Ottawa, Ontario, February 7, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") with respect to a decision of Barbara Berger of the Refugee Protection Division of the Immigration and Refugee Board ("RPD") denying Amit Chowdhury's ("Applicant") claim for refugee protection. In its decision dated July 19th, 2005, the RPD determined that the Applicant is neither a Convention refugee nor a person in need of protection as per section 96 and 97 of the IRPA. The IRB also excluded the Applicant from refugee protection under section 1Fc) of the Convention relating to the status of refugees, Can T.S. 1969, No. 6 ("Convention"), which is annexed to the IRPA as per section 2 and 98 IRPA.
ISSUES
[2] The issues are the following:
- Did the IRB err in assessing the Applicant's credibility and in deciding that he is neither a Convention refugee nor a person in need of protection?
- Did the IRB err in deciding that the Applicant is excluded from refugee protection?
- Was the hearing fair?
CONCLUSION
[3] For the reasons mentioned below, the application for judicial review is dismissed.
FACTS AND HISTORY OF THE CASE
[4] The Applicant is a citizen of Bangladesh. In March 1996, he joined the Chittagon Ward Unit #9 of the Bangladesh Awami League ("AL"), the political party that formed the National Government in Bangladesh at the time. He allegedly encountered obstruction from the Bangladesh Nationalist Party (BNP) during the June 1996 election, while he was working for an ALcandidate. In 1997, he interrupted his studies to supervise the family business. In 1999, he became an executive member of his unit and became "more responsible in [his] party activities", being very active in recruitment of new members. In August 2001, enforcers from the BNP allegedly extorted money from the claimant's store. One of the enforcers was arrested but was immediately released. Two days before the BNP and allied parties ("alliance") won the election held on October 1st, 2001, the Applicant was chased by BNP enforcers and insulted. During the victory celebrations, the BNP supporters kept harassing and attacking the stores and houses of AL leaders, including the Applicant's house. In December 2001, a demonstration was organized by AL supporters, which was repressed by the police and alliance enforcers. On March 24, 2002, the Applicant and four other AL members were arrested and badly treated by the police and were released shortly afterwards. The Applicant then officially became an organizing secretary. Two years later, on March 26, 2004, the Applicant organized a public meeting to celebrate Independance Day, where he spoke publicly. On his way home, he was chased by BNP and Jamaat-e-Islami ("JI") enforcers. He stayed overnight at a friend's place, while the enforcers headed to his home searching for him. They vandalized his store. The Applicant remained in hiding until May 5th, when he left Bangladesh. According to the Applicant's Personal Information Form ("PIF"), the police visited his mother on May 25th, 2004, searching for him.
[5] The Applicant claimed refugee protection on May 6th, 2004 in Montreal, and his application was denied by the RPD on July 19th, 2005.
IMPUGNED DECISION
[6] In its decision dated July 19th, 2005, the RPD decided that the Applicant is not entitled to refugee protection because it did not believe the Applicant's story. The IRB also excluded the Applicant from refugee protection under section 1F(c) of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, Can T.S. 1987 No. 36 ("Convention").
1. Inclusion
[7] The RPD decision to refuse the Applicant the status of a convention refugee or a person in need of protection is based on an assessment of his credibility. According to the RPD, the Applicant's credibility is questionable for the following reasons :
- The Applicant had a non-cooperative and evasive behaviour with the immigration officer;
- The immigration officer was of the opinion that the documents provided by the Applicant were not satisfactory;
- Expertise conducted by Citizenship and Immigration Canada (CIC) revealed that some identification documents provided by the Applicant were "probably counterfeit", while the Canadian Mission in Dhaka made similar observations;
- The Applicant was not sure of the country that would have issued the false passport he allegedly used to travel to Canada;
- The Applicant testified that he never had an authentic passport issued to him in Bangladesh. A passport issued to him in 2004 bears a temporary stamp which, according to the evidence, is "normally issued to Bangladesh nationals who have lost their passport and/or [are] unable to produce details of their previous passport". In the RPD's opinion, the claimant had a previous Bangladesh passport that he chose not to show to the Canadian authorities;
- The Applicant's testimony during the detention revision hearings was contradictory, confused and difficult to believe;
- The Applicant's declared flight journey is contradicted by the evidence;
- The RPD found implausible it that the police would have waited for two months since the speech of March 26th, 2004 before they went to his place searching for him;
- The claimant told the immigration officer during an interview held on July 21, 2004 that neither the government nor the police were looking for him in Bangladesh, and that his problems occurred only during public demonstrations;
-
- The Applicant cannot provide a reasonable explanation as to why he stated twice during the interview with the immigration officer that he had a AL membership card while he indicated during the RPD hearing that he never had such a card and that these cards do not exist;
- The Applicant made contradicting statements as to whether AL leaders knew that he was arrested by the police during the March 24, 2002 demonstration.
[8] Given these adverse findings on credibility, the RDP found that the documentary evidence presented by the Applicant was of no probative value.
2. Exclusion
[9] As an alternative, the RDP determined that the Applicant should be excluded from refugee protection as he was considered an accomplice in acts contrary to the purposes and objectives of the United Nations.
[10] In the present matter, the War Crime Unit of the Canada Border Services Agency ("WCU") advised the RPD that they would not intervene in the case. After a detailed analysis of the human rights situation in Bangladesh as well as the jurisprudence, the RPD came to the conclusion that the AL government had a heavy record of human rights abuses, that the Applicant was a member of the AL party and had personally and knowingly participated and, finally, that he failed to dissociate from the organization at the earliest opportunity.
ANALYSIS
1. Standard of review
[11] Two standards of review are to be applied in the matter at hand.
[12] The decision of the RPD as to the Applicant's entitlement to refugee protection is primarily based on the credibility of his allegations. It is well established that the standard of review as to the assessment of credibility of an applicant by the RPD is patent unreasonableness (See Thavarathinam v. Canada (Minister of Citizenship and Immigration), 2003 FC 1469, [2003] F.C.J. No. 1866 (F.C.A.), at para. 10; Aguebor v. Canada(Minister of Citizenship and Immigration), [1993] F.C.J. No. 732 (F.C.A.), at para. 4).
[13] The question of whether the Applicant should be excluded under section F of the Convention is a mixed question of fact and law subject to the standard of reasonableness simpliciter (Shresta v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1154, at para. 12 ; Valère v. Canada (Minister of Citizenship and Immigration), 2005 FC 524, [2005] F.C.J. No. 643), at para. 12).
2. Inclusion
[14] The Applicant submits that the RPD made erroneous findings of facts with respect to the Applicant's credibility which justify the intervention of this Court.
[15] After a careful review of the decision and of the evidence, I find that the decision of the RPD on the issue of credibility to be correct. The RPD explained its detailed reasoning and had numerous good reasons not to believe the Applicant. The important inconsistencies and implausibility in the Applicant's story fully justifies the RPD's conclusions on the credibility of the Applicant. Some reasons are more persuasive than others but as a whole, the RPD's determination on credibility should stand.
3. Exclusion
[16] Article 1 F (c) of the Convention reads as follows:
| F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
[...]
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations. |
F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser:
[...]
c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. |
[17] The Applicant did not object that the AL regime is responsible for acts contrary to the purposes and principles of the United Nations, and the RPD decision is very explicit about this issue.
[18] A person can be excluded from refugee protection by reason of its complicity in such acts. The Applicant submitted several extracts from the Handbook on Procedures and Criteria for Determining Refugee Status and other non-binding United Nations documents to show that a restrictive interpretation should be given to exclusion clauses. Even if these documents supported the Applicant's position, which is not necessarily the case in my view, I do not think that they are authoritative in Canadian law. It is a guide. (Fernandopulle v. Canada(Minister of citizenship and Immigration, 2005 FCA 91, [2005] F.C.J. No. 412, at para. 17, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 222). I refer rather to the jurisprudence of the Federal Court of Appeal to interpret the scope of the F(c) exclusion clause.
[19] The notion of complicity was applied to the F(c) exclusion clause in numerous cases (See, e.g., Barzagan v. Canada, [1996] F.C.J. No. 1209 (F.C.A.); Omar v. Canada(Minister of Citizenship and Immigration), 2004 FC 861, [2004] F.C.J. No. 1061 (F.C.); Mohammad v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1457) (F.C.)).
[20] The RPD comprehensively reviewed the jurisprudence on complicity, and noted that three conditions have to be met in order to find a person an accomplice under an exclusion clause, namely:
1. That the person is a member in the organization which committed the acts;
2. That the person had personal and knowing participation, and;
3. That the person failed to dissociate at the earliest opportunity.
[21] The Applicant did not contest that he was a member of the AL league for the whole period of five years when the AL government was in power (October 1996 - July 2001). As for the Applicant's participation, the following observations were noted by the RPD in reaching the conclusion that he personally and knowingly participated in the violent acts of the AL party:
- The Applicant was active for several years in the city of Chittagong, where political life is one of the most violent in Bangladesh;
- It is unbelievable that the Applicant was an exception from the rest of his party, given the record of injured and killed people in politically motivated violence;
- The Applicant was holding a relatively important position in the party;
- Information on the Government's violence was widely known in Bangladesh;
- There is evidence on the role of local militants in requesting police intervention and on collaboration between the police and local ALorganizations;
- The Applicant knew about the human rights abuses committed by the ALgovernment.
[22] The Applicant insisted that the following passage in Chowdhury v. Canada(Minister of Citizenship and Immigration), 2003 CFPI 744; [2003] A.C.F. No. 958, at para. 38-39 is relevant to this case:
The Board, relying on documentary evidence concerning extra-judicial killings perpetrated by the police under the AL regime, found that the Awami League is a "political party which engages in gross violations of human rights". With respect to the applicant, however, the evidence establishes that he was a leader in the youth wing of an AL branch, one of nearly 500 in the country. In my view, describing the applicant as "a senior member of the Awami League" who "played an important role in the organization" amounts to an erroneous finding of fact, particularly when the human rights abuses relied on to establish the applicant's complicity were essentially committed by the police under an AL government rather than AL party members or AL youth wing members.
I find that the evidence in the present case does not meet the test stated in Ramirez, supra. The evidence supports findings that the applicant was a member of the executive committee of a youth branch of the AL party. The AL has over one million members in Bangladesh and nearly 500 government administrative divisions or "thanas". The documentary evidence does show that violence is associated with the political arena in Bangladesh. However, it does not necessarily follow that everyone involved in the political process, or that belongs to a political party in Bangladesh, is complicit in crimes against humanity. Indeed the evidence supports that only a minority are involved with violence and such acts. The evidence simply does not support that the applicant shared a common purpose and knowledge with those committing persecutorial acts.
[23] My role is not to decide whether the Applicant in fact personally and knowingly participated in the brutal acts of the AL party, but rather whether it was reasonable for the RPD to reach such conclusion. I also note that there is evidence that the Applicant's role in the AL can be distinguished from the role played by Mr. Chowdhury in the case cited above, such as the fact that he stated in his PIF that he was a "rising AL leader" and that his involvement with the party became more important through the years. Additional evidence submitted by the Applicant is to the same effect: he is described as a "leader" (p. 356) and as an "uncompressing [sic] leader" (p. 354 of the tribunal's file). The RPD did not make any error of fact in describing the Applicant's role in the AL party. The RPD analysis as a whole supports my conclusion that it was reasonable to determine that the Applicant personally and knowingly participated in the acts committed by the AL Government.
[24] The RDP also determined that the Applicant failed to dissociate and to stay in the ALparty. The alleged opposition of the Applicant's ward against the violence of the AL party was found to be incredible. There is therefore no reason to question the finding of fact that the Applicant failed to dissociate.
[25] I have therefore no reason to intervene on the question of exclusion.
[26] At the hearing, the Applicant submitted that it was perverse for the RPD, on one hand, to find his story not credible and, on the other hand, to exclude him for complicity under Article 1F(c) of the Convention. The Applicant cited the following passage from Khan v. Canada(Minister of citizenship and Immigration), 2001 FCT 836, [2001] F.C.J. No. 1198, at para. (Heneghan J.) :
However, it is perverse and capricious for the board to base an exclusion determination on a finding of fact that it was unwilling to make in its decision. If the Board is unable to find that the applicant was a member of the PBS, then it should not base an exclusion decision on speculation. This determination was patently unreasonable.
[27] The Applicant also relied on Hosseini v. Canada(Minister of Citizenship and Immigration), 2002 FCT 402, [2002] F.C.J. No. 509 wherein Justice Blanchard stated at para. 16:
The decision which I have to consider in this judiciail review is a decision rejecting the applicant's claim for lack of credibility and the fact that the fear of persecution was not objective. The Refugee Division ruled on the non-inclusion, and in my view not on the exclusion, of the applicant from the Convention's protection. For the Applicant to be covered by an exclusion clause, I feel this should be done explicitly. In the case at bar, the Refugee Division clearly found in its reasons that the applicant's testimony was devoid of all credibility and noted that [TRANSLATION] "if the claimant had been credible, he would have had to be excluded". This type of conditional exclusion cannot be used to exclude the applicant from international protection under art. 1F(a) of the Convention.
[28] These two decisions can be distinguished from the matter at hand. In the present case, the RPD did not believe that the Applicant was persecuted, but accepted that he was a member of the AL party and a local leader:
(p.3) Based on the claimant's testimony, I do believe that he was a member of the AL, and even a member of his unit's executive. However, I have rejected the claimant's story of persecution as not credible.
Therefore, the ruling in Khan is not applicable in the present case.
[29] In Hosseini v. Canada, the determination on exclusion was not explained in the reasons of the board. Justice Blanchard stated that a determination on exclusion must be justified, and cannot be based on speculation. In the present case, reasons for exclusion are twelve pages long (p. 7 to 19), based on the evidence, and very detailed.
[30] The argument of the Applicant is therefore rejected.
4. Fairness of the Hearing
[31] Finally, the Applicant submits that the hearing was not fair because the issue of exclusion was raised in the middle of the hearing (See the minutes of hearing, on p. 551 of the tribunal's file), in spite of the fact that the Solicitor General declined to intervene.
[32] The issue of exclusion can be raised at any time during the hearing as long as the Applicant is given proper notice. In this case, the issue was raised during the February 7th session. The RPD decided to grant adjournment to the Applicant, with his agreement, in order for him to prepare for the hearing on this issue and to notify the Solicitor General pursuant to para. 23(2) of the Refugee Protection Division Rules ("RPD Rules"). The following session took place on May 11th, 2005. This is adequate notice as per the standards set out in the jurisprudence (See Yang v. Canada(Minister of Citizenship and Immigration), 2001 FCT 219, [2001] F.C.J. No. 412) and the mere fact that the Solicitor General refused to intervene does not prevent an RPD member from deciding to apply an exclusion clause (Alwan v. Canada(Minister of Citizenship and Immigration), 2004 FC 807, [2004] F.C.J. No. 982).
[33] In addition, the Applicant alleges that the RPD member was partial, and that his lawyer "accused the Member of bias" (The relevant passage of the minutes is on page 589 of the tribunal's file). The relevant test is set out in Committee for Justice and Libertyv. Canada(National Energy Board), [1978] 1 S.C.R. 369. The Court must answer the following question: « what would an informed person, viewing the matter realistically and practically--and having thought the matter through - conclude » ?
[34] The Applicant argued that the RPD member « seemed extremely angry because the Applicant requested an interpreter who spoke the Chittagong dialect of the Bengali language » to support his contentions. Having reviewed the minutes of the hearings, I do not find that an informed person would have thought that the member was biased. Specifically, I went through the minutes of the November 23rd, 2004 minutes (p. 455 to 474 of the tribunal's file), where the discussion on the availability of an interpreter took place, as well as p. 475 to 479 of the January 26th, 2005 minutes. The Applicant studied Computer Sciences in English for three years, was granted the right to an interpreter of the Bengali language (Chittagong is a dialect of the Bengali language) and admitted that he understands English but that that he is better at expressing his « own internal feelings » in his dialect. In my view, the RPD member had an understandable and proportionate reaction. She was legitimately surprised that the Applicant insisted on being afforded the right to a Chittagong interpreter while he understood English and Bengali. No major problem of understanding occurred at any point during the hearing. Where explanations were needed, the RPD presiding member would ask the Applicant to confirm, explain or nuance his explanations. In this context, none of the RPD member's intervention seem excessive. For a decision-maker to be at times impatient is not, in itself, sufficient to satisfy the test of bias (See, e.g. Mighlin v. Mighlin, 2003 SCC 24, [2003] S.C.J. No. 21; at para. 33; Tchiegang v. Canada (Minister of Citizenship and Immigration), 2003 FCT 249, [2003] F.C.J. No. 343, at para. 16; Casa v. Télé-Métropole, 2003 FC 811, [2003] F.C.J. No. 1082; Cerqui v. Canada, [1994 F.C.J. No. 1842, at para. 3).
[35] The parties were invited to submit a question for certification. The Applicant submitted the following questions:
1. Can a private individual, as opposed to a state actor, be guilty of acts contrary to the purposes and principles of the United Nations so as to result in exclusion under Article 1F(c) of the 1951 Convention on the status of Refugees and, if so, under what circumstances?
2. Can an executive member of a political party at the local level be held to be complicit in sustained human rights violations committed by a national government comprised of members of that party for the purposes of exclusion under Article 1F of the 1951 Convention Relating to the Status of Refugees?
[36] In my view, these questions do not meet the criteria set out in Canada(Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, at para. 4. To be accepted for certification, questions must:
- transcend the interests of the immediate parties to the litigation;
- contemplate issues of broad significance or general application;
- be determinative of the appeal.
[37] The first question submitted has already been answered, for the most part, by the Supreme Court of Canada in Pushpanathan v. Canada(Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. In addition, I agree with the Respondent that the Federal Court of Appeal would be required to engage in a purely academic exercise if it had to detail "under what circumstances" a private individual, as opposed to a state actor, would be guilty of acts contrary to the purposes and principles of the United Nations under Article 1F(c) of the Convention.
[38] As for the second question, I agree with the Respondent that it does not reflect the facts of the case and therefore would not be determinative of the appeal. In the present matter, violations were committed by state actors and private actors. The notion of complicity should be decided on a case by case basis, and the jurisprudence of the Federal Courts gives sufficient guidance for the RPD in determining whether a refugee claimant should be excluded under Article 1Fc) of the Convention.
[39] For these reasons, the application for judicial review is dismissed and no question will be certified.
ORDER
THIS COURT ORDERS THAT:
- The application for judicial review be dismissed and that no question be certified.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILENO.: IMM-4920-05
STYLE OF CAUSE: AMIT CHOWDHURY
v.
MINISTER OF CITIZENSHIP ANDIMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: JANUARY 26th, 2006
REASONS FOR ORDER ANDORDER OF THE HONOURABLE
MR. JUSTICE SIMON NOÊL
DATED: February 7th, 2006
APPEARANCES:
Me PIA ZAMBELLI FOR THE APPLICANT
Me FRANÇOIS JOYAL FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
ME PIA ZAMBELLI FOR THE APPLICANT
MONTREAL, QUEBEC
MR. JOHN H. SIMS FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA