Ottawa, Ontario, June 22, 2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Masud Talukder is a citizen of Bangladesh who claims to fear persecution at the hands of the police, as well as “goons” from the Bangladesh National and Jamat-e-Islami political parties. He claims to have been targeted by these groups because of his profile as a successful businessman and member of the Awami League.
[2] The Refugee Protection Division of the Immigration and Refugee Board rejected his claim, finding that it was based solely on Mr. Talukder’s alleged profile as a successful businessman, and not on his party membership. Moreover, the Board found that Mr. Talukder had not provided credible evidence to establish that he was in fact a successful businessman in Bangladesh.
[3] Mr. Talukder now seeks judicial review of the Board’s decision, asserting that the Board acted unfairly in finding that he had not established that he was a successful businessman given that the Board had not identified this as an issue to be addressed at the hearing. The Board erred further, he submits, in failing to give weight to documentary evidence produced by him that he says establishes that he was indeed a successful businessman.
[4] Mr. Talukder also submits that the Board acted unfairly in finding that his failure to leave Bangladesh in a timely manner was inconsistent with a subjective fear of persecution on his part, in that the Board did not identify “delay in leaving” as an issue to be addressed at his refugee hearing.
[5] For the reasons that follow, I am satisfied that the Board did not act unfairly, and that its negative credibility findings were reasonably open to it. As a consequence, the application for judicial review will be dismissed.
The Board’s Decision
[6] Given Mr. Talukder’s assertion that every Bangladeshi businessman must pay extortion money, whether associated with the ruling party or not, the Board found that Mr. Talukder’s alleged association with the Awami League was not a factor in his claim. No issue has been taken with respect to this finding.
[7] The Board then rejected Mr. Talukder’s claim that he had been targeted for extortion because of his profile as a successful businessman. In this regard, the Board found that Mr. Talukder had failed to provide sufficient credible and trustworthy evidence to establish that he was indeed a successful businessman in Bangladesh.
[8] The Board found that the documents produced by Mr. Talukder to support his claim to have run a successful restaurant and import/export business were not persuasive. A membership certificate for the Bangladesh Grocery Business Association did not establish that Mr. Talukder was involved in these businesses. Moreover, the Board found the document to be of questionable reliability, as it appeared to have been completed incorrectly.
[9] A second certificate indicated that Mr. Talukder was “a member of market numbering 400”, and that he had been involved in “the trader business” for “a long time”. The Board held that given the minimal amount of information on the document, it was of limited assistance.
[10] The final document provided by Mr. Talukder, which was produced after the hearing, was a photocopy of a lease for the premises in which he allegedly operated his restaurant business. The Board rejected this document, in part because Mr. Talukder had testified that his business documents, including his lease, had been stolen by Jamat-e-Islami looters in March of 2005. In the Board’s view, the subsequent production of a copy of the lease, without any explanation as to how it had been obtained, put the authenticity of the document into question.
[11] The Board found that it would have been reasonable to expect that Mr. Talukder would have been able to produce documents relating to his businesses such as banking records, accounting records, receipts, letterhead, calling cards, constating documents or photographs. The failure to produce such documents, coupled with inconsistent statements on his part as to the nature and location of his business interests led the Board to conclude that Mr. Talukder had not established that he was indeed a successful businessman in Bangladesh.
[12] Given that Mr. Talukder claimed to have been targeted because of his profile, the Board rejected the claim.
[13] The Board further found that the fact that once he allegedly feared for his life, Mr. Talukder chose to try to get a Canadian visitor’s visa rather than use the British visitor’s visa that he already possessed to flee the country was inconsistent with his having a subjective fear of persecution.
Analysis
[14] It should be noted at the outset that the arguments advanced on behalf of the applicant at the hearing of this application bore only a passing resemblance to the arguments identified in the applicant’s memorandum of fact and law, which was evidently prepared without the assistance of counsel. When this was raised with the parties by the Court, counsel for the respondent indicated that she was prepared to respond to the applicant’s reformulated arguments, and asked only that she be allowed to provide additional jurisprudence to the Court after the hearing. We proceeded on this basis, and the parties’ further submissions have been taken into account.
[15] Mr. Talukder’s arguments relating to his alleged profile as a successful businessman raise questions of both procedural fairness and credibility. It is not necessary to go through a pragmatic and functional analysis in relation to a question of procedural fairness – it is for the Court to determine whether the procedure that was followed in a given case was fair or not, having regard to all of the relevant circumstances: Sketchley v. Canada (Attorney General), [2005] F.C.J. No. 2056, 2005 FCA 404, at ¶ 52-53.
[16] Insofar as the application raises questions as to Mr. Talukder’s credibility, the decision should only be set aside if the Board’s findings were patently unreasonable.
[17] Mr. Talukder bases his procedural fairness argument on the fact that the Board did not specifically identify his profile as a successful businessman as an issue to be addressed at the hearing. In this regard, he notes that under the heading of “Identity”, the IRB’s screening form has a box entitled “Education/Occupation” to be marked off where those matters are deemed to be of concern in a given case. As the Board did not tick off this box, it was unfair, Mr. Talukder says, for the Board to find that he had not established that he was indeed a successful businessman in Bangladesh.
[18] This error was compounded, Mr. Talukder says, by the fact that no mention was made of this as an area of concern at the commencement of the hearing, when the presiding member reviewed the issues to be addressed.
[19] I do not accept that Mr. Talukder was denied a fair hearing for several reasons.
[20] First of all, credibility is always an issue in every refugee claim. Furthermore, the IRB’s screening form is quite explicit in that the boxes that are checked off represent only a preliminary assessment of the issues that are considered to be central to the claim. The form specifically states, however, that “[T]he claimant should file evidence, in accordance with the RPD Rules, and be prepared to testify with respect to all aspects of the claim for refugee protection.” [emphasis added] In this case, Mr. Talukder’s profile as a successful businessman was not a peripheral matter, but was central to his claim.
[21] Indeed, Mr. Talukder clearly understood that he was required to provide documents supporting his alleged profile, as is evidenced by the fact that he did provide some such documentation at the hearing.
[22] Moreover, during the course of the hearing, questions were asked by the presiding member about Mr. Talukder’s conflicting testimony regarding his business interests in Bangladesh and the United Kingdom. The presiding member also clearly expressed his concern about the absence of documents to support Mr. Talukder’s claim. No objection was raised with respect to this line of questioning, and no concern with respect to the fairness of the process was mentioned by either Mr. Talukder or his counsel, either at the hearing or afterwards. There was never any suggestion that they were not prepared to deal with the issue. Moreover, no request was made for additional time to provide additional documents supporting the claim after the conclusion of the hearing. Indeed, there is no suggestion that Mr. Talukder had any other business documents to support his claim that he could have provided.
[23] Finally, the Refugee Protection Officer’s post-hearing submissions puts the issue of Mr. Talukder’s profile as a successful businessman squarely in issue. No concerns were raised in the written submissions subsequently filed by Mr. Talukder’s counsel as to the fairness of this issue being raised at that point in the hearing.
[24] In all of the circumstances, I am satisfied that Mr. Talukder properly understood the issues that he had to address in his refugee hearing, and was afforded a fair opportunity to address those issues.
[25] With respect to the Board’s finding that Mr. Talukder’s evidence as to his business interests was not credible, Mr. Talukder’s own counsel acknowledged in his closing submissions before the Board that his client’s testimony had differed at times, and had at some points in the hearing been “turgid and disjointed”.
[26] Moreover, the Board gave a clear explanation for rejecting Mr. Talukder’s testimony in this regard. In particular, the Board noted that Mr. Talukder’s application for a Canadian visitor’s visa made no reference to either his restaurant or his import/export businesses in Bangladesh. In these circumstances, I am satisfied that Board’s finding that Mr. Talukder had not satisfactorily established his profile was one that was reasonably open to it.
[27] The Board’s finding that Mr. Talukder had not established that he had the profile on which his claim was based was the primary basis for its decision, and was determinative of his claim. Therefore, it is not necessary to address the Board’s alleged error relating to the Board’s subsidiary finding regarding Mr. Talukder’s delay in leaving Bangladesh.
Conclusion
[28] For these reasons, the application for judicial review is dismissed.
Certification
[29] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is dismissed; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4666-06
STYLE OF CAUSE: MASUD TALUKDER v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 20, 2007
APPEARANCES:
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John Guoba
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Alison Engel-Yan |
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SOLICITORS OF RECORD:
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JOHN GUOBA Barrister & Solicitor Toronto, Ontario
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JOHN H.SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |
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