Date: 20030422
Docket: IMM-493-02
Citation: 2003 FCT 470
OTTAWA, ONTARIO, THIS 22nd DAY OF APRIL 2003
PRESENT: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
FARUK AHMED
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated January 9, 2002, wherein the Board determined that the applicant, a citizen of Bangladesh, was not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"), which reads:
| 2. (1) In this Act,
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(I) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
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(b) has not ceased to be a Convention refugee by virtue of subsection (2),
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2. (1) Les définitions qui suivent s'appliquent à la présente loi.
« réfugié au sens de la Convention » Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(I) soit se trouve hors du pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
...
b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).
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[2] In the case at bar, the Board found that the applicant did not have a well-founded fear of persecution by reason of his alleged political activities, due to the change of government in his country of origin. Furthermore, the Board concluded that the applicant's story was a fabrication and found no credible basis to his claim, as described in subsection 69.1(9.1) of the Act which reads:
| 69.1(9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim. |
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69.1(9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut.
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[3] I will start with a few general comments.
[4] First, it is trite law that the Board has a well-established expertise in the determination of questions of fact, particularly in the evaluation of the credibility of claimants and the availability of state protection in the claimant's country of origin. A thorough review of the applicable principles and their application can be found in Lubana v. Canada (Minister of Citizenship and Immigration), (2003) FCT 116 (F.C.T.D.). It is sufficient to state here that the Board is the trier of facts and is entitled to make reasonable findings regarding the credibility of a claimant's story based on implausibilities, common sense and rationality. Accordingly, before a finding of fact is set aside by this Court, it must be demonstrated that it is patently unreasonable: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraph 50; Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[5] Second, a claimant must always establish that his fear of persecution is justified. Accordingly, both elements, subjective and objective, of the definition of "refugee" in section 2 of the Act must be met: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.); and Zambo v. Canada (Minister of Citizenship and Immigration) (2002), 23 Imm.L.R. (3d) 267 at paragraph 22 (F.C.T.D.).
[6] Third, the restriction mentioned in the definition of "refugee" excludes a person who has ceased to be a Convention refugee by virtue of subsection 2(2) of the Act, such as when the reasons for the person's fear of persecution cease to exist. Accordingly, political developments in a claimant's country of origin which have removed the reason for his fear of persecution are relevant to whether that person can validly maintain that he is a Convention refugee. The question then is not whether the claimant had reason to fear persecution in the past, but whether if he still has a well-founded fear of persecution: Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (F.C.A.), at paragraph 8. This entails an analysis of the factual situation at the time his claim is being decided.
[7] Turning to the specific issues raised in this case, and applying the principles set out above, I conclude that the findings made by the Board were reasonably open to it and that there are substantial elements found in the evidence which support the Board's general conclusions.
[8] Contrary to the applicant's argument, it cannot be said that the Board's findings were not based on the evidence. I also find that the Board's obligation to provide clear reasons has been satisfied here. It wrote as follows:
The core of the claimant's story revolves around his alleged political activities, and the persecution he suffered from the party then in power, the Awami League. However, in the general election of October 2001, the BNP was elected with a crushing majority. The BNP has now formed the government. This is a profound change of circumstances. The Awami League, having been soundly defeated, is no longer a major force to be reckoned with in the country.
It is definitely not credible that a young man who pretends to be politically dedicated in the extreme would deliberately choose to exile himself in a foreign country, when the party he fought for during eight years has succeeded decisively in unseating the previous government, source of his alleged persecution. Both claimant and counsel argued that because Mr. Ahmed left his country before the election, he could now be snubbed by his former friends. The panel disagrees with this simplistic construction. Loyalty may be fragile in political circles, but nevertheless, we cannot conceive how a longstanding active BNP member would be persecuted now by the former government, let alone by his own party. This makes no sense.
The conclusion is simple: Mr. Ahmed ran out of luck when, having already filed a story in January 2001 based on persecution by the Awami League, the party he allegedly belonged to came to power on October 1, 2001, thus rendering this PIF totally irrelevant.
The panel concludes that the claimant's story is a fabrication designed to obtain permanent residence in Canada without going through the proper channels. International protection is a serious matter whose purpose is to help those who face a reasonable risk of persecution should they return to their country of origin. It is not intended to be used as a form of immigration in disguise. We refer to Urbanek. Accessing Canada fraudulently for whatever reason is not acceptable and should be discouraged by all means.
Since we do not believe the claimant's allegations, we do not give probative value to the documents he filed to corroborate his claim. We refer to Hamid.
[9] Despite his counsel's able efforts, the applicant has failed to convince me that the Board's findings with respect to the change of circumstances, and corollary determination with respect to the absence of fear, are perverse or capricious. As appears from the above reasons, the Board did consider the impact of those changes on the applicant's situation. In light of the evidence on record, although the changes were somewhat recent, it was reasonably open to the Board to conclude, in view of the fact that the Bangladesh Nationalist Party (the "BNP") was elected with a crushing majority and the BNP has formed the government, that the applicant's alleged fear of persecution by the Awami League could no longer be objectively justified. Therefore, the Board concluded that in light of the applicant's statements, it was unlikely that such evidence could support his claim of a well-founded fear of persecution upon returning to his country. In view of the very limited nature of the continuing fear still alleged by the applicant, I find that it was not necessary to expressly state that the Board considered those changes to be "truly effective and durable" (a conclusion which, arguably, is implicit in the Board's decision).
[10] Moreover, in the Board's decision, the applicant's lack of credibility and the absence of subjective fear was justified. The Board noted that the pursuance of his refugee claim was inconsistent with the portrait the applicant painted of himself: a young man who pretends to be politically dedicated, who fought for eight years in his country, and who would now seek to be declared a refugee when his party has formed the government since October 2001. This rendered his story highly implausible. Furthermore, the Board simply did not believe the explanation of the applicant that he might be snubbed by his former friends for leaving the country. These inferences were reasonably open to the Board.
[11] This negative credibility finding extended to the rest of the applicant's testimony, specifically regarding the allegation of possible attacks by the Awami League despite the change in power: Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (F.C.A.), at page 244. Furthermore, since the only evidence linking the applicant to the harm he alleged was found in his testimony, and the claimant was found to be not credible, the Board could make a general finding that there is no credible basis for the claim provided that there was no independent and credible documentary evidence which would otherwise support a positive determination of his refugee claim: Foyet v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1591, at paragraph 19; and Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537 at paragraphs 19 and 50 (F.C.A.) ("Rahaman").
[12] In the case at bar, it is apparent from reading the reasons given by the Board that it assessed both the oral and documentary evidence in light of the "profound change of circumstances" already noted above. The Board's conclusion of "no credible basis" is easily understandable and directly flows from its general reasons: Kanvathipillai v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1172 at paragraph 32. Moreover, the applicant has failed to convince me that the Board ignored "independent and credible documentary evidence", which at the time the Board rendered its decision, and considering the change of circumstances, "must have been capable of supporting a positive determination of the refugee claim", as the Federal Court of Appeal requires in order to preclude a "no credible basis" finding: Rahaman, supra, at paragraph 19.
[13] Accordingly, there is no basis for judicial intervention and the application for judicial review is dismissed. Counsel agree that there is no question of general importance arising for certification.
ORDER
THIS COURT ORDERS that the application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated January 9, 2002, be dismissed. No question of general importance will be certified.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-493-02
STYLE OF CAUSE: FARUK AHMED v. MCI
PLACE OF HEARING: MONTREAL
DATE OF HEARING: MARCH 27, 2003
REASONS FOR ORDER AND ORDER: THE HON. MR. JUSTICE LUC MARTINEAU
DATED: April 22, 2003
APPEARANCES:
MS DIANE N. DORAY FOR APPLICANT
MR GUY LAMB FOR RESPONDENT
SOLICITORS OF RECORD:
MS DIANE N. DORAY FOR APPLICANT
MS SYLVIANNE ROY FOR RESPONDENT