board did not provide valid reasons for finding that an applicant lacked credibility;
2. the inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
3. the decision was based on inferences that were not supported by the evidence; or
4. the credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
See Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 at para. 11 per Madam Justice Reed.
¶ 5 Credibility findings of the Board are entitled to the highest degree of curial deference, and the Court will only set aside credibility decisions, or grant leave for applications for judicial review of credibility findings, in accordance with the criteria outlined above. The court should not substitute its opinion for that of the board with respect to credibility or plausibility except in the clearest of cases. For this reason, applicants seeking to set aside credibility findings have a very heavy onus to discharge both at the stage of seeking leave, and at the hearing if leave is granted.
[7] The Board relied upon the failure of the applicant to provide evidence about his right to reside in Pakistan as a basis to find him not credible. The applicant had resided in Pakistan between the ages of seven and fourteen years of age, the applicant's mother and brother currently reside in Pakistan where they are citizens due to their respective births in Pakistan, and the Board found that the documentary evidence indicates that Bangladeshallows for dual citizenship in certain situations. The applicant was born in Bangladesh, did not like living in Pakistanbecause of discrimination which he remembered as a schoolboy, and did not know whether he had the right to reside in Pakistan as a means of escaping persecution in Bangladesh.
[8] Mr. Justice Sean Harrington held in El Rafih v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1036 at paragraph 10:
¶ 10 Citizenship, including dual citizenship, is a complicated issue under international law. National laws may change. Our own laws have undergone dramatic changes of the years (see Wilsonv. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1874).
I agree that understanding the law of dual citizenship can be a difficult and complicated issue. Moreover, the documentary evidence referred to by the Board about dual citizenship law in Bangladesh is not at all clear in relationship to a person in the applicant's position. I find the Board's conclusion that the applicant's failure to know his citizenship status in Pakistan and his "failure to adduce evidence to resolve the issue of his right to reside in Pakistan" do not reasonably support the Board's finding that the applicant is not a credible witness.
[9] It must be remembered that the Board did not identify this as an issue prior to the hearing, and the issue only arose in questioning by the Board at the end of the hearing. The Board improperly made this credibility finding central and material to its overall decision. Accordingly, I must intervene. The Board must not raise an important issue such as a second possible country of reference without giving the applicant notice and an opportunity to respond before relying on that issue to find the applicant's lack of knowledge a material basis for a credibility finding.
[10] In view of the Court's conclusion on this central issue affecting credibility, I will not comment on whether the lesser reasons for dismissing the applicant's credibility were reasonably open to the Board.
[11] Counsel advised that this application does not raise a serious question of general importance which should be certified for an appeal. The Court agrees so that no question will be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review of the Board's decision dated December 23, 2004 is allowed, and the matter is remitted to a different panel of the Board for re-determination.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-341-05
STYLE OF CAUSE: GHANI ABDUL SUMAIR (A.K.A. SUMAIR ABDUL GHANI) v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 22, 2005
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
| Mr. Avi J. Sirlin Toronto, Ontario
|
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| Ms. Angela Marinos Department of Justice Toronto, Ontario |
SOLICITORS OF RECORD:
| Mr. Avi J. Sirlin Barrister and Solicitor
|
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| Mr. John H. Sims, Q.C. Deputy Attorney General of Canada |