Date: 19991108
Docket: IMM-740-99
Entre :
Emdad Hussain
Demandeur
-et-
Ministre de la Citoyenneté et de l"Immigration
Défendeur
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application for judicial review, pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (Act) of a decision of the Immigration and Refugee Board, dated January 12, 1999, wherein the applicant was found not to be a Convention refugee. The applicant seeks an order quashing this decision and remitting the matter back for a new hearing.
[2] In that the applicant is of the English language, these reasons are in English so that he may understand my reasoning.
FACTS
[3] The applicant, a citizen of Bangladesh, was born on March 7, 1956. He arrived in Canada on October 5, 1995 and claimed refugee status upon his arrival.
[4] The applicant"s hearing before the Refugee Division was held on November 30, 1998 at which time he alleged a well-founded fear of persecution caused by his past political activities.
[5] The applicant alleged that he was a supporter of the Jatiya Party from the time it was created in 1986 and became an active member in 1989 when he joined the Jatiya Party"s Sunamgonj Upazilla Unit.
[6] While the applicant was a businessman in the transportation field at the time, he also worked in numerous capacities doing political work for the Jatiya Party.
[7] In December 1990, he was attacked by members of the Awani League (AL) and the BNP (Bangladesh National Party). Subsequent to this, during the time of the 1991 election campaign, the claimant alleges that he and five others were chased and beaten by BNP activists.
[8] He was elected General Secretary to the executive committee of the Union Parishad unit of the Jatiya Party in January 1992, and later that year was a victim of abuses by BNP goons.
[9] In June 1993, the applicant alleges he was arrested, questioned and beaten by police and finally sent to jail for three months under the Special Powers Act. Several months after being released, the applicant alleges he received threats by BNP goons.
[10] The applicant alleges that in 1995 he was a victim of extortion by members of the Jathiothabadi Chatra Dal who were backed by the BNP. Subsequent to this, the BNP goons destroyed three ferry boats owned by the applicant.
[11] On June 27, 1995 the applicant was involved in organizing a strike with the objective of putting pressure on the BNP government to release the Jatiya Party"s Chairman, Hussain Mohammad Ershad. As part of the strike, a protest march took place and he was attacked by BNP goons, resulting in the applicant being injured and going into hiding.
[12] On the evening of the march, the applicant alleges that his home was vandalized and his wife was threatened by BNP goons, and that on June 29, 1995, the police raided his house with the aim of arresting him. He further alleges that the police raided his home several more times in July 1995 and questioned his family members regarding his whereabouts.
[13] The applicant alleges that in August 1995, BNP goons attacked his employees and hijacked three ferry boats. This led to the applicant"s decision to leave his country and come to Canada.
THE DECISION OF THE REFUGEE DIVISION
[14] The Board considered the testimony of the applicant and concluded he was not a Convention refugee. The essence of the Board"s decision is contained in the following passages:
| The panel examined the issue of whether the claimant still had a well-founded fear of persecution in light of political changes which took place in the country. The claimant based his claim on a number of incidents involving the BNP, which held power and the Awani League who was the main party of opposition. Since the alleged incidents the party forming the government in Bangladesh has changed. As of June 1996 the Awani League is the governing party. The BNP is no longer in power. There is nothing in the documentary evidence that would lead the panel to believe that members of the Jatiya Party are being persecuted by the Awani League. In fact the documentary evidence shows that the Jatiya Party signed a truce and is supporting the Awani League. Exhibit A-3, 10.19, which the claimant was confronted with during the hearing is entitled "JP to Support AL govt for 5 yrs: Ershad". The newspaper article speaks of a commitment by the Jatiya Party chairman to extend the support of the party to the Awani League for a five year period. The RCO asked the claimant whether he was aware of the support pledged by his party leader, he said "no our leader never said this." His answer shows an ignorance which may be explained by the fact that the claimant left his homeland before the pledge of support was made. Nevertheless the new partnership is proof that the political situation has indeed changed in Bangladesh and that, if the claimant was to return he would not be in danger of persecution. |
| The panel believes that the claimant, at the time of the hearing would not be persecuted if he were to return to his homeland. The panel applied the tests outlined in the cases of Yusef and Rahman and examined the facts in light of the evidence. The panel concludes that at the time of the hearing the claimant no longer had a well-founded fear of persecution. |
| The panel also examined the allegations that the claimant was and is still being sought by the police. When asked whether there were any charges laid against him, he responded "no". The claimant claims he fears arrest under the provisions of the Special Powers Act. Firstly, this allegation was not substantiated by the claimant during the hearing. Secondly, the documentary evidence states that: " nobody is under threat merely because of membership in an opposition party" and "there would be no grounds to fear arrest on return to Bangladesh unless a person has been involved in criminal activities." The claimant does not fall into this category. Furthermore, the documentary evidence states that persons sought under the Special Powers Act have the opportunity of defending themselves in court and have the same rights in law as all other citizens. The documentation also states that the legal system is relatively independent from the government. Notwithstanding the fact that the government sometimes uses the Special Powers Act to harass and intimidate its political opponents, the courts have rejected the charges in the vast majority of cases. The panel dismisses the allegations of the claimant and attaches no evidentiary weight to this part of the story. |
ISSUES
| [15] The issues raised by this application are the following: |
| (1) Did the Board commit a reviewable error in concluding that due to the present day situation in Bangladesh, the applicant"s fear of persecution was unfounded? |
| (2) Did the Board commit an error of law in its finding that the applicant"s fear of arrest under the Special Powers Act was unsubstantiated? |
ANALYSIS
Fundamental changes in Bangladesh"s political climate
[16] Beginning with the first issue, the changes which have occurred in the applicant"s country, I turn to the evidence upon which the Board based its finding that the applicant no longer had any reasonable fear of persecution. The applicant, a citizen of Bangladesh, left his country in 1995 and immediately claimed refugee status in Canada.
[17] The circumstances in Bangladesh at the time the applicant left were very different from those that exist today. Less than a year after the applicant"s departure from his country, the BNP lost power and a new government was formed by the Awani League.
[18] This important turn of events occurred in June of 1996 and remains the foremost reason for the Board"s decision that the applicant will not be persecuted should he return to his country today.
[19] Considering the evidence in support of this assertion, the Board pointed to the fact that the leader of the Jatiya Party signed a truce with the Awani League evidencing a partnership between the party in government and the party in which the applicant is a member.
[20] The Board referred to the test set out in Yusuf v. Minister of Employment and Immigration (1995), 179 N.R. 11 (F.C.A.) at page 12 by Hugessen J.:
| We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant"s country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful" "effective" or "durable" is only helpful if one keeps in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s.2 of the Act: does the claimant now have a well-founded fear of persecution? Since there was in this case evidence to support the Board"s negative finding on this issue, we would not intervene. |
[21] Applying this reasoning to the facts of the case at bar, the Board found that the applicant was unable to establish that there was a reasonable and objectively foreseeable possibility that he would be persecuted upon his return to Bangladesh at the time of the hearing. Therefore, in answer to the question posed by section 2 of the Act, namely whether the applicant has a well-founded fear of persecution, the Board concluded in the negative.
[22] I believe it is important to note that the Board emphasized that the applicant may very well have had a genuine fear of persecution should he return to his country, however, this may have stemmed from the fact that he was unaware of the truce signed by his leader with the leader of the new governing party, the Awani League.
The applicant"s fear of arrest under the Special Powers Act
[23] Moving on to the second submission of the applicant, that he has an objective fear of being arrested under the Special Powers Act if he returned to Bangladesh, the Board referred to the applicant"s statement that there were no charges laid against him despite his allegation that he was still sought by police.
[24] On this point, the Board carefully assessed the nature of the evidence surrounding the arrest of persons under the Special Powers Act and the legal process which occurs pursuant to charges under this Act. I find that the Board did not commit any reviewable error in concluding that the applicant had no reasonably foreseeable basis for fearing arrest by the police under this Act. The claimant has not been involved in criminal activities and would not be subject to arrest due to his membership in an opposition party. Thus, there is no basis for his allegation that he is still sought by police and likely to be arrested under the provisions of the Special Powers Act.
[25] After having carefully reviewed the Board"s reasons and the evidence presented before it, I do not find that any patently unreasonable error, within the meaning of paragraph 18.1(4)(d ) of the Federal Court Act, R.S.C., 1985, c. F-7 was committed in drawing its conclusion of fact. It is well supported by both the oral testimony and documentary evidence presented at the hearing.
The Board"s Assessment of the Evidence
[26] It is well established that a detailed analysis of the evidence is critical in cases where changes in circumstances in the applicant"s country are at issue. This is necessary to ensure that the changes are significant and lasting enough to cause the applicant"s fear of persecution to be unwarranted.
[27] Having said that, the Board is not required to refer to all the documentary evidence considered by it providing it arrived at a reasonable conclusion which is supported by the facts. In this instance, the Board referred to the evidence presented by both parties and weighed it accordingly. I am satisfied that there are no grounds to warrant judicial interference in this matter especially when it is obvious that the Board referred to the evidence, the Country Reports for 1997, in its decision. It is not necessary to name the document when it is obvious from where the evidence came.
| [28] For the foregoing reasons, the application is dismissed. |
| [29] Neither party had a question to submit for certification. |
"Max M. Teitelbaum"
| J.F.C.C. |
Ottawa, Ontario
November 8, 1999