Ottawa, Ontario, October 21, 2005
Present: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The Refugee Protection Division of the Immigration and Refugee Board (the tribunal) in its January 26, 2005 decision rejected the refugee claim of Muhammad Sayedul Islam (the applicant), a citizen of Bangladesh who left that country for Canada on May 17, 2002. The tribunal did so on the basis the applicant was not credible.
[2] His counsel argues the tribunal erred by making adverse credibility findings in a perverse and capricious manner on irrelevant considerations, or without regard to the totality of the evidence before it. In essence, as the basis for judicial review, counsel for the applicant invokes paragraph 18.1(4)(d) of the Federal Courts Act, which authorizes this Court to grant relief if it is satisfied the tribunal "based its decision on an erroneous finding of fact that it made in a perverse or a capricious manner or without regard to the material before it". This standard of review of credibility findings, which are findings of facts, has been held to be the equivalent of a patently unreasonable decision, which calls for a very high level of deference.
[3] The substance of the applicant's refugee claim taken from his Personal Information Form (PIF) is as follows:
1) In May 1996, he joined the Awami Jubo League as a general member in Ward 25. Throughout 1997 and 1998, he participated in many party activities.
2) In February 1999, he became a Youth Welfare Secretary for the Ward Committee.
3) In that capacity, he helped poor families who were victims of drug dealers and whose children were suffering from drug addiction. Either Bangladesh National Party (BNP) members or their supporters backed most of the drug dealers and suppliers.
4) In July 1999, he was assigned to a particular project, the Kamalapur Railway Slum Project (the slum project). Several times, party workers on the slum project were individually attacked and beaten by Kala Naser who was associated with the BNP. In September 2000, "15 to 20 BNP terrorists" attacked and set fire to houses in the slum project and several persons were injured.
5) In July 2001, the situation turned badly when the BNP formed a four party alliance. He and workers on the slum project were targeted for doing anti-Islamic work.
6) After the election in October 2001, when the BNP came to power, matters worsened even more.
7) At paragraph 12 of his PIF, he wrote as follows:
27 October 2001 Kala Naser and their armed group came to our project office and threatened us that we must not involve with Kamalapur Railway slum project, at one point they hit my friends and me. I went to the police but police didn't want to take any complaint against them. [emphasis mine]
8) On February 7, 2002, he was attacked by Kala Naser and his people. He escaped by running through a graveyard. He was too scared to return home and stayed at a friend's nearby house. The next day, he learned from his friend's brother that the previous night, Kala Naser and his group came to his house "with all of their anger they wanted to kill me on the spot".
9) He went into hiding and learned that on March 5, 2002, BNP persons came to the family home looking for his sister and threatening his father.
10) On March 9, 2002, Kala Naser and his armed group raided the family house, threatened his father again, ransacked the house stating that "they will continue to do that until they can kill me". He learned this from his father over the telephone.
11) His father tried to complain to the police about Kala Naser but the police would not hear of it.
12) It was on March 11, 2002 that he took a decision to leave the country. On March 30, 2002, "they bombed our house with many other terrorists, we continue to live in fear".
THE TRIBUNAL'S DECISION
[4] The tribunal's credibility findings were based on what it characterized as major discrepancies between his testimony before the tribunal and immigration documents. When confronted, the tribunal found his explanations unreasonable. The tribunal also found a number of his allegations were implausible. It gave the following examples:
1) The tribunal said he had testified his problems started on October 27, 2001. On that day, while attending a party meeting, he and his group were attacked by Kala Naser and "his goons" while they were working on the railway slum project. According to his testimony, there was a major explosion and he and others were taken to hospital. The tribunal wrote:
However, there is no mention of the explosion in the narrative; moreover, there is no mention of the fact that the claimant had to be hospitalised. This constitutes a major omission. Instead of mentioning that he was hospitalised for three days, as indicated in a medical report ..., he wrote that he had gone to the police. The way the sentence reads in the narrative indicates that he went to the police following the attack. He could not have gone to the police if he was in hospital. This undermines the claimant's credibility. Asked to explain this omission, the claimant testified that it was only when the doctor in Canada told him that his partial deafness was due to an explosion that he remembered the incident. This explanation makes no sense whatsoever. To start with, the doctor does not mention in his report that the partial deafness of his patient was due to an explosion. Furthermore, if the claimant's hearing was damaged following the said explosion, it is surprising that he did not do anything about it in Bangladesh, and that there is no mention of it in his narrative. He testified: "When I was writing the story, I never realised that the explosion had an effect." Though the tribunal does not dispute this medical report ... describing the claimant's hearing difficulties, it must be noted that the claimant did not display signs of hearing problems during his testimony. In the Immigration Officer interview notes, the claimant was asked about his health condition, whether physical or mental. He declared: "Yes, I think I am OK."
2) The tribunal asked him why he had not mentioned in his PIF that he had been hospitalized for three days. The tribunal records his answer and commented:
[...] "I did not (write about the hospital). I considered it first aid treatment. I did not realise it had a profound effect." It is clear at this stage that the claimant is improvising. The pictures he disclosed ... where he is seen in his hospital bed, covered with bandages, can hardly fit the description usually given to first aid treatment. Exhibit P-10, the medical report allegedly issued by a clinic, makes no mention of first aid. It does not specify what kind of injury the claimant sustained. It does not specify what treatment he received. As such this document has no probative value. The same goes for the pictures.
3) After mentioning the applicant alleged he was Welfare Secretary to his branch since 1999 and was in charge of the slum project and that according to his allegations, it was precisely his involvement in this project that provoked his persecution, the tribunal focussed on the immigration officer's interview notes of June 2003, where the applicant declared, referring to the Awami Jubo League, that he was a member only. The tribunal observed:
[...] The word "only" is here of particular interest. In his answer in Schedule 1, page 1 of 4, question 2, the claimant writes: "member". The question is specific. It deals with membership of associations or organisations and the activities or positions held in the said associations. It is therefore surprising that having had the opportunity on two occasions to declare that he was a welfare secretary, his alleged position in the Awami Jubo League, he failed to do so. This undermines his credibility to a large extent.
4) The tribunal indicated the applicant testified he had gone three times to the police to complain and on his last visit, which was on November 1, 2001, he had made a written statement. The tribunal noted:
[. . . ]Asked if he had a copy of that statement, he immediately backtracked and explained that the police refused to take his complaint and that there was no written statement to show. Asked why he had previously mentioned a written statement, he explained that there was confusion: "It is possible I made a mistake." The claimant is not credible. He improvises in order to repair his contradictions.
5) The tribunal said the applicant answered "no" to two key questions in the immigration officer's interview notes dated July 30, 2002. The tribunal reasoned in the following terms:
[...] Asked if he was wanted by the police or the military in any country, he answered "no." Asked if he had been arrested/detained by the police/military in any country, he answered "no." Asked why he had not mentioned his fear of the police in his answers, the claimant explained that he was not asked (by the Immigration Officer) to give detailed explanations. He thought that the officer was asking him if there was an arrest warrant against him: "Since there was not any (warrant), I did not (mention the police)." The claimant signed his Personal Information Form (PIF) on August 26, 2002. By that time he had learned from his father that the police were looking for him (paragraph 19). However, it is not this explanation that he gave to justify his earlier answers when questioned about this in the morning session of the hearing. It is only in the afternoon session that, examined by his lawyer, he came up with this new explanation. The tribunal concludes that during the month which followed the interview, the claimant found time to embellish his story by adding the police element so that section 97(1) of the Act could come into play. As for what the father allegedly said to the claimant, he is not an independent source. The father is the person who financed the trip of his children to Canada by paying a smuggler. Furthermore, we have no evidence that the father was visited by the police apart from the claimant's testimony, and he is not a credible witness.
6) The tribunal then referred to a letter from the applicant's lawyer (Exhibit P-8) and to the two sentences of the English translation of that letter. The tribunal wrote:
[...] The Tribunal is aware that it is dealing with a translation; nevertheless, this ill-written letter demonstrates that whoever wrote it was paid by the claimant's father. It cannot be given probative value.
[5] The tribunal concluded the applicant "never experienced the persecution alleged in his PIF and in testimony, and that the story presented to the Board is a complete fabrication designed to obtain resident status in Canada without going through the proper channels. He is .... but simply an immigrant in disguise". The tribunal wrote:
ANALYSIS
[6] As noted, it is settled law that credibility findings are findings of fact which are to be assessed on the basis of paragraph 18.1(4)(d) of the Federal Courts Act (the Act), a standard of review equivalent to patent unreasonableness. This paragraph reads:
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
. . .
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
[7] Further, it is also settled law that as a trier of fact, the tribunal is entitled to make reasonable findings regarding the credibility of a claimant's story based on implausibilities, common sense and rationality (see Adams v. Canada (Minister of Citizenship and Immigration), 2003 FTC 386).
[8] In Voice Construction Ltd. v. Construction and General Workers´ Union, Local 92, [2004] S.C.C. 23, Justice Major stated at paragraph 18 that "a definition of patently unreasonable is difficult, but it may be said that the result must almost border on the absurd".
[9] The Federal Court of Appeal in Rohm and Haas CanadaLtd. v. Canada(Anti-Dumping Tribunal), [1978] F.C.J. No. 522, set out some guidance to the interpretation of paragraph 18.1(4)(d) of the Act.
[10] Applying those principles, the applicant, in this case, must establish:
(1) that the credibility findings which he attacks were erroneous;
(2) the erroneous credibility findings have been made:
(a) in a perverse or capricious manner, or
(b) without regard to the material before the tribunal;
(3) the decision attacked must be based on the erroneous findings of fact.
[11] I am also sensitive to the often repeated admonition by the Supreme Court of Canada that reviewing courts are not to re-weigh the evidence before the tribunal in order to come to different conclusions.
[12] After reading the transcript of the proceedings before the tribunal, I have come to the conclusion that this judicial review application must be dismissed.
[13] As stated, the tribunal made a number of adverse credibility findings.
[14] The first such finding was characterized by the tribunal as a major omission (two in fact) of not mentioning in his PIF that during the October 27, 2001 attack, Kala Naser's group threw a bomb which exploded loudly and that after his attack he was hospitalized for three days.
[15] The transcript shows those omissions are supported by the evidence. As such, the identification of those omissions was not erroneous. Furthermore, it was reasonably open, based on the evidence which the tribunal took into account, for the tribunal to discount his explanation.
[16] The same can be said of his failure to identify during his interview with the immigration officer that he was not only a simple member of his Ward Committee but was the secretary of its Welfare Committee and de facto on the Executive Committee of the party's Ward. The discrepancy was factually grounded and the rejection by the tribunal of his explanation not unreasonable. Counsel for the applicant conceded the point.
[17] Counsel for the applicant did not challenge the reasonableness of the tribunal's third credibility finding. That credibility finding concerned his fear of the police in Bangladesh. The contrast was between his testimony before the tribunal and his answers "No" during his interview with the immigration officer on July 30, 2002, to the questions "Do the police or the military in any country want the claimant and has the claimant been arrested/detained by the police/military in any country".
[18] The tribunal gave little probative value to a letter the applicant's father received from a lawyer whom his father had mandated to determine whether there was any case against the applicant whom the lawyer described as his client. Counsel for the applicant tried to impeach the tribunal's finding by pointing to the fact the tribunal characterized the letter as "this ill-written letter". Counsel for the applicant asked how could the tribunal make such a finding because the letter had been written in Bangladeshi. I find no substance to this argument. The tribunal recognized it was a translation and by using those words is providing its overall characterization to that letter.
[19] The final adverse credibility finding made by the tribunal concerned the tribunal's finding the applicant had with him a written statement when he went to the police to make his complaint on November 1, 2000. A review of the transcript shows the tribunal made such a finding. However, the tribunal failed to mention that at page 185 of the certified record, the interpreter had indicated it was very possible she made the mistake in interpretation. For the purposes of this judicial review application, I am prepared to set aside this single credibility finding.
[20] However, in my view, setting aside this one adverse credibility finding does not justify setting aside the decision because the tribunal's decision on credibility is sound in respect of the several other credibility findings which led the tribunal not to believe the applicant's story.
O R D E R
For all of these reasons, this judicial review application is dismissed. No certified question was proposed.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1252-05
STYLE OF CAUSE:
MUHAMMAD SAYEDUL ISLAM v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: September 13, 2005
REASONS FOR JUDGMENT: THE HONOURABLE MR. JUSTICE LEMIEUX
APPEARANCES:
| Me Pia Zambelli Telephone No.: (514) 274-9393 6855, Ave. De L'Épée, Fax No.: (514) 274-5614 Suite 203 Montréal, Québec H3N 2C7
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| Me IAN DEMERS Telephone No.: (514) 283-5115 DEPARTEMENT OF JUSTICE Fax No.: (514) 496-7876 Guy Favreau COMPLEX 200, Boul. René Lévesque ouest East Tower , 9th floor H2Z 1X4 |
SOLICITORS OF RECORD:
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Me Pia Zambelli |
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John H. Sims, Q.C. Deputy Attorney General of Canada |