Federal Court Decisions

                                                                                                                                Date: 20040218

                                                                                                                    Docket: IMM-5131-03

                                                                                                                     Citation: 2004 FC 248

BETWEEN:

                                                            AKASH RAHMAN

                                                                                                                                            Applicant

                                                                        - and -

                          THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                       REASONS FOR ORDER AND ORDER

MACTAVISH J.

[1]                 Akash Rahman is a citizen of Bangladesh and a member of the Jatiya Party ("JP"). He claims to have a well-founded fear of persecution at the hands of the ruling Awami League ("AL"), based upon his political opinion. The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Rahman's claim, finding that he had not provided credible evidence to establish that he was either a Convention refugee or a person in need of protection.    Mr. Rahman now seeks to have that decision set aside, alleging that the Board's credibility findings were patently unreasonable.

BACKGROUND

[2]         Mr. Rahman testified that he developed an interest in politics when he was in college. He followed the practices and policies of General Ershad ("the General"). Although he never supported the General when he was in power, Mr. Rahman agreed with the programs that he advocated. In 1996, Mr. Rahman joined the JP. Mr. Rahman says that he became well known in his community through his efforts to promote the party and its activities.

[3]                 After completing his studies, Mr. Rahman began working at Labbana Enterprise and later went to work at Welltrex Garments. In these jobs, he had the opportunity to mingle with the working class, especially female workers from the rural villages. This experience confirmed Mr. Rahman's belief in the General's rural-based policies.

[4]                 In early 2000, the AL introduced the Public Safety Act. The JP was very opposed to this legislation, and organized boycotts, walkouts and a general strike. Mr. Rahman was active in publicity work for the Party, and took part in the strike.

[5]                 As a result of his activities, Mr. Rahman was targeted by the AL. In February of 2000, Mr. Rahman was threatened, and was ordered not to participate in any JP activities. Although confrontations occurred between the JP and the AL, Mr. Rahman was never physically attacked. On December 16, 2000, AL goons attacked a JP meeting with hand bombs and firearms. Mr. Rahman, who had been instrumental in organizing this event, was chased by the AL goons, but managed to escape unharmed.

[6]                 Mr. Rahman decided not to return home after this incident. He claims that he learned that the police came to look for him at his house the next day in connection with the violence at the meeting. As a result, Mr. Rahman decided to leave the country. An agent provided Mr. Rahman with false documents, and put him on a plane to Canada. He arrived in this country on January 25, 2001, and claimed refugee status by mail on January 30, 2001.

[7]                 Mr. Rahman says that family members have told him that since he left Bangladesh, AL goons and the police have continued to harass his family, while searching for him at his home and at his former workplace.

[8]                 Mr. Rahman has also learned that the General was jailed by the AL. The General was only released after the October 2001 election, when the Bangladesh Nationalist Party ("BNP") claimed a landslide victory. The AL rejected the election results, however, and ordered a new election. The BNP remains in power in Bangladesh and the General has been sent into exile.

DECISION OF THE BOARD

[9]         The Board determined that Mr. Rahman failed to discharge the burden on him to provide credible and trustworthy evidence in support of his claim. Indeed, the Board made it quite clear that Mr. Rahman's testimony was remarkable for its level of inconsistency and lack of credibility. As a result, the Board found that Mr. Rahman was neither a Convention refugee nor a person in need of protection.

[10]            The Board made ten findings relating to Mr. Rahman's credibility:

1.          There was an inconsistency between Mr. Rahman's Personal Information Form ("PIF") and his oral testimony as to whether the AL goons looked for him at his home and/or his workplace.

2.          There was an inconsistency in Mr. Rahman's testimony as to whether he was at risk from the AL after he left the country.

3.          There was an inconsistency as to when the police last went to Mr. Rahman's family home in search of him. Mr. Rahman was reported to have first said that the police had been there as recently as a few days ago, and then said that their last visit had been a few months before.

4.          Mr. Rahman was not credible on the issue of whether the police were still interested in him, given that more than two years had passed since he left Bangladesh.

5.          There was an inconsistency in Mr. Rahman's evidence as to how the police knew that he was out of the country, and whether or not they knew that he was in Canada.

6.          There was an inconsistency between Mr. Rahman's testimony that he received equal political support from the garment factory where he worked and his home riding, and a letter from the head of the political party indicating that he received more political support from workers at the garment factory. The Board found that it was not credible that the political party would not be aware of the source of Mr. Rahman's support.

7.          The Board found that Mr. Rahman's failure to refer to his fear of the BNP in his PIF was unreasonable. Mr. Rahman testified that he only became scared of the BNP after the Party came to power, which was after he had completed his PIF.

8.          The Board found inconsistencies in Mr. Rahman's job title and dates of employment.

9.          There was an inconsistency with respect to Mr. Rahman's evidence as to why the General had been released. In his PIF, Mr. Rahman said that the General was exiled, yet in his testimony, he stated that the General left the country for medical reasons.

10.        Finally, the Board found that the five day delay before Mr. Rahman made his refugee claim after arriving in Canada was a relevant factor.

ISSUES

[11]       The only issue before the Court is whether the Board erred in law in making credibility findings that are not sustainable on the evidence that was before the Board.

STANDARD OF REVIEW

[12]       The Immigration and Refugee Board has a well-established expertise in the determination of questions of fact, including the evaluation of the credibility of refugee claimants. Indeed, such determinations lie at the very heart of the Board's jurisdiction. As a trier of fact, the Board is entitled to make reasonable findings regarding the credibility of a claimant's story, based on implausibilities, common sense, and rationality. Accordingly, before a finding of fact made by the Board will be set aside by this Court, it must be demonstrated that such finding is patently unreasonable: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraph 40, and Aguebor v. Canada (Minster of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).

ANALYSIS

At the hearing of this application, Mr. Rahman acknowledged that there was an inconsistency in his evidence as to whether the AL goons were looking for him at his home or at his workplace. As a result, Mr. Rahman concedes that the first of the Board's findings is supported by the evidence.

[13]            By the same token, the respondent acknowledged that there was no inconsistency in Mr. Rahman's testimony as to whether he was still at risk from the AL after he left the country. The respondent conceded that the Board's second finding is not sustainable on the evidence.

[14]            Insofar as the remaining findings are concerned, Mr. Rahman argues that the Board should guard against being over-zealous when attacking the credibility of a refugee claimant, particularly when the claimant testified through an interpreter. The Board cannot make an adverse credibility finding while ignoring evidence from the claimant, where that evidence explains the apparent inconsistencies.

[15]            A review of the Board's reasons discloses that the Board analysed the evidence carefully. It compared Mr. Rahman's testimony at the hearing with information that he had previously supplied. The Board noted that Mr. Rahman's testimony was marked by inconsistencies, implausible scenarios and unsatisfactory explanations, and based its findings on all of the evidence before it. Having reviewed the transcript, as well as Mr. Rahman's PIF, I can say that I might not have come to the same conclusions as did the Board on some of the points identified by Mr. Rahman. I cannot, however, say that the Board's findings of fact were patently unreasonable.

[16]            At the end of the day, it appears that the Board made one erroneous finding: that is, that there was an inconsistency in Mr. Rahman's testimony as to whether he was at risk from the AL after he left Bangladesh. The question, then, is whether the Board would have determined Mr. Rahman's claim any differently, had it properly construed his evidence on this point: Owusu v. Canada (Employment and Immigration Commission) [1988] F.C.J. 434. From a review of the Board's reasons it appears that the Board's finding on this issue was not central to the decision. Given all of the other problems with Mr. Rahman's evidence, I am not persuaded that this error is sufficiently important to justify the intervention of this Court. Accordingly, the application is dismissed.

CERTIFICATION

[17]       Neither party has suggested a question for certification.

                                                                    O R D E R

1.     The application for judicial review is dismissed.

2.      No serious question of general importance is certified.

    "Anne L. Mactavish"

                                          

Judge   

OTTAWA

                                                  

                         FEDERAL COURT OF CANADA

                                     TRIAL DIVISION

Date: 20040218

Docket: IMM-5131-03

BETWEEN:

                                     AKASH RAHMAN

                                                                                         Applicant

                                                 and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                                           

REASONS FOR ORDER and ORDER

                                                                           

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

                                                                DOCKET: IMM-5131-03

STYLE OF CAUSE:

AKASH RAHMAN v. MCI

PLACE OF HEARING:                 Toronto, Ontario

DATE OF HEARING:                   February 12, 2004

ORDER AND REASONS FOR ORDER:

Mactavish J.

DATED:            February 18, 2004

APPEARANCES:

SOLICITORS OF RECORD: