Date: 20010525
Docket: IMM-3392-00
Neutral Citation: 2001 FCT 526
BETWEEN:
MOHAMMAD MAINUDDIN SARKER
NASRIN SULTANA
MISHKAT SARKER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the Immigration and Refugee Board's (the"Board") decision rendered on May 24, 2000, wherein the Board determined that the applicants were not Convention refugees.
FACTS
[2] The applicants, Mohammad Mainuddin Sarker ("male applicant"), his wife Nasrin Sultana ("female applicant") and their daughter Mishkat Sarker, are citizens of Bangladesh. They claim a well-founded fear of persecution in their country based on their membership in a particular group, that of the family.
[3] The male applicant is twenty-seven years old and was born in Zigatola, Dhaka. He studied at the Dhaka National University from June 1992 to November 1994 and obtained a Bachelor's degree in 1994.
[4] The male applicant originally indicated that he worked in Dhaka from October 1990 to August 1997. However, before the Board, he added he worked in Chittagong for a six month period (from January to June 1996) and that he stopped working in November 1996 instead of August 1997. He alleged he was unemployed until his departure.
[5] The male applicant alleged that in June 1993, while working with a social group as a volunteer, he met his wife to be who was fifteen years old at the time. She alleged she was living with her uncle in Dhaka and was finishing high school. She claimed that when her uncle learned of their relationship, he expressed his disapproval.
[6] The female applicant entered the T and T College in July 1994. She told her uncle she was planning to get married after finishing college. Her uncle then announced to her that her parents had already arranged a marriage for her, since she was twelve and that she was to forget her love affair. She then told her uncle she would marry without her family's consent.
[7] On November 17, 1995, she was taken out of college in Dhaka and sent back to her parents' home in B. Baria. She alleged that her parents had planed a wedding party for her on January 1, 1996 (corrected at the hearing to January 5).
[8] On November 27, 1995, the male applicant went to B. Baria to meet with her family to get them to change their minds. He was beaten with rods and sticks and was threatened with reprisals from her powerful and wealthy family.
[9] In her PIF, the female applicant originally wrote that she escaped from her parents' home on November 30 to join her fiance in Dhaka. She later corrected that date to January 4. In his PIF, the male applicant originally wrote that his wife escaped on January 2, which he later changed also to the 4th. The applicants alleged that they got married on January 8, 1996.
[10] The applicants also alleged that the female applicant's family is an influential and wealthy family with important ties to the Awami League. The male applicant alleged that his father had been a member of the Muslim League but stopped his political activities in 1975. This divergence in their respective political backgrounds was a source of conflict which led to the threats against the couple on the part of the wife's family. The female applicant alleged that her parents would stop at nothing to break their marriage.
[11] After their wedding, the applicants left Dhaka for six months. On the corrections, they added they went to Chittagong. The male applicant alleged that on January 14, Awami League goons and the police raided his father's house in search of them.
[12] The male applicant's father was insulted and threatened that if he did not reveal the applicants' whereabouts he would suffer the consequences. In her PIF, the female applicant wrote that from January 2 to October 1995, her parents and their Awami League contacts, as well as the police, tortured her husband's father and his brother. At the hearing, the date was corrected to January 6th instead of 2nd.
[13] In June 1996, the applicants returned to Dhaka. Local Awami League people, on the order of the wife's family, were distributing leaflets accusing the husband of kidnapping and forceful marriage. A reward was offered. The male applicant's father complained to the police who suggested the two applicants give themselves up.
[14] The male applicant alleged that in July, his brother was kidnapped by A.L. hooligans for three days during which he was tortured.
[15] On November 7, the two applicants went to the police in Dhaka to give themselves up. The female applicant was taken back to her parents. She was five months pregnant. Her husband alleged he was kept at the police station for two days. He refused to sign divorce papers and was supposedly beaten by the police. He was released two days later when his father paid a bribe. The applicant alleged he filed a complaint with the Family Court but did not hear from them.
[16] On December 12, 1998, the female applicant alleged that her parents tricked her into taking abortion pills instead of iron tabled in order to induce a miscarriage. She became very ill and her parents had to take her to a hospital. They told the nurses she had tried to commit suicide.
[17] On January 10, 1997, the female applicant fled her parents' home again and returned to her husband in Dhaka. Her husband alleged in his PIF that they stayed one month at a friend's house after which she was taken to the Malekunessa Maternity Clinic. She gave birth at the clinic on March 25. Her husband alleged no one knew who she was except the doctor who delivered the baby.
[18] In May 1997, the female applicant alleged in her PIF that she wrote her higher secondary exams at the Norshindi School near Dhaka.
[19] In August, her husband allegedly tried, through a lawyer, to negotiate an arrangement with his wife's family but they refused to recognize their marriage and further threatened to kill them if they found them. His wife's family and their Awami League hooligans so harassed and threatened his parents that they were forced to move and are now living in a slum area.
ISSUES
[20] 1. Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
2. Did the Board err in its interpretation of subsection 69.1(9.1) of the Immigration Act?
ANALYSIS
1. Did the Board err by making adverse findings of credibility on an arbitrary basis or without proper regard to the evidence before it?
[21] The Board found the applicants not credible and that the many changes and errors in their PIF marred their credibility. The Board also found that the applicants gave no satisfactory explanations to clarify their many errors and changes.
[22] The applicants submit that the Board's adverse findings of credibility were not properly founded on the evidence before it and were made without regard to the totality of the evidence. In addition, the Board ignored the reasonable explanations of the applicants and the documentary and testimonial evidence before it.
[23] The Federal Court of Appel in Aguebor v. M.E.I. (1993) 160 N.R. 315 (F.C.A), stated:
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.
[24] The applicants allege that the Board made a serious error when it wrote "that the changes had to be faxed to the applicant's lawyer before being corrected".
[25] The applicants contend that this is not an accurate reflection of the male applicant's testimony. According to the applicants, the male applicant declared that he wrote the PIFs while he was at his lawyer's office. He then brought them to the Montreal office of the Immigration and Refugee Board where he was informed that he had to send them to Toronto. He then ran back to his lawyer's office in order to fax them to Toronto.
[26] At page 5 of its decision, the Board states:
Moreover, they gave no satisfactory answer to clarify their many errors and changes other than their story was written in a rush and faxed to their lawyer without having been corrected.
[27] The male applicant's testimony is as follows at page 35 of the transcript:
I wrote in the PIF, "At the end of ‘97". When I wrote it, I got only time of three days. I wrote it but I did not have the time to see carefully. The assistant of my previous lawyer told me that he took permission for one month. But my lawyer told me that no permission was taken.
The day on which I wrote down the PIF, I was sent to the IRB Board with my PIF. When I came here, they told me that, "You are to submit it at Toronto." Then I arrive to the official day, the lawyer, I told him, "Today the last day. What should I do?" Then Mr. Hébert told me that, "You don't worry, I'll fax it to Toronto. You don't need to sit again, you don't need to type it. If you wanted to make any correction, you can do it later on."
He told me that, "It is my mistake. I asked my assistant Tarek (phonetic) to take time, but he did not take it." So it was sent by fax, and in the afternoon it was sent by courier mail.
[28] I agree with the applicants that the Board misinterpreted the male applicant's testimony regarding where the PIF and his story were faxed. However, I cannot find this mistake material to the Board's conclusion. It is still true that the applicant explained that he wrote his PIF in a hurry. The fact that it was faxed to the Board instead of his lawyer is not important. The Board still understood the male applicant's testimony and the fact is that the PIFs where faxed without having been corrected and the Board did not accept the applicants explanation.
[29] The applicants also argue that the Board misconstrued their evidence when it wrote that the female applicant made a mistake of two weeks in the date of her arranged marriage by writing it was set for January 15. The applicant did give the wrong date, but it was only a matter of a few days, not two weeks.
[30] The Board stated at page 4:
The wife claimant's PIF was also corrected for this event. She originally wrote that she left her parents on November 30th, 1995 to join her future husband in Dhaka. This date was changed to the 4th of January 1996. The claimant also changed the date her parents had fixed for her prearranged marriage. In her story, she wrote the wedding was to take place on the 15th of January. That was changed to the 5th.
[31] At page 2 of her story annexed to her PIF, the applicant wrote:
I found that Jan 1st was my weading , [sic] party with the groom of my family's choice.
[32] However, I wish to point out that the Board's mistake, that the applicant wrote January 15 instead of January 1, is understandable since the "s" of "1st" looks like a 5, therefore, it can be read as "15t".
[33] Nevertheless, had the Board verified the transcript at page 29, it would have found that counsel for the applicant indicated:
[...] Page number 2, last paragraph, third line from the top: "I found that January 1st...", it's, "January 5th was my wedding party."
[34] I agree with the applicants that it should have been read 1st of January instead of "15t" of January.
[35] However, the Board was pointing out the fact that the applicants had to make various changes in their PIFs. It did not accept the applicants' explanation as to why there were so many corrections and I do not believe that the date, whether it was January 1st or January 15th made a difference for the Board's conclusion. The fact remains that the Board knew that the date was not January 15th but January 5th. Therefore, the Board's conclusion that there was a six-week error in dates still stand. Whether, the Board counted the weeks from November 30th to January 1st, 5th, or 15th, is not the important part of its conclusion. The Board only wished to show that the discrepancy was more than a couple of days.
[36] The applicants further submit that the Board misconstrued the evidence when it described a discrepancy between the male applicant's PIF and the letter from his lawyer. In its decision, the Board writes at page 6:
In support of this fantasy, the husband claimant alleges at one point that the continuous harassment of his parents by the all powerful parents of his wife had driven them to live in the slum area of Dhaka. According to the claimant's lawyer in Bangladesh (P-13), his father's address has remained unchanged.
[37] In his story annexed to his PIF, the male applicant stated:
After coming to the Canada I have come to know that Awami League Hooligans have forced my family to move another place. My parents now living in a slum area.
[38] The applicants contend that the letter from their lawyer confirms their evidence. In his letter, the applicants' lawyer indicates:
On August the 20th 1997 My [sic] client Mohammad A Mannan, residing in 22/2 Zigatola of Dhaka has appointed me as his Lawyer for helping his youngest son Mohammad Mainuddin Sarker.
[...]
Following this incidence, at one stage Mainuddin Sarker and Nasrin Sultana were compelled to leave the country most sorrowfully together with their infant daughter of 7 months of age as there was fear of losing there lives if they lived in the country at that time. Simultaneously with that incident Mohammad Abdul Mannan and the members of his family left their residence being afraid of the abuses of power by the Ward Commissioner of the area and Mr. Hannan Miah. Subsequently this situation became pacified for the time being when he returned to his residence again by giving an undertaking that he has severed all the connection with his son (Mohammad Mainuddin Sarker).
[39] Although it is true that his father's address remained unchanged, the letter from the applicants' lawyer confirms the male applicant's testimony that his father and his family left their residence. However, from the male applicant's evidence, the reasonable conclusion is that his parents moved and are currently living in a slum area. However, the lawyer's letter indicates that they moved for a while and then came back to their residence, once the situation was calmer.
[40] I agree with the applicants that their lawyer's letter does not contradict the male applicant's evidence. However, despite this misconstruction of the evidence, I cannot find that it is sufficient to warrant the intervention of this Court. This is only one of the Board's reasons to disbelieve the applicants. The Board gave many other reasons why it disbelieved the applicants. These other reasons are supported by the evidence and are sufficient to justify the Board's conclusion.
[41] As was stated in Rajaratnam v. M.E.I. (1991), 135 N.R. 300 (F.C.A.), by Stone J.:
If it is apparent that a decision of the Board was based on the claimant's credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court (Brar v. Minister of Employment and Immigration, Court File No. A-937-84, Judgment rendered May 29, 1986). Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility.
[42] Furthermore, as was stated by Simpson J. in Kutuk v. M.C.I., [1995] F.C.J. No. 1754 (F.C.T.D.):
Contrary to the applicant's submission, it is my view that the Board was entitled to consider the contents of the PIF before and after its amendment. It was also entitled to draw negative inferences about credibility, if matters it considered important were only added to the PIF by amendments made at the hearing. I can find no reviewable error in the Board's treatment of this issue.
[43] I carefully reviewed the evidence before the Board, and I cannot find that the Board's conclusions are not supported by the evidence or that its decision is patently unreasonable.
[44] The applicants further submit that the Board erred by completely ignoring two of the medical and psychiatric reports submitted by the applicant's doctors.
[45] I cannot find that the Board erred because it did not mention the other medical reports.
[46] In Florea v. Canada (M.E.I), [1993] F.C.J. No.598 (F.C.A.), the Federal Court of Appel held at paragraph 1:
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed.
[47] The applicants also contend that the Board erred by rejecting the psychiatrist's expertise.
[48] The Board found at page 7 of its decision:
Finally, the panel examined closely the psychiatric evaluation adduced as P-9 concerning the wife claimant's mental problems when she arrived in Canada. The panel found it contained several discrepancies with allegations the panel had already concluded lacked credibility. The panel believed that P-9 is not consistent with its own findings and therefore cannot give it any probative value.
[49] In Bula v. Canada (Secrétaire d'État), [1994] A.C.F. no 937 (F.C.T.D.) aff. [1996] A.C.F. no 876 (F.C.A.), Noël J. stated:
Le requérant met de l'emphase sur le fait que le tribunal, en le jugeant non crédible, a mis de côté les conclusions du rapport d'expert du Docteur Brown qui faisait état du fait que le requérant était atteint d'un désordre post-traumatique. Ceci, selon le témoin expert, pouvait expliquer les oublis du requérant lorsqu'il a rempli sa fiche lors de son entrée au Canada. Le requérant soumet que la section n'avait pas la compétence pour rejeter ce témoignage.
Je suis d'avis contraire. C'est à la section, en tant que tribunal spécialisé dans l'appréciation de revendications au statut de réfugié, que revient la tâche de décider du bien-fondé d'une demande. Alors qu'un témoignage d'expert peut être de grande utilité dans des domaines particuliers, il s'agit là d'une preuve comme toute autre et c'est au tribunal de déterminer le poids qui doit y être accordé.
[50] I find that the Board was entitled to conclude as it did in light of its findings regarding the applicants' lack of credibility.
2. Did the Board err in its interpretation of subsection 69.1(9.1) of the Immigration Act?
[51] The applicants further contend that the Board erred when it found that the applicants had an absence of a minimum of credibility pursuant to subsection 69.1(9.1).
[52] The applicants argue that the case at bar is exactly on point with the case Mizanur Rahman v. Canada (M.C.I.), [2000] F.C.J. No. 1800 (F.C.T.D.) which was pending before this Court at the time the applicants filed their memorandum. It has now been heard and dismissed by Teitelbaum J.
[53] The applicants rely on the arguments made in Rahaman, supra and submit that the "manifestly unfounded" standard under subsection 69.1(9.1) does not encompass claims where the claimant was simply found not to be a credible witness by the Board. It is submitted that it would be erroneous and contrary to public policy to allow a finding of no credible basis in this circumstance.
[54] In the alternative, the applicants submit that if the Board was entitled to have invoked subsection 69.1(9.1), then the minimum it was mandated under paragraph 69.1(9.1)(111) is to have given written reasons for this decision, as it was a decision that was against the applicants.
[55] In Rahaman, supra, Teitelbaum J. held:
Subsection 69.1(9.1) of the Act states:
(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.
(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.
In Mathiyabaranam v. M.E.I. (1995), 94 F.T.R. 262, this Court held that given the serious consequences of a no credible basis finding, the Board was required to provide the applicant with notice that the issue was being considered so as to have an opportunity to make submissions. This decision was later overturned by the Federal Court of Appeal, [1997] F.C.J. No. 1676, when it ruled that an applicant has no right to any extra notice of the possibility of a no credible basis finding.
While the applicant has no right to make submissions on this point, the effects of a no credible basis finding are serious as the applicant is not entitled to the quasi-appeal process afforded to Post-Determination Refugee Claimants in Canada. Only a seven day stay of removal is given, and therefore, such a finding is of high importance to all claimants.
The distinction between credibility and a no credible basis finding is central to the factual situation presented by this applicant. This issue was addressed in Abdulhakim Ali Sheikh v. Minister of Employment and Immigration, [1990] 3 F.C. 238 at page 244 where the Court stated:
The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself ... a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim.
... even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony.
After having assessed the evidence, the Board found that the applicant himself lacked credibility, and secondly, that there was no documentary evidence to support the applicant's assertions upon which he based his claim. Thus, it concluded that there was no credible basis for his claim.
At paragraph 46 of the applicant's Memorandum of Fact and Law, the applicant argues that the Board was required to give an explanation for its finding that no credible or trustworthy evidence existed upon which to found this claim for refugee status.
With all due respect, I find that the Board was clear in stating that only after having heard the claimant's testimony, the observations of the Refugee Claim Officer, and after carefully reviewing and analysing the evidence, it found that there was a general problem with the claimant's credibility.
More specifically, the Board found the applicant lacked credibility in demonstrating his level of implication in the BNP, a crucial factor in his claim. The applicant attempted in both his PIF and in his testimony to illustrate a significant level of involvement in the BNP and the associated problems this now created for him in Bangladesh.
I must note, however, that the assessment by the Board on the issue of police protection illustrates a lack of appreciation of the circumstances in Bangladesh as they are described in the documentary evidence.
In particular, the evidence states that in July 1995 plainclothes policemen had reportedly organized attacks on the Dinajpur Press Club and four local newspapers in retaliation for newspaper reports on "corruption, repression and maleficence" in the police force and direct administration.
In my view, it is entirely conceivable, in these circumstances, that the applicant would obtain police protection at one time and not another as he testified. The Board states that the applicant was unable to answer the question of why the applicant was unable to get any protection although his party was in power yet he stated that the police only protected the government.
It appears to me that the applicant's testimony on this issue is credible as he states that he was able to obtain police assistance in some instances but was unsuccessful in obtaining their help at other times. This does not seem implausible given the circumstances in Bangladesh at the time.
However, I do not believe that this fact was critical to the applicant's case nor was it central to the Board's determination that the applicant lacked credibility. The Board cited numerous factors in its reasons which caused it to find that the applicant was not credible and I have found these to be justified in light of the documentary evidence.
The applicant argues that to invoke subsection 69.1(9.1) every time the Board makes a finding of adverse credibility is to frustrate the intent of Parliament in enacting this provision.
I am of the view that the Board based its no credible basis finding primarily on the applicant's lack of credibility resulting from the numerous inconsistencies and implausibilities, as well as the vague nature of the applicant's testimony, and of the lack of any concrete evidence to support his fear of persecution.
The documentary evidence did not substantiate many of the allegations made by the claimant and the applicant was unable to provide any evidence to support his assertion that his personal situation in Bangladesh is such that he would face a serious possibility of persecution if he were to return.
The Board states in its reasons that the applicant claims he was harassed and beaten from 1990 to 1996 and yet he never attempted to leave the country. During this time, the applicant's party was in power and he was continually active in the BNP activities, specifically the JJD Mirpur Branch. When the BNP loses the general elections of 1996, the applicant immediately flees the country and claims refugee status.
In light of the documentary evidence, the Board found it inconceivable that he was harassed and beaten for years but never attempted to leave, and the moment his party loses power he flees the country fearing his opponents are now going to exact revenge upon him.
Having concluded that his credibility was lacking and that no documentary evidence existed to support the allegations of his personal situation in Bangladesh, the Board determined his claim had no credible basis in accordance with subsection 69.1(9.1) of the Act.
I have thoroughly reviewed the testimony of the applicant as well as the exhibits which the applicant submitted in support of his application and the documentary evidence produced by the respondent. I am satisfied that the Board was not unreasonable in concluding that the applicant has no credible basis for his claim.
[56] In the case at bar, the Board stated that it reviewed the applicants' written and oral testimonies and studied the documents presented by the counsel as well as the documentary evidence adduced by the RCO. It then noted various inconsistencies and discrepancies in the applicants' testimonies and concluded that the applicant lacked credibility in accordance with subsection 69.1(9.1) of the Immigration Act. In my view, the Board's conclusion are reasonable and supported by the evidence. I cannot find that the Board erred.
[57] As for the applicants' argument that the Board was required to give further reasons, in Torres Gomez v. M.C.I, [1999] F.C.J. No. 600 (F.C.T.D.) Pinard J. stated:
In his written Memorandum of Fact and Law, the applicant also relies on Mathiayabaranam v. M.E.I. (1995), 94 F.T.R. 262, where the Trial Division of this Court ruled that given the serious consequences of a no credible basis finding, the Board was obligated to provide the applicant with notice that the issue was being considered so as to have an opportunity to make submissions. As the respondent notes, that decision was overturned by the Appeal Division of this Court when it held that there is no right to receive any extra notice about the possibility of a finding of no credible basis. After having acknowledged this, counsel for the applicant argued for the first time that the Board erred in law "in failing to motivate its finding of no credible basis". This new argument is set aside on the ground that the Board's finding of no credible basis is supported by the same sufficient reasons given in the decision in support of its finding that the applicant is not a Convention refugee. The principle of this ground is consistent with the following comments made by Linden J.A., in Mathiayabaranam v. M.E.I. (1997), 221 N.R. 351, at page 354:
. . . a credible basis determination is inherent in the definition of Convention refugee. It does not place upon the claimant an evidentiary burden separate from or additional to the primary one imposed by the definition itself.
[58] I agree with Pinard J., that no further reasons are necessary when the Board's finding of no credible basis is supported by the same sufficient reasons given in the decision in support of its finding that the applicant is not a Convention refugee. In the case at bar, the Board gave sufficient reasons for its finding of no credible basis and no additional reasons were needed under subparagraph 69.1(9.1)(111) of the Immigration Act.
[59] Therefore, this application for judicial review is dismissed.
[60] Counsel for the applicant submitted this question for certification:
Is a simple finding that a refugee claimant is not a credible witness sufficient to trigger the application of subsection 69.1(9.1) of the Immigration Act?
[61] I am not convinced that this is a serious question of general importance, consequently, no question will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
May 25, 2001