Ottawa, Ontario, June 21, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Sadat Jamil, a citizen of Bangladesh, challenges the September 30, 2005 decision of the Refugee Protection Division (the tribunal) rejecting his claim for protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (the Act). The tribunal found the applicant not to be credible. It stated "Mr. Jamil is a bogus claimant who makes a mockery of the refugee system. Claims of this kind tend to discredit the Board."
[2] The sole issue in this judicial review proceeding is whether the credibility findings made by the tribunal, being findings of fact, constituted a decision made within the terms of section 18.1(4)(d) of the Federal Courts Act,1998 i.e. a decision made on a finding of fact arrived at in a perverse or capricious manner or without regard for the material before it, a standard equivalent to the standard of review of patent unreasonableness meaning clear irrationality, see Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247 at para 52.
[3] The tribunal described the applicant's claim in the following terms:
The claimant alleges that since his school days he has been a supporter of the Awami League. He became a member of the Student League in 1997. For his noticeable achievements, he was nominated Publicity Secretary in 1998, and in 2001, he was elected General Secretary of the Student League. In September 2001, he was assaulted and threatened in the street by a certain Monir Hajee, a BNP goon.
The claimant finished his studies a year later in 2002, and he joined the Juba League the youth wing of the Awami League.
Due to his continuous political activities, he was arrested by the police and was attacked several times by Monir Hajee and his gang. Fearing for his life, he decided to leave Bangladesh. In 2004, with a smuggler's help, he found his way to Canada.
[4] The tribunal did not believe the applicant's story finding him non-credible stating "the tribunal was faced with major contradictions" and "the core of his claim is based upon the claimant's political activities in the student branch of the Awami League and later on with the youth branch of that same party."
[5] The tribunal drew the following contradictions
1. Contradictions when holding the position of Publicity Secretary
· His testimony: June 1998 to July 1999;
· His PIF: June 1998 when he was elected;
· His Schedule I: December 1997 to June 1999.
2. Contradictions when he held the position of Assistant General Secretary of the Student League of his unit:
· His testimony: September 2001 to September 2002;
· His PIF: elected September 2001
· His Schedule I: October 2000 to October 2002.
3. Contradictions when he held the position of General Secretary of his unit:
· His PIF: He joined the Juba League in November 2002 and became its General Secretary in July 2003 holding that position until he left the country in November 2004;
· His Schedule I: joined the Juba league in November 2002 and remained General Secretary until August 2004.
[6] The tribunal stated "all these contradictions, for which the Plaintiff could not provide satisfactory answers, indicate to the tribunal that the claimant was not politically active, contrary to what he alleges."
[7] After citing some decisions of the Federal Court stating the tribunal is entitled to rely on contradictions between point of entry notes (POE) and the later testimony the tribunal wrote "the initial declarations of an asylum-seeker are of greater importance, since they take place before he had the opportunity to fabricate a story to support his claim. Explanations as to the stress or the misunderstanding of questions in immigration forms are not enough to justify major and fundamental discrepancies, as it is the case here."
[8] The tribunal also focused on the applicant's testimony concerning his detention by the police from April 29, 2004 until May 2, 2004 with other Awami League members as they attempted to join a rally in Dhaka. The tribunal had four exhibits: P-11, P-12 and P-15 which are letters sent in 2005 by the President of the Juba League, the President of the Awami League, Keraniganj Unit, and the President of the Student League concerning the applicant's problems and P-14, a letter originating from a lawyer in Bangladesh who had been asked by the applicant's father to contact the police to investigate why the police were continuing looking for the applicant.
[9] The tribunal said in those letters, there is no reference to a "mass arrest" of Awami League members going to the rally in Dhaka. Moreover, the Awami League letters make no reference to the detention of the applicant and neither does the lawyer's letter.
[10] On this point, the tribunal concluded:
"Considering that the said detention is a major element of the past persecution and also justifies the fear of future persecution by the police, it is surprising that it is not mentioned in the above documents disclosed by the Plaintiff. We may add that these letters were obtained by the claimant when he was already in Canadathat they were written a few weeks before the hearing and that they are based on the claimant's narrative. The Federal Court has ruled in Hamid that when a claimant is not credible, the Board may not give probative value to the documents he disclosed to support his story. This is the case here. Furthermore, the claimant travelled with a false passport, which proves that he was able to obtain fraudulent documents."[Emphasis mine]
[11] The tribunal described another facet of the applicant's testimony regarding his arrest in April, 2004. The applicant was asked if before August 27, 2004 he had any problems with the authorities. At first the applicant answered he never had any problem with the police. The tribunal noted "it is only after the Presiding Member repeated the question that the claimant realised he was in trouble. He modified his testimony and justified his previous answer by explaining that before August 27, 2004 he had been arrested by the police, but they had not come to his house. For the above reasons, the tribunal concludes that the claimant was not arrested by the police, contrary to his allegations."
[12] The tribunal mentioned the applicant was asked why was it he decided to stop his political activities and go into hiding on August 25, 2004 and not before. According to the tribunal, the applicant explained it was because during this incident for the first time Monir Hajee and the BNP goons threatened to kill him. The tribunal concluded "this explanation is hardly reasonable since, according to his story he was attacked several times before, threatened and injured. He was also detained in April 2004. The claimant explained the previous incidents were not serious enough for him to stop his political activities. This explanation makes little sense."
[13] The tribunal touched upon a final point indicating it was only in 2005 when the applicant was already in Canada his father decided to retain the services of a lawyer in Bangladesh. The tribunal found the applicant was unable to explain why his father required the help of a lawyer so late, as the police had allegedly been looking for him since 2004. He could not furnish a reasonable explanation on this issue. As indicated above, the lawyer's letter is clearly designed to help the claimant in Canada-"that is if such a lawyer exists."
[14] After making its comment the applicant was a bogus claimant the tribunal discussed his itinerary and the fact the applicant travelled to Canada on a fraudulent British passport provided by a smuggler and could not provide the tribunal with copies of his airline ticket or boarding pass. The tribunal observed: "It must be noted that when a claimant enters Canada illegally, and cannot provide any proof of his itinerary by having destroyed his travel documents or given them back to the smuggler, the Board has no way of knowing where he came from, when and for how long he has been there, what route he took or how long he remained in Canada before claiming protection. This is a serious issue. The Federal Court has ruled in Elazi that this was not acceptable. Hiding the truth about his travel undermines the claimant's credibility."
Analysis
[15] Both counsel agree on the governing standard of review since credibility findings are findings of fact which draw the most deference from the Court.
[16] Section 18.1(4)(d) enables the Court to set aside a tribunal decision where the decision is based on an erroneous finding of fact it made in a perverse or capricious manner or without regard for the material before it which is a standard of review analogous to patent unreasonableness.
[17] The approach to be taken by an applications judge reviewing findings of fact of an administrative tribunal such as the Refugee Protection Division has been extensively commented upon. I refer to some well-known cases.
[18] The first one is the Federal Court of Appeal's decision in Aguebor v. (Canada) The Minister of Employment and Immigration (1993), 160 N.R. 315 at paragraph 4 where Justice Décary expresses himself as follows:
¶ 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 Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[19] The second case is the Supreme Court of Canada's decision in Canadian Union of Public Employees, Local 301 v. Montreal (City) [1997] 1 S.C.R.793 at paragraph 85 where Justice L'Heureux-Dubé writes the following:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
[20] I should also mention the Federal Court of Appeal's decision in Feng v. Minister of Employment and Immigration, A-1194-92, July 20, 1994 where it wrote:
"In our view these reasons of the Board establish the kind of internal contradictions, inconsistencies and evasions which are the heartland of the discretion of triers of fact."
[21] Counsel for the applicant advanced a number of reasons for setting aside the tribunal's decision:
1. She argues the tribunal misread the evidence when it drew contradictions between the applicant's testimony, his PIF and his Schedule I of the POE. That error principally stemmed from misreading the applicant's written answers in Schedule I of the POE which focused on the start date of his becoming a member of the Awami League organizations he belonged to and not on when he acceded to a number of positions within those organizations. She specifically cited the December 1997 date of his joining the Student League as an example.
2. She made the same point with respect to the apparent contradiction on when he first held the position of Assistant General Secretary of the Student League (October 2000 in his POE contrasted with September 2001 in his testimony). His explanation is at Certified Tribunal Record (CTR) page 182 where he testified that in October 2000 he was an ordinary member without holding any position because he was not studying at that time but continued his studies in September 2001 when he began pursuing his Bachelor of Commerce Degree.
3. She characterized the conflict between his testimony as to when he ceased to occupy the position of General Secretary of his unit in the Juba League (August 2004 versus November 2004) as a minor technical point because of the explanation he gave for making the mistake in the POE notes and that, in any event, this point was of no consequence because he was in hiding and planning to leave and when he wrote it he was out of the country.
4. She agreed with the fact exhibits P-11 and P-12 from the Awami League did not mention any mass arrests on April 29, 2004 nor did they mention his detention by the police from April 29, 2004 to May 2, 2004. She argued, however, that this one detention was of minor relevance since the essence of the applicant's claim focused on the threats and attacks made against him by BNP goons of the rival political party who were sending the police after the applicant which those letters confirmed. She said the applicant's claim is not about past persecution but his fear of what will happen to him in the future should he be forced to return to Bangladesh. In any event, these exhibits were third party letters and the applicant explained he did not know why his arrest was not mentioned in them.
5. She conceded there was a contradiction in the applicant's testimony when he answered that he had not experienced any problems with the police before August 27, 2004. She argues, however, he had provided an explanation which the tribunal did not properly assess.
6. The tribunal rejected his explanation why he decided to flee Bangladesh only after the August 25, 2004 incident. The explanation he gave to the tribunal was that the August 24/25, 2004 incident with Monir Hajee was very serious since he for the first time threatened to kill the applicant. Counsel for the applicant argues his rejection was unreasonable since the tribunal disregarded the nature of political action in Bangladesh and the applicant's overall testimony on the point.
7. Finally, counsel for the applicant pointed to another explanation which she argues was unreasonably rejected. The tribunal concluded the applicant was unable to explain why his father required the help of a lawyer so late since the police had allegedly been looking for him since August 2004. The tribunal concluded he could not furnish a reasonable explanation on the issue. Counsel argues the tribunal misread the evidentiary record since the point made by the applicant in his testimony was that he wanted to know and was trying to find out why the police were still looking for him. He wanted to know this because he had committed no crime. His lawyer's letter confirms the police had laid no charges against the applicant nor was there an outstanding warrant of arrest. His lawyer did write "Per the order of Minister Aman Ullah Aman, they want to question Sadat Jamil" a detention which is possible under the Special Powers Act.
[22] I should note the evidence is Mr. Aman won election in the constituency the applicant allegedly engaged in political activity and that this person is linked to Monir Hajee. In his PIF, the applicant describes him as Aman's goon.
[23] Notwithstanding the high degree on deference which must be accorded to the credibility findings of the tribunal, after reflecting upon the tribunal's decision, the transcript of evidence and the arguments of counsel, I have come to the conclusion this judicial review application must be allowed because no amount of curial deference can justify letting the tribunal's decision stand.
[24] There is a well-recognized line of cases from the Federal Court of Appeal and this Court which has conveniently been summarized by Justice Martineau in R.K.L v. Canada (Minister of Citizenship and Immigration) 2003 FCT 116 that a Refugee Board must not be zealous to find an applicant not to be credible and "must not be over-vigilant in its microscopic examination of the evidence of persons who testify through interpreters and tell tales of horror in whose objective reality there is reason to believe." See the Federal Court of Appeal's decisions in Attakora v. Canada(Minister of Employment and Immigration) (1989) 99 N.R. 168, along with Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989) 98 N.R. 312 and Frimpong v. (CanadaMinister of Employment and Immigration) (1989) 99 N.R. 168.
[25] These cases as applied by the Federal Court of Appeal itself and by this Court proscribe credibility findings arrived at by, for example:
§ Findings for which there was no evidence;
§ Findings of the tribunal based on conjecture, resulting in unjustified and unsupported inferences regarding the circumstances leading to an application for refugee status;
§ Inconsistencies drawn between POE notes and an applicant's testimony or the applicant's PIF where a tribunal dwells on details and not on the substance of the claim and leads to misconstruction of the evidence. Any such inconsistencies should be major and not minor and sufficient by itself to call into question the applicant's credibility. (See Mushtaq v. Canada(Minister of Citizenship and Immigration) 2003 FC 1066; and
§ The tribunal must be reasonable in rejecting an applicant's explanation when confronted with a contradiction and must not be quick to apply North American logic and reasoning to a claimant's behaviour, (see R.K.L., supra, at para 12);
§ The tribunal must assess the applicant's claim against the totality of the evidence.
[26] The overall impression I have of the tribunal's decision is that it was impermissibly overzealous in seeking to find the applicant not credible leading it to fail to consider the substance of his claim which was his fear of returning to Bangladesh because of the death threat he had received from political opponents of the Awami League in his district which is headed by an elected representative of the BNP who was also apparently a Cabinet Minister and was supported in his endeavours by his close associate Monir Hajee with the collaboration of the police who were looking for him.
[27] I find this zeal led the tribunal to demean the applicant's explanations.
[28] I find the tribunal's zeal led it not to consider or weigh material evidence and pushed it to reach unjustifiable conclusions not supported by the evidence, for example:
1. The tribunal's finding the contradictions were so major and fundamental to justify finding that the applicant was not politically active;
2. The explanation he gave for not fleeing the country or quitting politics before August 2004, after previous incidents where he was attacked, threatened and injured which cause the tribunal to say his explanation made little sense.
[29] As to terms of the contradictions between his POE, PIF and testimony, the basis for drawing many of these contradictions stemmed from the fact that in his POE, in respect to each position in each of the three organizations between relevant dates and each position, the applicant had written, for example, "member/Publicity Secretary" as the start date.
[30] The tribunal took this to mean the applicant had held a position, such as Publicity Secretary, when he first joined the Student League in December 1997.
[31] The tribunal failed to take into account the applicant's testimony that what he had written in his PIF and what the documentary evidenced showed (Exhibits P-12 and P-15) is he first became an ordinary member in those organizations and sometime later was nominated or elected to the positions he described. As such, there were no contradictions.
[32] Two apparent contradictions stand. First, when he ceased holding the position of Publicity Secretary in 1999 (June or July 1999) and second, when he ceased the position of General Secretary of the Juba League (August 2004 when he went into hiding or November 2004 when he fled the country). Even if his explanations for these two contradictions are not believed, in the context of what matters, they were insignificant and minor and do not justify the tribunal's conclusions he was not politically active.
[33] I should add counsel for the respondent made a valued attempt to embellish the tribunal's reasons by pointing to evidence not relied upon by the decision-maker to the effect the applicant had lied about the time when he had been a student. Counsel for the applicant correctly pointed out the tribunal had not relied on such purported fact and it had not been confronted on the point.
[34] The applicant testified he had been arrested by the police and detained from April 29, 2004 until May 2004 along with other members of the Awami League as they headed towards Dhaka for a protest rally. He had written about his arrest in his PIF (where he said he had been mistreated) and in his POE (see certified Tribunal Record, (CTR) pages 25 and 125).
[35] The tribunal as noted considered exhibits P-11, P-12 (the letters from the Awami League) and P-15 (the letter from his lawyer in Bangladesh) observing none of them made reference to the detention. The tribunal characterized the detention as a "major element of the past persecution and also justifies the fear of further persecution by the police, it is surprising that it is not mentioned in the above documents disclosed by the claimant." As noted, concerning the arrest and detention the tribunal pointed to his answer that he never had any problem with the police.
[36] I find the tribunal's treatment of the letters unreasonable in that the tribunal has misread the evidence, mischaracterized the nature of his fear and ignored evidence favourable to him.
[37] In terms of the lawyer's letter, it was not the purpose of his inquiry with the police to determine whether the applicant had been arrested in the past, but rather whether and why the police were currently looking for him.
[38] As to the Awami League letters, it is true that they do not mention the applicant's past arrest and three-day detention but they do emphasize his current fear of return. Moreover, it seems odd that the tribunal would give the Awami League letters some weight on the detention issue but give it no weight generally.
[39] As to the second reason for not believing the applicant had been arrested, the tribunal focused on his answer that he never had any problem with the police prior to August 27, 2004. At page 163 of the CTR, his answer and the follow-up questions were as follows "Answer: I never had any problem with the police. Question: So, you never had any problem with the police before the 25th of August 2004? Answer: Police, I did not have any problem with the police because police never searched for me like that, but they arrested me once. Question: Ah, okay. So that's not a problem. They arrested you but that is not a problem? Answer: Yes, that's a problem, but they never came to search for me in my house."
[40] Counsel for the applicant conceded this contradiction could stand and the tribunal was entitled to reject his explanation but, in my view, the extract does not support the tribunal's inference the applicant adjusted his testimony.
[41] The tribunal rejected the applicant's testimony why he had not fled Bangladesh before the August, 2004 attack. The applicant had explained it was because during this incident the BNP Goons threatened to kill him. The tribunal stated "this explanation is hardly reasonable since, according to his story he was attacked several times before, threatened and injured. He was also detained in April 2004. The claimant explained that the previous incidents were not serious enough for him to stop his political activities."
[42] The tribunal's reasoning is contradictory. The tribunal relies on the fact he was detained in April 2004, a fact which in the previous paragraph it had cast aside.
[43] Moreover, the applicant's testimony was reasonable in terms of the political strife in Bangladesh. At page 160 of the CTR, the applicant stated as follows:
"The reason why I didn't think that was so severe it's because I was not threatened to be killed that time. If you go to Bangladesh you will see in Bangladesh this is a very day-to-day matter. It happens often. All the time and we have to continue our political activities within that. I was not threatened to be killed."
[44] Previously, at page 158 of the CTR the applicant had explained:
"No, I was not afraid because things like this happen often in our country and we have to continue our political activities going through these kinds of things. And not me alone, other political workers and leaders of the Awami League. After this government came to power they're making problems for us. We have leaders and leaders of political activists who have been killed."
[45] Finally, of the treatment of the lawyer's letter, I find, once again, the tribunal misread the evidence. The claimant was able to explain why his father required the help of a lawyer in 2005. It was not because the police had allegedly been looking for him since 2004. In addition, the tribunal doubted the lawyer even existed. Yet it had previously given some weight to that letter on the detention question.
[46] These errors are sufficient to warrant a fresh look at the applicant's claim for Canada's protection.
ORDER
THIS COURT ORDERS that this judicial review is allowed, the decision of the tribunal is set aside and the matter of the applicant's refugee claim is remitted for re-determination by a newly constituted panel. No certified question arises.
"Francois Lemieux"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6643-05
STYLE OF CAUSE: SADAT JAMIL
v.
MCI
PLACE OF HEARING: Montreal, Quebec
REASONS FOR ORDER: The Hon. Justice Lemieux
APPEARANCES:
| Me Pia Zambelli
|
|
| Me Michèle Joubert
|
SOLICITORS OF RECORD:
| Me Diane N. Doray Montreal, Quebec
|
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| John H. Sims, Q.C. Deputy Attorney General of Canada |