Date: 20040227
Docket: IMM-4946-03
Citation: 2004 FC 301
BETWEEN:
MD ATIQ ISLAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This application for judicial review has a lot to do with politics in Bangladesh, violence pertaining thereto and a comparison of the situation as it once was and as it now is.
[2] Atiq Islam is a citizen of Bangladesh. He was an official of the Jatiya Party at a local level. At the relevant time, from 1996 to 2000, the Awani League was in power. Some of their "goons" visited his family business and warned him that trouble would ensue for opposing the government.
[3] He was also warned by the police to stop political activities. His criticism of police corruption may not have been limited to political issues. He spoke out publicly against police corruption in general.
[4] Following participation in a rally in December 1999 he was targeted, beaten and warned to stop his political work by Awani League goons. He went to the police, but they were of no help. In fact, some months later they hit him on the head while he participated in a procession. A lawyer warned him that he could be arrested under the Special Powers Act or the Public Safety Act. At that point he came to Canada and made a claim for refugee status.
[5] The Immigration and Refugee Board, Refugee Protection Division found that he was not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. This is a judicial review of that decision.
[6] Country conditions often change. In October 2001 another political party, the Bangladesh National Party, won the election and helped form a new government. The Jatiya Party has split in two with one faction apparently supporting the Bangladesh National Party. However, Mr. Islam's faction, the Jatiya Party (Ershad), does not.
[7] The Board, based on the documentary evidence before it, has found that the Bangladesh National Party has taken important measures to improve matters such as changing the national and Dhaka police chiefs. It considers this a profound change of circumstances. Having been soundly defeated, the Awani League is no longer a major force to be reckoned with. The Board formed the opinion that the claimant no longer had an objective basis for his alleged fear of persecution should he return to Bangladesh.
[8] Mr. Islam's counsel led the Court through a detailed analysis of the evidence and pointed out that for every finding of the Board there was evidence or documentation which could have justified an opposite finding. He may be right. It may well be that I might have placed less weight on some of the documentary evidence and would have given more weight, or not have cast aside, some of the evidence which corroborated Mr. Islam's concerns should he be returned to Bangladesh.
[9] The Board found it was not plausible that Mr. Islam would still be targeted by Awani League goons or by Bangladesh National Party goons and also found that Bangladesh state protection was available to him.
[10] The Board is specialized. It has been held time and time again that its findings of fact, and this is a case which turns on its facts, are entitled to considerable deference. Indeed, the findings are not to be disturbed unless they are patently unreasonable (Aguebor v. Canada (MEI) (1993), 160 N.R. 315 (F.C.A.)).
[11] While, as I said, I might have preferred some parts of the documentary evidence to other parts and might have given more weight to Mr. Islam's own testimony, I am satisfied that the Board considered all the evidence before it and made no patently unreasonable error. I can do no better than adopt the following passage from the decision of Blanchard J. in Meyer v. Canada (Minister of Citizenship and Immigration), 2003 FC 878, where he said at paragraph 20:
...The applicant essentially argued that the Board afforded far too much importance to the documentary evidence and failed to properly consider the applicant's evidence. I reject the applicant's argument. There is nothing before me to support the contention that the Board has failed to have regard to the evidence before it. The applicant may not accept the Board's findings, but it is not the role of the Court on judicial review to re-weigh the evidence. It is also well established that the Board, an expert tribunal, is at liberty in assessing evidence to prefer documentary evidence over the testimony of an applicant. [Zhou v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 1087 (QL)]. Based on the evidence before the Board, I do not find its credibility and plausibility assessments to be patently unreasonable.
[12] It was not necessary for the Board to explain why it did not give probative value to some of the documents that were relied upon by the applicant or to confront him with that evidence (Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (F.C.A.) and Victorov v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 900.
[13] It was not perverse or patently wrong for the Board to find that Mr. Islam would be given a measure of state protection in Bangladesh. There is no clear evidence that the police themselves would still have an interest in persecuting him. As was held by the Court of Appeal in Canada (Minister of Employment and Immigration) v. Villafranca (1992), 150 N.R. 232, the burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. It is an objective test and it is not enough for a claimant to show that his or her government has not always been effective at protecting its citizens.
[14] For these reasons the application for judicial review shall be dismissed.
[15] There is no question of general importance to certify for the Federal Court of Appeal.
"Sean Harrington"
Judge
Ottawa, Ontario
February 27, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4946-03
STYLE OF CAUSE: MD ATIQ ISLAM
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: FEBRUARY 23, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: FEBRUARY 27, 2004
APPEARANCES:
Me Jean-Michel Montbriand FOR APPLICANT
Me Marie-Claude Demers FOR RESPONDENT
SOLICITORS OF RECORD:
Doyon & Montbriand FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General for Canada