Date: 20050210
Docket: IMM-9459-03
Citation: 2005 FC 221
Toronto, Ontario, February 10th, 2005
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
MOHAMMED FORHAD HASSAN MAKSUD
(A.K.A. MD. FORHAD HASSA MAKSUD)
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Maksud is a citizen of Bangladesh. He claims that he is at risk of persecution and harm in Bangladesh because of his political views, specifically his affiliation with the Awami League (AL). He arrived in Canada on August 4, 2002. On November 12, 2003, the Refugee Protection Division of the Immigration and Refugee Board (RPD) determined that Mr. Maksud is neither a Convention refugee nor a person in need of protection. He requests that I allow his application for judicial review and set aside the board's decision.
[2] In its reasons, the RPD made the following findings:
· the applicant's identity is accepted as being a citizen of Bangladesh;
· the applicant was the victim of harassment and extortion but these events did not amount to serious harm in the past;
· the evidence does not support that there is more than a mere possibility a person of the profile of the applicant will be subjected to serious harm as a result of his low level political activities in support of the AL;
· the applicant's fear of returning is not well-founded and hence the claim fails.
[3] The applicant challenges the decision on a number of grounds. In my view, it is not
necessary to review all of the allegations of error. The failure of the board to refer to the extensive evidence contained in the narrative of the personal information form (PIF) is reason to remit the matter back for redetermination.
[4] The decision, on its face, appears cogent and concise, but comprehensive. The board analysed past events to arrive at its prediction of future risk. The board specifically found that Mr. Maksud had been targeted as a result of his known support of the AL, had experienced extortion and had lost his business contract as a result. These events, in the board's view, did not reach the level of serious harm or persecution. Mr. Maksud's profile was such that he did not come within the group of persons that, according to the documentary evidence, continued to experience problems.
[5] The applicant says that this finding was made without regard to evidence that was central to the claim. He points specifically to the contents of the PIF narrative and says that the evidence contained therein was ignored. Since the RPD appears to have accepted his evidence and it makes no negative credibility finding, the PIF evidence must be taken as true. If accepted, the finding in relation to past occurrences as a prediction of future risk is patently unreasonable.
[6] The respondent argues that even where there is no adverse credibility finding, it is not automatic that the applicant has established a well-founded fear of persecution. I agree with the respondent in this respect, but I do not think it is that simple. Regard must be had to the PIF narrative.
[7] In this case, the narrative is extensive and is comprised of some fifteen pages. Of those, five pages are devoted to descriptions of various occasions upon which the applicant alleges that he experienced assaults, threats, death threats and violence. It is also alleged that the death threats are ongoing and that family members continue to be confronted and questioned with respect to the applicant's whereabouts. It is the " thugs" of the Bangladesh Nationalist Party (BNP) and the Rapid Action Team (RAT) who are responsible.
[8] The difficulty arises because there is no indication that the RPD considered any of this evidence. It was certainly open to the board to disbelieve the applicant, but it did not. In the face of its finding that Mr. Maksud was targeted for political reasons and in the face of it not having found him to be not credible, in my view, it was incumbent on the board to refer to and comment on this evidence. The RPD could have rejected the evidence, but it could not ignore it because it was central to the claim. If it disbelieved the evidence, it had to say so unequivocally. The ultimate determination, in the circumstances, must be considered to have been arrived at without regard to the evidence and is therefore patently unreasonable.
[9] The application for judicial review will be allowed. Counsel did not suggest a question for certification and none arises on these facts.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is remitted for redetermination before a differently constituted RPD. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9459-03
STYLE OF CAUSE: MOHAMMED FORHAD HASSAN MAKSUD
(A.K.A. MD. FORHAD HASSA MAKSUD)
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 9, 2005
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES BY:
Leigh Salsberg
FOR THE APPLICANT
Angela Marinos
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Barristers & Solicitors
Toronto, ON
FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT