Date: 20001027
Docket: IMM-5417-99
BETWEEN:
MOHAMMAD SAIFUL ISLAM,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
LUTFY, A.C.J.
[1] The applicant, a citizen of Bangladesh, seeks refugee status on the basis of his fear of persecution as the result of his political affiliation and involvement with the Bangladesh National Party (BNP). The Convention Refugee Determination Division made a negative finding of credibility and determined that he was not a Convention refugee.
[2] A review of the transcript discloses a number of discrepancies in the tribunal's reasons for decision.
[3] First, on my reading of the transcript, the applicant's testimony concerning Awami League goons attacking his family on a frequent basis may have been related to incidents which occurred after he left Bangladesh. It was wrong for the tribunal, in my respectful view, to admonish the applicant for not having included these allegations in his personal information form, which he signed six weeks after his arrival in Canada. Even if the respondent's counsel is correct that these incidents could have occurred during this six-week period and may have been encompassed in the general statement contained in the last paragraph of the applicant's personal information form ("I have been informed that the police and goons continue to look for me"), the relevant passage from the reasons would still constitute a misstatement.1
[4] Second, the tribunal noted another inconsistency in the applicant's evidence. During the hearing, he stated that he was the only person in his family to be a member of the BNP. In his personal information form, his father was described as an active participant in this political party several years ago. In noting what it considered to be conflicting evidence, the tribunal did not deal with the applicant's unequivocal negative reply to the question posed in the present tense: "Is there any other member of your family involved in the BNP?" Further on, the applicant added that his father was "... no more member now. You may call him a supporter.". These answers were not inconsistent with the information in the applicant's personal information form.2
[5] Third, the presiding member incorrectly attributed to the claimant a statement made to departmental officials in his record of examination that "he was escaping charges in Bangladesh". The applicant in fact used different words with a potentially different meaning.3 The second panel member's reasons in his concurring decision appears to reflect more accurately the evidence on this issue.
[6] There were two other minor points raised by the tribunal concerning credibility. In describing the vehicles accused by the police when they intercepted a BNP procession of supporters and arrested some of its members, the applicant used the word "jeeps" in his personal information form and the word "vans" in his testimony. A review of the transcript does not disclose, generally speaking, inconsistencies which would necessarily warrant the tribunal's emphasis on the difference between "jeeps" and "vans". Similarly, the tribunal's characterization of the applicant's "fear of being incarcerated for the rest of his life" did not take into account the interpreter's subsequent qualification of his translation by the words "indefinite period".4
[7] The tribunal's summary of the evidence on these credibility issues raise serious concerns with respect to the quality of the its reasons. The mistakes I have suggested, to the extent that they did not affect the tribunal's main finding concerning credibility, may not have warranted this Court's intervention. However, I am satisfied that the tribunal did commit a reviewable error in concluding that the applicant's testimony lacked plausibility on "the central issue of concern" without mentioning in its reasons documentary evidence which was specific to and corroborative of the applicant's allegations.
[8] It is open to the Convention Refugee Determination Division to base its negative finding of credibility on the implausibility of the claimant's allegations: Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.) and Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). A finding of lack of plausibility, however, cannot be made without regard to the material before the tribunal. It is incumbent on the tribunal not to ignore documentary evidence, directly related to the claimant's allegations, in its reasons for decision: Djama v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 531 (QL) (C.A.).
[9] The burden on the tribunal to explain its findings of fact in the light of relevant evidence was reiterated by Justice Evans, when he was in the Trial Division, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL) (T.D.) at paragraphs 15 and 17:
| 15. The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. |
....
| 17. ... Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. |
[10] The claimant testified that he joined the BNP to ease the plight of poor people in his community. The tribunal concluded that this statement lacked plausibility because of the history of political violence and corruption in Bangladesh. While it may conceivably have been open for the tribunal to make this finding of implausibility, it could not do so without referring in its reasons to the following documentary evidence: (a) a press report which is apparently directly related to an incident described at some length in the applicant's personal information form;5 (b) a medical report purportedly certifying the applicant's hospitalization on dates which would coincide precisely with his alleged release from detention for nineteen days;6 and (c) a letter from a member of the Bangladesh National Parliament describing the applicant's active involvement at the local level of the BNP.
[11] If the tribunal did not accept the veracity of this documentary evidence, it had to state so in its reasons in finding that the applicant's version lacked plausibility. Because it failed to do so, I must conclude that the tribunal's decision was made without regard to the material before it.
[12] Accordingly, this application for judicial review will be allowed and the matter referred for redetermination before a differently constituted panel of the Convention Refugee Determination Division. Neither party suggested the certification of a serious question.
(Sgd.) "Allan Lutfy"
A.C.J.
October 27, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: IMM-5417-99 |
| STYLE OF CAUSE: Mohammad Saiful Islam |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: October 24, 2000 |
| REASONS FOR ORDER OF Lutfy, A.C.J. |
| DATED: October 27, 2000 |
APPEARANCES:
| Mr. Anthony Norfolk For the Applicant |
| Ms. Rama Sood For the Respondent |
SOLICITORS OF RECORD:
Anthony Norfolk
Barrister and Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
1 Tribunal record, pp. 10-15, especially at p. 15, ll. 45-47
2 Tribunal record, p. 29, ll. 45-47, p. 32, ll. 46-47 and p. 89
3 Tribunal record, pp. 22-26, ll. 101 and 104