Date: 19990512
Docket: IMM-5070-98
BETWEEN:
SULTAN MAHMUD
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The applicant challenges by way of judicial review the decision of the Immigration and Refugee Board (Refugee Division) (the "CRDD"), dated 15 September 1998, in which the CRDD determined that the applicant is not a Convention refugee within the meaning of s.2(1) of the Immigration Act .
Background
[2] The applicant, Sultan Mahmud, is a 24 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, in this case the Jatiya Jubo Sanghati (the "JJS"), which is the youth wing of the Jatiya Party (the "JP"). The applicant fears persecution at the hands of the Bangladesh National Party (the "BNP"), the Awami League (the "AL"), and the police.
[3] In support of his claim, the applicant"s Personal Information Form provides the following detailed account:
| C The applicant joined the JJS in September 1991, having been inspired by his uncle, who was the president of the Demra Thana Branch of the party. A party rally was held on 10 October 1991; armed BNP "terrorists" attacked the meeting. In that same month, although no specific date was given, the applicant was arrested by the police and accused of extortion, which he denied, and was beaten by the police during the interrogation. The applicant"s father paid a bribe the next day, and the applicant was released. |
| C On 1 February 1992 the applicant and a colleague were putting up posters advertising a grand assembly of the JP to call for the release from prison of the party"s leader, General Ershad, who led the country from 1982 until 1990 when he was toppled from power and imprisoned. While putting up the posters, the applicant was attacked by BNP supporters; he reported the incident to the police, but they refused to act. |
| C "Armed BNP goons" attacked the grand assembly on 29 February 1992. Several party members were injured. |
| C On 12 October 1993, during a JP demonstration held in support of a general strike, the applicant and the other demonstrators were attacked by the police and beaten. The applicant sustained injuries and produced a medical certificate attesting to the fact of the injuries. |
| C The applicant assisted his party in campaigning for upcoming elections on 30 January 1994 when he was attacked near a polling centre by a group of BNP supporters. When the incident was reported to the police, the applicant was falsely implicated in the beating of a BNP member, and was arrested and beaten. The applicant"s father"s offer of a bribe was refused, and the applicant appeared in court the next day whereupon he plead not guilty and was granted bail. |
| C In December 1994, the BNP hurled bombs at a JP meeting. During the ensuing melee, a JP member was killed. The BNP, however, claimed the dead man was one of their members and filed a case naming the applicant as an accused. The police raided the applicant"s house; the applicant fled to Comilla where he was later arrested, detained, tortured, and was released after three days. |
| C In November 1995, a former M.P., who is a leader of a BNP faction, was attacked, and the applicant was implicated. BNP members ransacked the applicant"s house and beat his brother. The applicant went into hiding, while the BNP and police continued to look for him. |
| C The applicant was advised by his mother that the situation was fast deteriorating, and so he fled the country with the help of a broker on 22 December 1995. He made his way to Montreal, and claimed Convention refugee status on 10 January 1996. |
[4] In support of his claim, the applicant tendered letters from his uncle, Amir Hossain, who is president of a branch of the JP, Mannu Miah Munna, president of the JJS in Demra, the applicant"s town, and his mother. He also submitted two letters from a lawyer in Bangladesh who was retained by his family to represent him in regard to charges laid against him in 1998. These charges relate to an incident where a bus was attacked and bombed.
The CRDD"s Finding Respecting Credibility
[5] In its reasons, the CRDD found that the applicant"s claim to being pursued by the police and the BNP in 1995 was not trustworthy, and, therefore, not credible. The panel concluded that the applicant exaggerated his account of what occurred in 1994, and doubted that he was tortured.
[6] In coming to these conclusions, the panel considered the letters submitted by the applicant"s uncle and the Demra JJS president. The letters mentioned only in general terms the problems that the applicant claimed to have suffered. The uncle"s letter does not mention any arrest or detention, while the other letter states that the applicant was detained for two days. Neither letter mentions torture. About the letters , the CRDD said this:
| The panel finds it reasonable to expect that the letters, tendered by the claimant purposely to corroborate his story of persecution in Bangladesh, would have been more consistent with each other and with the claimant"s story. ...The panel gave the claimant ample opportunity to explain why the authors of the two letters did not corroborate his purported problems that were supposed to have given rise to his well-founded fear of persecution in Bangladesh, but he failed to give any reasonable explanation. [Decision, p. 3] |
[7] With regard to the lawyer"s letters respecting the charges against him, the CRDD stated that the claimant was "unable to present reliable and trustworthy evidence to support his allegation" that BNP leader Nabiullah Nabi is behind the 1998 charges. The CRDD concluded that these letters were "self-serving" and, therefore, have no probative value in assessing the well-foundedness of the applicant"s fears of persecution. The CRDD also found it implausible that BNP leaders would show an interest in the applicant in 1998, and stated that this recent interest by the claimant"s enemies to be "too contrived to be true."
Reviewable Error
[8] I find that the CRDD"s conclusions respecting credibility are made in reviewable error.
[9] In Maldonado v. Canada (MEI), [1980] 2 F.C. 302, the Federal Court of Appeal held that when an applicant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there is reason to doubt their truthfulness. The Court held that a Board acts arbitrarily in choosing to disbelieve an applicant"s testimony where there exists no valid reason to doubt the truthfulness of it. Thus, while it is open to the CRDD as the trier of fact to evaluate the evidence and accord weight, any inconsistencies it finds must be supported by the evidence.
[10] In Ahortor v. Canada (MEI) (93-A-237, 14 July 1993), Mr. Justice Teitelbaum held that the CRDD erred in finding an applicant not credible because he was not able to provide documentary evidence corroborating his claims. Thus, while a failure to offer documentation may be a valid finding of fact, it cannot be related to the applicant"s credibility, in the absence of evidence to contradict the allegations.
[11] In the present case, in effect, the CRDD found the letters submitted by the applicant to be contradictory of the applicant"s evidence, not for what they say, but for what they do not say. To follow established authority, the letters must be considered for what they do say. On their face they support the applicant"s evidence, and do not provide evidence contradicting that evidence.
[12] Therefore, I find that the approach adopted by the CRDD is contrary to law. Accordingly, the CRDD"s decision is set aside and the matter is referred back for redetermination before a differently constituted panel.
"Douglas R. Campbell"
JUDGE
CALGARY, Alberta
MAY 12, 1999
[13]
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990512
Docket: IMM-5070-98
BETWEEN:
SULTAN MAHMUD
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
[14]
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5070-98
STYLE OF CAUSE: SULTAN MAHMUD v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: May 11, 1999
REASONS FOR ORDER OF CAMPBELL, J.:
DATED: May 12, 1999
APPEARANCES:
Mr. B. P. S. Mangat for the Applicant
Mr. W. Brad Hardstaff for the Respondent
SOLICITORS OF RECORD:
Mr. B. P. S. Mangat
Calgary, Alberta for the Applicant
George W. Thomson
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent