Ottawa, Ontario, February 1, 2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
(a.k.a. Abul Kalam Moha Khan)
REBA KHAN
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This judicial review of a decision of the Immigration and Refugee Board (IRB) involves a review of a credibility finding. While such findings are entitled to considerable deference, this is one of those rare occasions where judicial review must be granted in respect of a credibility finding. This case turns entirely on its facts.
II. BACKGROUND
[2] The Applicants are citizens of Bangladesh who sought refugee status. The principal Applicant (Applicant) claimed fear of persecution from the Bangladesh National Party (BNP) because of his membership in another political party, the Awami League.
[3] The Applicant claimed that between 1989 and 2004 he was the managing director of Hydroland Survey Ltd. By 2003, the other directors of the company (members of the BNP) wanted the Applicant removed from office and allegedly engaged in a series of actions to accomplish this, including alleging misconduct against him and using their political influence and “goons” to threaten and harass him. (This is a very brief synopsis of a very confusing record.)
[4] The IRB Member had considerable difficulty with the Applicant’s story including his explanation for not seeking refugee status in the U.S., the absence of documentary evidence concerning both his corporate position and the allegation of misconduct made against him and ultimately his failure to seek any legal redress. In view of the disposition of this case, the Court will make no further comment on this evidence.
[5] The IRB disbelieved the Applicant’s evidence and in any event found that there was an IFA in Chittagong, a city several hundred miles from Dhaka with a population of over 21 million. The Applicant’s explanation for not seeking an IFA, that he was earning good money and had a good life-style, is certainly inconsistent with a fear of persecution.
[6] The area of the Board’s decision which is clearly troublesome is its treatment of a letter from a local counsel submitted to show that the Applicant was at risk due to politically motivated actions by the police.
[7] The letter reported that the Applicant was being sought by police. The Board said that the lawyer speculated, because he could not determine the reasons for an arrest, that the Applicant was wanted for political reasons. The Board did not believe that the lawyer could not find out the reasons for arrest and found that the Applicant had no political profile which would support being wanted by the authorities. From this the Board concluded that the evidence was manufactured to embellish the claim.
III. ANALYSIS
[8] The standard of review of credibility findings is accepted as “patent unreasonableness”. (Horvath v. Canada (Minister of Citizenship and Immigration), 2001 FCT 583) It is for this reason that the Court is reluctant to overturn this decision.
[9] However, the Board mischaracterized the contents of the lawyer’s letter and from this draws a conclusion for which there is no reasonable support.
[10] The lawyer’s letter specifically states what the reasons are for an arrest – that the Applicant is wanted under the “Special Act”; a process somewhat similar to Canada’s security warrants. There is nothing speculative about this information.
[11] The Board does not challenge the lawyer’s opinion that the Special Act is often used to suppress political views. The Board simply says that to do so does not make sense because the Applicant was not particularly political. The conclusion ignores the Applicant’s allegation that the other directors were using political connections to “get” to the Applicant.
[12] The issue is not whether it makes sense that the authorities would want to arrest the Applicant in these circumstances but whether they were attempting to do so. The Board gives no reason for not believing the lawyer’s letter other than the mischaracterization that the lawyer had not found out the reason for the possible arrest. There is no rational support for the Board’s conclusion.
[13] The Respondent is correct in arguing that even if the Applicant’s basic story is credible, the existence of a viable IFA ends the matter. However troubling the Applicant’s explanation for not seeking an IFA is, the fact that the Applicant was subject to a Special Act arrest and whether such a process may be accomplished anywhere in the country was never considered in the IFA analysis.
[14] The Board’s treatment of the lawyer’s letter adversely impacts its IFA finding as well.
IV. CONCLUSION
[15] For these reasons, the judicial review will be granted, the Board’s decision quashed and the matter remitted to a differently constituted panel for a new determination.
[16] There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is granted, the Board’s decision is quashed and the matter is remitted to a differently constituted panel for a new determination.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7633-05
STYLE OF CAUSE: AKM SHAMSUDDIN KHAN
(a.k.a. Abul Kahalm Moha Khan)
REBA KHAN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 30, 2007
APPEARANCES:
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Ms. Preevanda Sapru
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Ms. Claire Le Riche
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SOLICITORS OF RECORD:
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MS. PREEVANDA SAPRU Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |