Ottawa, Ontario, August 18, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
EVA MARIA ROZARIO
and
RAJ CLEMENT ROZARIO
Applicants
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Victor Rozario, his wife Eva Maria, and their son Raj Clement are Christians from Bangladesh. They claim status as Convention refugees and persons in need of protection. They testified before the Refugee Protection Division of the Immigration and Refugee Board (Board) that they had experienced persecution in Bangladesh because of their religious identity, and that they fear that members of a fundamentalist Islamic group will kill them if they return to Bangladesh.
[2] The Board accepted that the Rozarios were Christians from Bangladesh, but did not believe their evidence about what had happened to them in Bangladesh. The Board also found that after they left Bangladesh their failure to claim asylum in Bermuda was inconsistent with having a genuine, subjective fear of persecution. In the Board’s view, the Rozarios are economic migrants and their claim for protection was dismissed.
[3] On this application for judicial review of that decision, the Rozarios argue that the Board ignored evidence when it found that they face mere discrimination as Christians in Bangladesh and erred when it drew a negative inference from their failure to claim refugee status in Bermuda. For the reasons that follow, I find that the Board did not find that the Rozarios face mere discrimination in Bangladesh and so did not err as alleged. In the face of valid finding that there was no objective basis to their claim, any error with respect to the existence of a subjective fear of persecution was not material to the decision.
[4] To argue that the Board found that they face discrimination and not persecution, the Rozarios point to the following passage in the Board’s reasons:
[…] While the 2004 International Religious Freedom Report records increasing discrimination by the majority Muslim toward minority religions since the election of the BNP government in 2001, in particular the Hindu community which traditionally supports the opposition Awami League, it describes relations between the religious communities as “generally amicable”. Converts to Christianity from Islam would be at risk but this is not the situation facing the claimants. [footnotes omitted]
[5] On a fair reading of this passage and with respect to the whole of the Board’s reasons I do not agree that the Board found that what is being experienced by religious minorities in Bangladesh is discrimination. Rather, the Board quoted from an article in evidence before it which spoke of discrimination, and went on to conclude that the objective documentary evidence was inconsistent with the testimony of the Rozarios.
[6] Since the Rozarios had established that they were Christians from Bangladesh, the Board was obliged to consider, and did consider, whether the documentary evidence established that similarly situated Christians in Bangladesh face persecution. On the basis of the documentary evidence before the Board, it was reasonably open to the Board to find that the evidence by itself did not support a claim of persecution on account of religious identity. I have not been persuaded that in so concluding the Board ignored evidence or engaged in a cursory or highly selective review of the documentary evidence.
[7] As noted above, the finding that the claim to protection was not objectively well-founded was fatal to the application because the “well-founded fear” contemplated in the definition of Convention refugee requires an applicant to establish both an objective and subjective fear of persecution. It is, therefore, not necessary for me to consider if the Board erred in drawing a negative inference from the failure of the Rozarios to claim asylum in Bermuda. While it is acknowledged that Bermuda is not a signatory to the United Nations Convention Relating to the Status of Refugees (Convention), on the record is not clear what the effect at law is of Bermuda’s status as an overseas territory of the United Kingdom (a signatory to the Convention).
[8] For these reasons, the application for judicial review will be dismissed.
[9] For completeness, I note that in their further memorandum of argument the Rozarios raised two new issues: whether the Board’s credibly findings were perverse or capricious and whether there was a breach of procedural fairness because of the Board’s conduct in questioning the principal applicant first, as contemplated by the Chairperson’s Guideline 7. The credibility issue was abandoned during oral argument, and the argument based upon reverse order questioning was withdrawn.
[10] Counsel posed no question for certification and I am satisfied that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5964-05
STYLE OF CAUSE: VICTOR ROZARIO ET AL.
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 20, 2006
APPEARANCES:
DOUGLAS LEHRER FOR THE APPLICANTS
A. LEENA JAAKKIMAINEN FOR THE RESPONDENT
SOLICITORS OF RECORD:
VANDERVENNEN LEHRER FOR THE APPLICANTS
BARRISTERS AND SOLICITORS
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA