Date: 19990719
Docket: IMM-5023-98
IN THE MATTER of the Immigration Act, 1976, as amended, S.C. 1989, c. 35;
AND IN THE MATTER OF a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board regarding the claim to Convention Refugee Status of MASHOWUR RAHAMAN
BETWEEN:
MASHOWUR RAHAMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
| A. INTRODUCTION |
[1] Mashowur Rahman is 30 years old and a citizen of Bangladesh. He was actively involved in the turbulent politics of that country from the time that he was a student until his departure for Canada in 1995. On his arrival in Canada he made a refugee claim, alleging that he had a well founded fear of persecution on account of his political opinions.
[2] The Refugee Division rejected his claim in 1998, as another panel had done a year earlier in a decision that was subsequently set aside by the Court. It relied principally on the change of circumstances that had taken place in Bangladesh since Mr. Rahman left. In particular, the party with which his group had been allied against the then governing party, under which Mr. Rahman said that he had been detained and tortured, is itself now in power. In addition, it found that the criminal charges that are outstanding against him constituted prosecution, and not persecution for the purpose of the refugee definition.
[3] Counsel for the applicant submitted that the principal question in this application for judicial review is as follows. When a person bases her or his fear of persecution on allegedly false criminal charges, is it a breach of the duty of fairness for the Board to dismiss the refugee claim on the ground that the charges were not false, when it had not advised the applicant prior to or during the hearing that its disposition of the claim may turn on whether the charges constitute prosecution, rather than persecution?
[4] Counsel for the applicant pointed out that the box entitled "persecution vs. persecution" on the Refugee Claim Officer File Screening Form had not been ticked. He inferred from this that it would not be an issue at the hearing. Indeed, at the start of the hearing the Board identified change of circumstances and credibility as the principal issues. The prosecution or persecution point was at no time raised at the hearing by the refugee claim officer, a Board member or counsel for the applicant. It was fundamentally unfair, counsel submitted, that the applicant"s claim should have been rejected on a ground that he never had an opportunity to address.
[5] I do not agree. The question is whether the failure to specifically identify the issue before the hearing, or to raise it at the hearing itself, as a potential basis of the decision, can be said to have prejudiced the applicant by taking his counsel by surprise or by misleading him so that he did not introduce relevant evidence.
[6] Since the basis of the claim was that the applicant would face false and politically motivated criminal charges if returned to Bangladesh it would seem obvious that the truth of this allegation would be a central issue for the Board to decide at the hearing. If the Board found that they were not fabricated, then it would follow that the applicant might face prosecution if returned to Bangladesh, but not persecution. The failure of the Board expressly to identify this issue prior to, or during, the hearing did not therefore deprive the applicant of a reasonable opportunity to present his case.
[7] Counsel stated that the Board accepted the authenticity of the charge sheet. However, this is not a statement that it was satisfied on any particular issue relevant to the applicant"s claim.
[8] Counsel also submitted that the applicant should have been asked by the Board whether he thought that there was anything to the charges. He could then have pointed out the discrepancies between the charges on the sheet and his personal information statement. In effect, counsel submitted, the Board found the applicant guilty of charges without hearing from the person accused.
[9] This seems to me to misunderstand the issue before the Board, and its function. The question was not whether the applicant was guilty as charged, and this was not what the Board found. The Board was concerned to decide only whether, on the evidence before it, the applicant had established that the charges against him, and others named with him, involving weapons and other public order offences arising from political demonstrations in the early 1990s, had been fabricated and revived for political reasons. If they were not, they did not constitute persecution for the purpose of the refugee definition.
[10] The Refugee Division concluded that the applicant had not established that the charges were false in this sense. It reached this result on the basis of the evidence before it of the applicant"s political activism, including participating in demonstrations and strikes, and the often violent nature of political protest in Bangladesh.
[11] As I have already mentioned, the Board also noted that the party in power in 1995, and against which the applicant had been working when the charges were laid, was now in opposition. Even though the particular splinter group to which the applicant belongs is now also opposed to the present governing party, with which it had previously been allied, it is of such minor significance that the applicant is unlikely to be the subject of trumped up charges that have been revived under the current administration.
[12] Accordingly, I conclude that in dismissing this part of the applicant"s claim on this ground the Board committed no breach of the duty of fairness. Counsel for the applicant conceded at the hearing that if I found against his client on this issue, his other arguments must also fail. I shall not therefore consider them further.
[13] For these reasons the application for judicial review is dismissed.
OTTAWA, ONTARIO John M. Evans
July 19, 1999. J.F.C.C.