Date: 19990602
Docket: IMM-2477-98
BETWEEN:
KHALED AHMED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
CULLEN, J.:
[1] The applicant challenges by way of judicial review the decision of the Immigration and Refugee Board, Convention Refugee Determination Division ("CRDD"), dated 24 March 1998, in which the CRDD determined that the applicant is not a Convention refugee within the meaning of subsection 2(1) of the Immigration Act , R.S.C. 1985, c. I-2 (the "Act"). Leave to commence an application for judicial review was granted on 4 March 1999.
[2] The applicant requests that the CRDD"s decision be set aside and the matter returned for redetermination before a differently constituted panel.
[3] Background
The applicant, Khaled Ahmed, is a 37 year old citizen of Bangladesh. His claim for Convention refugee status is based on his fear of persecution on the grounds of political opinion and membership in a particular social group, which in this case is the Bangladesh National Party ("BNP"). He fears persecution at the hands of the Awami League ("AL") and the police. He fled Bangladesh on 20 May 1997, and made a claim for Convention refugee status the next day, following his arrival in Montreal.
[4] The applicant joined the BNP in January 1988 as a general member. He claims he was an active participant in political activities, which resulted in several politically motivated attacks by AL and Jatiya Party ("JP") goons. He also claims that he was elected publicity secretary for his party in December 1991.
[5] The applicant further claims that he was twice approached by Liton Chowdhury and threatened with dreadful consequences if he did not switch party allegiances. Chowdhury is the local AL leader and was elected to parliament in 1992 after his father, who was the MP, died. Chowdhury was reelected in 1996. It was during the 1996 campaign that Chowdhury allegedly first approached the applicant. The applicant also claims that Chowdhury"s goons destroyed his father"s fish farm and stole the fish. He also claims that his name was on a list of public enemies which Chowdhury read aloud in November 1996.
[6] Finally, the applicant claims that he was arrested and severely beaten and tortured by the police in March 1997, three days after the BNP declared a general strike. He claims he was released after one day because his physical condition had deteriorated to the point where the police were afraid he would die in their custody. He paid a bribe and was released. The police later raided his house looking for him, but he escaped, went into hiding, and arranged to flee Bangladesh.
[7] Board"s Decision
The CRDD determined that the applicant is not a Convention refugee based on its negative credibility findings regarding the applicant"s evidence.
[8] The panel had doubts as to the issue of the applicant"s identity. He travelled to Canada using a false passport, a not uncommon occurrence, but was unable to file any identity documents bearing his photograph. His birth certificate"s veracity was of some doubt to the panel as it lacked any official stamp or heading. The exhibits filed with the panel were all issued after he had left Bangladesh, but none relate to his identity, aside from the suspect birth certificate. The panel concluded that while it had concerns regarding his identity, they were resolved in his favour and he was given the benefit of the doubt on this issue.
[9] The panel, however, had serious concerns regarding the credibility and plausibility of the applicant"s story. The panel doubted that the applicant had been, as he claimed, the publicity secretary for his local branch of the BNP. He was unable to describe either its political platform or strategy, which, according to documentary evidence, consists of organizing demonstrations and strikes in order to paralyse the country and destabilize the government.
[10] The panel also disbelieved the applicant"s claim that he was harassed by Chowdhury, the local AL MP. The BNP was weak in Chowdhury"s riding, and the panel found it improbable that Chowdhury, whose family was well established politically, would have targeted the applicant, especially the day after the AL won the election. Members of the local BNP executive were not similarly targeted, and the panel rejected the applicant"s explanation that his persecution was due to his direct contact with the public.
[11] The panel conceded that it was possible that the applicant had been attacked by political opponents and may even have been arrested; however, the panel did not believe that he had been tortured by the police. The applicant had claimed that the police stopped beating him because his physical condition was deteriorating fast and the police did not want him to die while in their custody. Yet, he did not seek medical treatment upon his release, other than to get painkillers from the pharmacy and massages from his parents.
[12] The panel further noted a discrepancy between the applicant"s personal information form ("PIF") and his testimony regarding the reason for his arrest. In his PIF, he claimed the police questioned him about his plans for the future where the government was concerned. In his testimony at the hearing, however, he claimed that he was the subject of a complaint of terrorism. The applicant could not explain the omission in his PIF of the complaint of terrorism, and the panel considered this to cast more doubt on his allegations.
[13] With regard to the corroborative evidence, offered by the applicant in the form of letters from the secretary general of his party and his family lawyer, the panel found them to be of little help. The letter from the secretary general does not mention the arrest and terrorism charge, and was written after the applicant"s father approached the party and informed them of what had happened to his son. The panel attached no weight to the lawyer"s letter as it did not believe the applicant"s story.
[14] Finally, the panel did not believe that the attack on the applicant"s father"s fish farm was anything other than criminal in nature. The panel found it improbable that political assailants would have stolen the fish after destroying the facilities. The applicant"s father and brother were not politically active, and the panel found it unlikely that political opponents would target the facility.
[15] Applicant"s Position
The applicant submits that the panel erred in assessing his credibility, failed to assess an aspect of his claim, and failed to consider properly the corroborative evidence.
[16] First, the applicant contends that the CRDD erred in drawing a negative inference in terms of the totality of the evidence and failed to provide clear and precise reasons supporting its finding. The applicant contends that the CRDD erred when it failed to refer to particular documentary evidence that renders his evidence implausible, but rather relied on documentation in general. The applicant further contends that the CRDD erred in microscopically examining his answer regarding his knowledge of his party"s platform. The panel told the applicant what it thought his party"s platform was, but did not refer to the documentary evidence from which it gained this knowledge.
[17] The applicant argues that the panel erred when it concluded that it was improbable that Liton Chowdhury would target the applicant. The applicant contends that the panel implied an improper standard of "improbable" instead of "implausible." The applicant further contends that the panel erred when it rejected his explanation that it was the public nature of his role within the BNP which led to his harassment.
[18] The applicant submits that the panel engaged in improper speculation when it held that had the fish farm really been attacked, the vandals would have destroyed the property and not merely stolen the fish. In fact, they destroyed the dam which kept the fish in the tank, which resulted in the closing of the business and obviated the need to destroy property.
[19] With regard to the applicant"s failure to mention in his PIF that he had been the subject of a terrorism complaint, the applicant explained that it was only a verbal accusation made without foundation. Only when the panel appeared not to accept this explanation did he then concede that there was no reason for its omission from his PIF.
[20] Second, the applicant submits that the panel failed to properly assess his claim. In its reasons, it accepted the possibility that the applicant had been harassed by political opponents and may have been arrested by the police. The panel was required to make a clear finding regarding this aspect of the applicant"s claim, but appears to have left open the possibility that this evidence was credible.
[21] Third, the applicant argues that the panel erred when it rejected the letters he submitted from his party"s general secretary and his family"s lawyer. The applicant submits that the panel was not entitled to reject the party letter because it failed to confirm that he was persecuted by the police and did not mention that he was arrested on suspicion of terrorism. The panel engaged incorrectly in speculating as to why the letter failed to mention these points. The applicant also contends that the panel was not entitled to reject his lawyer"s letter simply because it had credibility concerns regarding the applicant"s testimony.
[22] Respondent"s Position
The respondent submits that the credibility findings made by the CRDD were reasonably open to it based on the record. In particular, the panel found the following aspects of the applicant"s evidence implausible and not credible:
(a) the Applicant"s vague account of the political platform and strategy of the party to which he allegedly belonged; (b) the Applicant"s evidence that he was one member of a party which was weak in his riding, and yet was personally targeted for harassment by the local leader of the opposition party, even though leaders of the Applicant"s section of the party were not harassed or arrested; (c) the Applicant"s account that the police stopped beating him because they thought he was near death, despite the fact that the Applicant required no medical treatment after his detention; (d) the Applicant"s oral testimony that he had been arrested on suspicion of terrorism, a fact which had been omitted from the Applicant"s Personal Information Form; (e) the lack of specific information in the letters filed by the Applicant, and the lack of any mention of an alleged charge of terrorism; and (f) the implausibility of an account of an attack on a fish farm run by the Applicant"s brother and father, who were not involved in politics.
(Respondent"s memorandum, p. 4)
[23] The respondent also submits that the CRDD is entitled to draw a negative inference by reason of omissions of significant events in the applicant"s PIF.
[24] Analysis
Considerable deference is accorded to the CRDD on judicial review for credibility determinations as the panel is in a better position than the reviewing Court to make such findings. When making credibility findings, the panel is duty bound to give clear reasons, which are reasonable in light of the evidence before the panel. The panel disbelieved the applicant and found certain key aspects of his story implausible and gave, in my view, very weak reasons for its findings. I was just not convinced that the reasons stood on solid ground.
[25] The panel doubted whether he was a member of the BNP executive because he could not describe the party"s platform or strategy, things the panel found he should be familiar with since he claimed his duties as publicity secretary involved publicizing his party"s plans. The panel doubted whether Chowdhury targeted the applicant. He had not done so until after the 1996 election, even though he and his family had established a virtual lock on the riding. The panel noted that the BNP was weak in that riding, and also that other BNP executive members had not been similarly targeted by Chowdhury. While the panel used the word "improbable" rather than "implausible", this is little more than semantic hair splitting and does not render the panel"s conclusions unreasonable or subject to judicial intervention.
[26] The Applicant did give an answer as to what his duties were and what it was proposed that his party would do. In my view, the Board were looking for a more specific response and seem to have made their determination on the basis of what they were expecting, not what was actually given to them.
[27] The panel doubted whether the attack on the applicant"s father"s fish farm was politically motivated. To the panel, it seemed more of a criminal act. The panel noted that the fish farm belongs to the applicant"s father and is one of several still functioning properties which the father owns. The Applicant gave solid evidence about the attack and why his father was a victim, namely, to get at the Applicant, and that evidence was much stronger than the panel"s assessment when they called it improbable.
[28] The panel"s finding regarding the omission of the terrorism complaint from the PIF is also unassailable but not particularly important. Counsel for the Respondent as much as conceded that this was one of the panel"s weaker perceptions. The applicant was given the opportunity to explain the omission, but could not provide an acceptable reason. The panel was clearly entitled to reject the applicant"s attempt at an explanation and use the omission to cast doubt on the applicant"s allegations. However, this was one area where counsel for the Respondent conceded it was a weak proposition and certainly no reason to find against the Applicant.
[29] The panel was also acting well within its purview when it assessed the letters submitted by the applicant. These are matters of weight for which the panel is in a better position to make findings, and such findings should not be disturbed lightly. Again, it seems to me the Board rejected this evidence out of hand because it did not comply with what they obviously had in mind.
[30] The applicant"s assertion that the CRDD failed to assess his claim in light of its finding that he may have been arrested has merit. The panel disbelieved the applicant"s claim of torture and the reasons behind his arrest. Again, the panel gave weak reasons to support these conclusions.
[31] In the result, the applicant"s request that the CRDD"s decision be set aside and the matter be sent back for redetermination by a differently constituted panel is allowed.
Ottawa, Ontario B. Cullen
June 2, 1999.
J.F.C.C .