Date: 20000826
Docket: IMM-4821-99
BETWEEN:
MIRMAHMUD Hasan
SYEDA Monirunnessa
KANIZ Murshida
MIR Quaif Hasan
SYEDA Marzana Mahi
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] Mirmahmud Hasan is a citizen of Bangladesh and is a public figure there as a result of his participation in his country's 1971 war of independence and his role as a commander in the Bangladesh Freedom Fighters Association ("BFFA") which he joined in 1974.
[2] He fled Bangladesh with his family on the 10th of September, 1996 after the Awami League won the general elections in June of that year, an election in which the Applicant made speeches for the Bangladesh Nationalist Party (BNP) and against the successful party forming the government, the Awami League.
[3] The Applicant made a refugee claim advancing a well-founded fear of persecution at the hands of the Awami League. He claimed that, immediately after the June 12, 1996 general elections, his house was attacked and ransacked on June 26 by Awami League goons in retaliation for having publicly supported the BNP. He and his family managed to escape, taking refuge at a relative's house. He claimed he complained to the police but they did not arrest anyone. He claimed the police raided his house in July 1996 and intended to arrest him because his name was on their list of terrorists.
[4] On September 14, 1999, the Refugee Division of the Immigration and Refugee Board (the Tribunal) determined he, as a principal Applicant, and his family were not Convention refugees. This application for judicial review challenges the Tribunal's decision.
THE APPLICANTS' CHALLENGE
[5] Counsel for the Applicants focussed his arguments on three points.
[6] First, he said the Tribunal made a fatal error when it failed to analyse and make mention of three pieces of documentary evidence introduced by the principal Applicant which were specific and personal to his claim and which contradicted the conclusion reached by the Tribunal, namely, that the claimant did not bring sufficient proof to sustain his allegations that he had a well-founded fear of persecution because of his political opinions and, as a result, would have less than a mere possibility of persecution should he return to Bangladesh.
[7] Second, counsel for the Applicants argued the Tribunal ignored or misconstrued the evidence. Where the Tribunal missed the mark, counsel for the Applicants argued, was its ignoring the fundamental basis why the Awami League would seek revenge and persecute him after the 1996 June general elections.
[8] The Applicants said the uncontradicted evidence was to the effect that the Awami League wanted the Freedom Fighters to join its ranks and the principal Applicant always opposed the Bangladesh Freedom Fighters Association supporting a political party. In addition, with his high public profile which the Tribunal recognized, he made public speeches during the election opposing and criticising the Awami League and asking the electorate to vote against it. He also urged the Freedom Fighters not to work for the Awami League.
[9] Third, counsel for the Applicants argued the Tribunal asked itself the wrong question. The question was not whether the Freedom Fighters enjoyed a special relationship with the government and the Awami League but whether there was substantive evidence to reasonably lead the Tribunal to conclude that the Awami League would not persecute the principal Applicant simply because he had been a Freedom Fighter.
[10] Counsel for the Applicants argued the Tribunal ignored or misconstrued the evidence to the effect that due to his popularity and his stance, the Awami League was not able to bring his District BFFA under its control but since the principal Applicant left his country they have taken control of the District BFFA.
THE RESPONDENT'S COUNTER
[11] Counsel for the Respondent's baseline argument started with the proposition that, in this case, the Tribunal made an adverse finding of credibility i.e. did not believe the principal Applicant's story because it found that story implausible for two reasons: (1) it found that his political involvement up to the general elections was limited and his activities to support the BNP candidate in June 1996 were such that his political activities would not have put his life in danger and (2) the special relationship between the Freedom Fighters and the Awami League.
[12] On the first point of his not being a political activist, counsel for the Respondent pointed to the following three paragraphs at page 4 of the Tribunal's decision:
| The claimant alleges he was an active member of the BNP. In his story, however, he describes very few political activities other than certain events that are of general knowledge and where many members participated publicly. The panel is of the opinion that, given the paucity of information concerning the claimant's alleged political activities up to the 1996 general elections, the claimant was not a political figure and was better known as a Freedom Fighter. |
| The claimant alleges that he became an official member of the BNP in January, 1996. At that time, he began working with his local candidate for the up-coming elections on June 12. The claimant writes in his story that from the platform of the Freedom Fighters he addressed the people asking them not to vote for the Jamaat-E- Islami or the Awami League. Because of this, after the elections, he alleges he became the target of the Awami League. |
| At the hearing, the claimant stated that every party, except the Jamaat, had Freedom Fighters, although in the Association itself they did not represent any party. The panel believes this to be true of the claimant also. It is clear that he was first and foremost a Freedom Fighter and not a political activist. The panel does not believe that his brief membership with the BNP and his activities to support the BNP candidate in June 1996 were such that his alleged political activities would have put his life in danger. [emphasis mine] |
[13] Counsel for the Respondent argued the transcript clearly demonstrated what the Tribunal wanted from the principal Applicant was clarification of the basis for his fear of persecution and the reason behind the alleged persecution. Fundamentally, the Tribunal was not satisfied he discharged his onus in this regard.
[14] As for the second prong to its implausibility finding, counsel for the Respondent pointed to the following paragraphs of the Tribunal's decision on the special relationship between the government and the Freedom Fighters. Those paragraphs read:
| Furthermore, several articles were adduced in A-10 that support the claimant's information concerning the BFFA and the AL (Awami League). In an interview with the chairman of the FFs he says that with the help of the AL government, the Association will be able to computerize the list of Freedom Fighters. The FFs who number over 100,000, receive government help in terms of State honorarium, medical allowances, job quotas for their children and financial help from a Freedom Fighter's welfare trust fund. The panel does not believe the claimant to be credible when he alleges that he is persecuted by the AL. |
| Finally, the panel noted that the claimant left his country at the very moment it was preparing to celebrate the Liberation War Silver Jubilee. Several articles adduced in A-10 describe a climate of collaboration and goodwill on the part of all the political parties and hundreds of organizations to honour the heros of Independence. Asked to explain how a hero as himself could be put on a terrorist list by police, the claimant answered that the police and the law were influenced by the government in power. The panel considers this answer to be convenient but implausible considering the above-mentioned documents on FFs and the good relations maintained with the government. |
| The panel does not believe the claimant to be credible when he alleges he was attacked and his house was vandalized on June 26, 1996 by AL goons. The panel finds it implausible that the claimant would be the target of the AL and the police and that his life would be in danger while at the same time the Chairman of his organization, Mr. Abdula Ahad Chowdhury, in reference to the Awami League, declares in the press "this is a government of Freedom Fighters". On the whole, the claimant's story is not credible. [emphasis mine] |
ANALYSIS AND CONCLUSIONS
| (a) First Ground -- the Specific and Personal Documents -- |
| the Failure to Comment |
[15] As noted, the Applicants argue a fatal error on the part of the Tribunal in failing to acknowledge the specific and personal documentary evidence put forward by the principal Applicant, the failure of the Tribunal to analyse that documentation in relation to the claim and, because the documentary evidence contradicted the conclusion reached by the Tribunal, the higher obligation on the Tribunal to say why it discarded this evidence or preferred other evidence.
[16] The documentary evidence by the principal Applicant consisted of: (1) a letter from the General Secretary of the BNP Satkhira District Unit dated November 11, 1997; (2) a letter dated November 9, 1997 from the Commander of the Satkhira Unit of the BFFA; and (3) the November 12, 1997 letter from the Applicants' lawyer.
[17] Generally, all of these letters are to the same effect. They recite the principal Applicant's membership in the BNP, his prominence as a freedom fighter, the attacks on his house by the Awami League goons because of his political participation in the 1996 elections and confirm the police are seeking to arrest him. In particular, his legal representative in Bangladesh said this:
| Being appointed to act as his attorney, I had contacted the police (authority). The police expressed its unwillingness to provide anything regarding this matter. Again I had contacted. The police reported to me that Mr. Hasan is a branded terrorist and that they have the name of Mr. Hasan in the terrorist's list prepared by them. |
| At present the police is striving to arrest Mr. Hasan under section 54 of the Criminal Code. |
[18] In support of the Applicants' position the Tribunal made a fatal error in the way it treated this evidence, their counsel cited two recent cases rendered by my colleagues Justices Denault and McGillis.
[19] In Khawaja v. The Minister of Citizenship and Immigration, Docket: IMM-5385-98, Mr. Justice Denault identified the specific documentary evidence involved in that case, namely, letters setting out the Applicant's social commitment regarding the oppression of women, his membership in the Jatiya Party, in which he was even elected treasurer of one of the divisions and finally a letter from his counsel in Bangladesh describing his problems with the police (arrests, torture and bribes).
