Federal Court Decisions

                                                                                                                                            Date: 20020402

                                                                                                                     Court File No.: IMM-42-01

                                                                                                               Neutral Citation: 2002 FCT 363

Ottawa, Ontario, this 2^nd day of April, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                        DRITHIMAN CHOWDHURY

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

NATURE OF PROCEEDINGS

[1]                 This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") dated October 8, 2000, which held that the applicant was not a Convention Refugee.

FACTS

[2]                 The applicant is a 30 year old citizen of Bangladesh. He claims to have a well-founded fear of persecution by reason of his religion, political opinion and membership in a social group, i.e. the Hindu minority in Bangladesh.

[3]                 The applicant's evidence is that his family was persecuted by a local fundamentalist Muslim leader by the name of Shah Alam. As a result, two of his brothers left the country in 1992 and came to Canada where they were both accepted as refugees. After his brothers' departure, the applicant took over the family business and, as a result, claims to have become the target of Shah Alam. The applicant states that money was extorted from him on a monthly basis from 1993 to 1996, however, he did not complain to the police since he knew that they would not help him.

[4]                 In 1993, the applicant became a member of his local Hindu temple. Apparently the Muslim fundamentalists looted and vandalised the temple, but the police did not intervene.

[5]                 In June 1997, the applicant was elected publicity secretary of the Habigonj District of Bangladesh Hindu Buddha Christian Unity Council ("BHBCUC"). During that meeting, a group of approximately 60 Muslim fundamentalists entered the building and beat the members, injuring the applicant who had to go to a clinic for first aid. This incident was reported to the police the next day by the president and secretary of the BHBCUC, but their complaint was not accepted.

[6]                 In 1998, Shah Alam and his followers told the applicant's father that they wanted his land. They threatened him and his family when he refused to sell it. They forcibly took possession of the land about a month later.

[7]                 The applicant's evidence is that in January 1999, Babul, a follower of Shah Alam, and other Muslim fundamentalists went to his business while he was away and asked the manager for 50,000 takas. The manager was insulted and beaten when he told them that he could not pay. They stole money from the cash register before leaving. Despite having been warned not to go to the police, the applicant went anyway, but they were not interested in taking any actions against Shah Alam because they considered him to be a very powerful man. When Shah Alam learned that the applicant had gone to the police, he was apparently furious and ordered the applicant's father to pay 50,000 takas or else he would force the closing of the business. The applicant's father decided to close the business on his own. When Shah Alam learned that the business was closed, once again he became furious and threatened the family.

[8]                 The applicant claims that he was persecuted by Shah Alam and his followers because he was Hindu, a member of BHBCUC, and an active supporter of one of his relative who ran for municipal election in February 1999. As a consequence of helping his relative, Babul and his armed men broke into the applicant's home at night, the applicant was able to escape through the back door. The next day, the applicant learned of the death threats that had been directed towards him, and his father advised him to leave the country.

[9]                 The applicant left Bangladesh on May 28, 1999, he arrived in Canada the next day and claimed refugee status immediately.

CRDD'S DECISION

[10]            In concluding that the applicant is not a Convention refugee, the CRDD stated:

The panel was faced with issues of credibility.

...

The panel concludes that the claimant may have been victim of extortion because he ran a business. This unfortunate situation however bears no link with the Convention. As for his allegations that Hindus are persecuted and can not obtain state protection they are refuted by the documentary evidence, as mentioned above.

ISSUES

[11]            The following issues were argued by the applicant:

           (1) -     The CRDD erred by basing its decision on erroneous findings of fact without regard to the material before it.

           (2) -     The CRDD erred in making unreasonable findings of plausibility and credibility.

           (3) -     The CRDD erred by failing to consider the applicant's main allegation that he was persecuted for his activism work and his campaigning for a Hindu candidate.

STANDARD OF REVIEW

[12]            It is generally accepted that the standard of review of decisions of the CRDD on questions of fact or questions of mixed fact and law is patently unreasonableness. The correctness standard applies for questions involving the interpretation of a statute. [Sivasamboo v. Canada [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4^th) 193.]

[13]            In its reasons the CRDD stated "The claimant in his testimony and his PIF suggests that the Awami League government is on the side of the fundamentalists and against the Hindu minority". The applicant, at paragraphs 11 and 13 of his affidavit, states that the police is on the side of the fundamentalists and that the government fails to take action against the fundamentalists who persecute the Hindus. The CRDD, however, concluded that the documentary evidence demonstrated the opposite, that indeed the state of Bangladesh takes appropriate action to protect the Hindu minority when isolated incidents occur. The CRDD cited, from the documentary evidence adduced by the refugee claim officer and the applicant, examples to support its conclusion.

[14]            The applicant contends that the CRDD erred in being selective in its review of the documentary evidence and selected only the documents that supported its conclusions. The applicant further contends that the CRDD erred by relying on clearly outdated documents, a report dated June 1999, when more recent documentation was available.

[15]            The CRDD in its reasons did recognize that the documentary evidence indicates that in certain circumstances Hindus may be victims of discrimination or even persecution. At page 4 of its reasons, the CRDD also points to more recent documentary evidence notably, the Associated Press, report of July 16, 2000, in support of its conclusion that the majority of Hindus feel adequately protected by the Awami League government.

[16]            In my view, the Board did not err in considering documentary evidence contemporaneous to the alleged incidents. Such evidence would most likely shed light on the credibility of those alleged incidents.

[17]            I accept the respondent's position that there was ample evidence to support the CRDD's finding as to prevailing police and government attitudes. It is accepted law, inasmuch as there is evidence to support a tribunal's finding, that the Court will not intervene in the presence of contrary evidence. In Ganiyu-Giwa v. M.C.I. [1995] F.C.J. No. 506, online: QL, at paragraph 2, Mr. Justice Wetston, citing Tawfik, stated:

...In Tawfik v. M.E.I., 93-A-311, August 23, 1993, MacKay J. [Please see [1993] F.C.J. No. 835], noted that the Board often refers to documents that contain both supporting and non-supporting reference. The Board may select, as part of its role and part of its expertise, the evidence that it prefers...

[18]            In Barua v. M.C.I., [2000] F.C.J. No. 1342 online: QL , my colleague, Pinard J., had to deal with arguments that are very similar to the case at bar and involved the state protection offered by the state of Bangladesh. In his reasons, at para. 10, he held that:

As for the arguments raised by the applicant which are linked to the alleged failure of the Board to consider documentary evidence supporting his claim, the applicant must be reminded that unless the contrary is shown the Board is assumed to have considered all the evidence presented to it (see Florea v. Minister of Employment and Immigration, [1993] F.C.J. No. 598, (June 11, 1993), A-1307-91 (F.C.A.)). In general, the fact that some of the documentary evidence is not mentioned in its reasons is not fatal to the Board's decision (see Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 at 318 (F.C.A.)). It seems to me that the applicant in this case is asking this Court to substitute its assessment of the evidence for the decision of the Board. However, this is not the role of the Court in an application for judicial review (see Tawfik v. Minister of Employment and Immigration (1993) 137 F.T.R. 43 at 46). I am not persuaded that the Board ignored evidence before it or that the Board's assessment of the documentary evidence was unreasonable. In my opinion, the conclusions reached by the Board about the Bangladeshi government's position on the Hindu Buddhist Christian Unity Council and the availability of state protection were reasonably open to it.

[19]            I adopt the above analysis of Pinard J. as I believe it is applicable to this case. The conclusions reached by the CRDD pertaining to police and government attitudes towards Hindu minorities in Bangladesh and the availability of state protection, were reasonably open to it.

[20]            The applicant argues that he was persecuted in his country before his departure and that the CRDD made unreasonable findings of plausibility and credibility. The applicant further submits that the CRDD erred when it failed to raise its conclusions on implausibility in advance of its decision. On this last point, my colleague MacKay J. stated in Sarker v. M.C.I. (1998) 45 Imm. L.R. (2d) 209 (F.C.T.D.) "There is no obligation on the panel to signal its conclusions on implausibility or on the general credibility of the evidence in advance of a decision." In his reasons, MacKay J. stated at page 213:

Here the panel was not concerned with inconsistencies in the applicant's evidence. Rather it found key aspects of the applicant's story to be implausible given the panel's general understanding from documentary evidence of country conditions in Bangladesh, and its own experience. The finding that evidence is implausible is a conclusion based on assessment of its likely veracity in all of the circumstances. That conclusion may only be reached after the hearing is over, all the evidence has been submitted and the panel has opportunity to consider it.

In my opinion there is no obligation on the panel to signal its conclusions on implausibility or on the general credibility of evidence, in advance of a decision. Rather, the onus remains on the applicant to establish by credible evidence his claim to be considered a Convention refugee.

[21]            Questions of credibility are best left to the discretion of the CRDD. It was determined in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, pp. 316-317 at paragraph 4, by Décary J., that these questions are within the CRDD's jurisdiction and that the standard of review is patently unreasonableness:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the 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. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn.

[22]            I have carefully considered the applicant's arguments and I have reviewed each and every one of the negative plausibility and credibility findings of the CRDD. The applicant has not satisfied me that the CRDD's assessments are either perverse, capricious or manifestly unreasonable and unsupported by the evidence.

[23]            Finally, the applicant's contention that the CRDD failed to consider his allegation that he was persecuted because of his activism work and political campaigning must also fail. The CRDD did consider this allegation at page 1, paragraph 7 of its reasons:

Shah Alam and his goons persecuted Mr. Choudhury because he was a Hindu, a member of Bangladesh Hindu Buddha Christian Unity Council, and an active supporter of one of his relative who ran for municipal election in February 1999.

I am of the view that the CRDD's conclusion that the applicant may have been a victim of extortion was reasonably open to it.

[24]            I am also satisfied, in the instant case, that the inability of state protection was not proven by the applicant.

[25]            For the above reasons I can find no reason for this Court to intervene in the CRDD's decision. This application for judicial review will be dismissed.

[26]            The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.

                                                                            ORDER

THIS COURT ORDERS that:

1.         The application for judicial review is dismissed.

                                                                                                                                "Edmond P. Blanchard"            

                                                                                                                                                               Judge