[20] Mr. Justice Denault then identified one of the errors which warranted the Court's intervention. He said this at paragraph 9 of his decision:
| The panel further erred in concluding that the principal claimant was not credible as to his political commitment to the Jatiya Party and the fact that he was sought by the police when independent evidence relating specifically to the plaintiff corroborated his testimony on this point. The panel did not say a word about this evidence, which not only corroborated important aspects of his claim but at the very least supported the credibility of his testimony. (citations omitted) |
[21] The second case brought to my attention was Madam Justice McGillis' February 17, 1999 decision in Numbi v. The Minister of Citizenship and Immigration, Docket: IMM-1378-98. In that case what was before Madam Justice McGillis was specific and personal documentary evidence that corroborated key elements of a claim and, in particular, a newspaper article indicating that the applicant had been brutalized for his opposition activities and a letter from the political party UPDS confirming that the applicant had been brutalized in a demonstration, that he was sought by the police for his political involvement and that his life was in danger. Madam Justice McGillis noted that the Board made no reference in its analysis to those or any other documents tendered by the applicant in support of his claim. She concluded at paragraph 4 of her decision:
| I agree with the submissions of counsel for the applicant. In my opinion, the failure of the Board to address in its analysis specific and relevant documentary evidence which appeared to corroborate important aspects of the applicant's claim constitutes a reviewable error. [See Bains v. Canada (Minister of Employment and Immigration) (1993), 20 Imm.L.R. (2d) 296, 300 (F.C.T.D.).] |
[22] Counsel for the Respondent acknowledged the Tribunal made no reference and conducted no analysis on two of the three letters. He said the panel considered the letter from the Satkhira District Chairman but put it aside as being self serving and shedding no light on the claimant's activities with the BFFA after 1990.
[23] Counsel for the Respondent relies on Mr. Justice Rouleau's decision in Songue v. Minister of Employment and Immigration (Docket IMM-3391-95, July 26, 1996) which relied on the Federal Court of Appeal's decision in Sheikh v. The Minister of Employment and Immigration, [1990] 3 F.C. 238 for the proposition that the Tribunal need not expressly mention that it is rejecting an element of documentary evidence if the Tribunal does not believe the circumstances giving rise to that element of proof.
[24] As I see it, the Khawaja and Numbi cases are on all fours with the circumstances before me. There was independent documentary evidence advanced by the claimant, it was corroborative of his claim, it was important evidence particularly on the aspect the police were looking to arrest him on a falsified claim and this evidence was not acknowledged, analysed or explained away. The Tribunal committed a reviewable error in this respect.
[25] I do not think that either Songue, supra, or Sheikh, supra, upon which it was based have any application. My reading of these two cases is that the principle of discarding all evidence from the Applicant is premised on a general finding of a lack of credibility on the part of the applicant i.e. he was not a trustworthy witness because his testimony was, for example, contradicted by other evidence or internally inconsistent. In the case before me, the Tribunal did not find the Applicant untrustworthy i.e. unbelievable as a person. The Tribunal based its decision on what it believed were implausibilities.
| (b) Grounds 23 and 3 -- Missing the mark and the wrong question -- The implausibilities |
[26] The leading case dealing with implausibilities is that of the Federal Court of Appeal in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 where Décary J.A. said this at paragraph 4:
| 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 could not have reasonably been drawn. In this case, the appellant has not discharged this burden. |
[27] The Court will not interfere with implausibility findings (which are findings of fact) so long as the inferences drawn by the Tribunal are not unreasonable and are based on the evidence.
[28] In Toronto (City) Board of Education v. Ontario Secondary School Teachers' Federation, District 15, [1997] 1 S.C.R. 487, Mr. Justice Cory said this at page 508 in a case involving judicial review of an arbitrator's decision:
| When a court is reviewing a Tribunal's findings of fact or the inferences made on the basis of the evidence it can only intervene "where the evidence, viewed reasonably, is incapable of supporting a Tribunal's finding of fact". |
[29] The major finding of implausibility made by the Tribunal and, in my view, the main reason for the Tribunal not believing the principal Applicant's story, rests with the fact that he was a well-known Freedom Fighter, of which there were approximately 100,000 in the country and the Freedom Fighters enjoyed a special relationship with the government and various political parties including the Awami League but excluding the Jamaat-E-Islami party who opposed the independence movement in 1971.
[30] The Tribunal cited numerous articles adduced by the principal Applicant which indicated that he was surrounded in his BFFA activities by members who belonged to various political parties as well as different walks of life. The Tribunal said at various reunions of the BFFA, there were members of the BNP, the Awami League, many professionals, advocates, engineers and university professors, except members from Jamaat-E-Islami.
[31] The Tribunal, in its decision, cites one instance where the counsel of the BFFA (of which the principal Applicant was a member), held a reception in a local Chinese restaurant to bid farewell to the ongoing Commanding Officer of the 35th Rifle Battalion, and to welcome the new Commanding Officer, a Lieutenant Colonel. The Tribunal indicated the invited guests were the Chief of Police, the Assistant Chief of Police and the District Judge.
[32] In its review of the evidence, the Tribunal said the principal Applicant acknowledged the Freedom Fighters were helped by the Awami League government but that this help was given to the well-known heroes and not the ordinary Freedom Fighters.
[33] The Tribunal noted the articles adduced by the principal Applicant indicated the Awami League government was assisting the BFFA to computerize the list of the Freedom Fighters. The Tribunal indicated Freedom Fighters received government help in terms of state honorarium, medical allowances, job quotas for their children and financial help from the Freedom Fighters' Welfare Trust Fund. Finally, the Tribunal makes special mention of the fact the principal Applicant left his country at the very moment Bangladesh was preparing to celebrate the Liberation War Silver Jubilee and that the articles described the climate of collaboration and goodwill on the part of all political parties and hundreds of organizations to honour the heroes of the independence.
[34] From this evidence, the Tribunal concluded, in several places in its decision, that the claimant would not have suffered discrimination on the part of the government or any of its organizations, that he would not be persecuted by the Awami League because he has good contacts with their members in his activities with the BFAA, that because the government supports the Freedom Fighters, he will not be persecuted by the Awami League and it was implausible that he would ever be put on a terrorist list by the police because of the Freedom Fighters' good relations with the government.
[35] Clearly, the Tribunal was mesmerized by the Applicant's status as a Freedom Fighter, a hero of the nation, a commander in the BFFA and concluded that his stature immunized him from any possible persecution by the AL.
[36] The presiding member of the Tribunal, when he announced the mid-morning break, turned to the principal Applicant and said this:
| Your story is so fascinating that we don't see the time go by. |
[37] After a review of the entire record, I am convinced the Tribunal could have only come to its immunization conclusion by ignoring or misconstruing the evidence before it. I cite the following instances: (1) the failure by the Tribunal to consider the principal Applicant's evidence that he had several clashes, prior to 1996, with the Awami League in the context of his opposition to their takeover of the BFFA so that they could use it for their own Awami League political purposes; (2) his public stance, in 1991, against the Awami League in the elections at that time; (3) failure to analyse the fact that in 1996, the principal Applicant publicly joined the BNP, a political party, opposed to the Awami League, that in January of that year, he made a speech attacking the Awami League and asked the public to vote for the BNP; he was attacked by Awami League goons after giving the speech; (4) discounted the fact that he, during the June 1996 elections, in his speeches, he openly opposed the Awami League; (5) ignored evidence of what happened to other Freedom Fighters similarly situated who had opposed the Awami League; (6) failed to consider U.S. State Department Country Reports on Bangladesh which indicate that after the 1996 elections these were arrests of political opponents.
[38] On the basis of the evidence which was ignored, I have no hesitation in coming to the conclusion that the Tribunal's implausibility findings were not reasonable and requires the Court's intervention (see Huerta v. Minister of Employment and Immigration, 157 N.R. 225 and Tagari v. The Minister of Employment and Immigration, A-353-91, June 20, 1994 (F.C.A.) where Hugessen J.A. said this:
| The Board's unfavourable assessment of the appellant's credibility was based entirely on its view that certain parts of his testimony were implausible. Given the documentary evidence as to the state of political activity in Burma and of government repression thereof at the time covered by the appellant's testimony, we can only say that there does not appear to us to be any rational basis in the evidence for considering any of the implausibilities cited by the Board as being inherently improbable. |
DISPOSITION
[39] For all of these reasons, this judicial review application is allowed, the decision of the Tribunal is set aside and the applicants' claim is returned to a differently constituted panel for reconsideration.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
SEPTEMBER 26, 2000