Date: 20001102
Docket: IMM-1112-99
BETWEEN:
MIZANUR RAHAMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
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 Refugee Division of the Immigration and Refugee Board , dated February 18, 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 hearing before a newly constituted panel of the Board.
FACTS
[2] The applicant, a 26 year old citizen of Bangladesh, is claiming refugee status on the basis of a well-founded fear of persecution because of his political opinions.
[3] The applicant became a member of the youth wing of the Bangladesh Nationalist Party (BNP), called the Jatiyatabadi Dal (JJD) in February 1989.
[4] In March 1990, the applicant alleges he was attacked by Awami League (AL) hooligans and subsequently complained to police to no avail.
[5] In July and September, the claimant alleges he was beaten by AL and Jatiya Party (JP) supporters. Once again, a complaint to the police produced no results.
[6] In October 1990, the applicant alleges that the police beat him during a protest march against the government.
[7] During the parliamentary elections of 1991, the claimant alleges he was beaten with hockey sticks at the hands of AL goons. No arrest was made for this attack.
[8] Again in August 1992, the claimant alleges he was attacked by AL goons but the police were unable to arrest them. However, in a similar incident in February 1993, the police quickly responded.
[9] In April and May 1994, goons allegedly attacked the applicant along with other supporters of the JJD. The police responded to complaints following this incident.
[10] In September 1995, after the call of a 72-hour strike, AL goons exploded a bomb near the local offices of the local branch of the JJD in the applicant's electoral district. The applicant did not suffer any harm from this incident.
[11] In February 1996, AL goons attacked the election camp where the claimant was working on election day.
[12] During the electoral campaign of June 1996, the claimant alleges that the kiosk at which he had hoped to sell watches was vandalised by AL goons. The claimant alleges that police asked for bribes in order to take action.
[13] The applicant states that he became part of a list of individuals suspected by police of terrorist activities. Fearing for his life, the applicant fled Bangladesh for Canada.
THE DECISION OF THE BOARD
[14] The essence of the Board's decision is contained in the following paragraphs, beginning at page two of its reasons:
| The claimant alleges that it is impossible to obtain protection in Bangladesh because the police defend the government in power, and there is also the problem of protection. Yet, when the claimant was asked why he did not get any help between 1991 and 1996 when his BNP party was in power, he stated that he did not know why, then said that goons went into hiding and that the police was unable to find them. In this respect the panel would like to recall the Federal Court of Appeal decision of Villafranca which talks about the adequacy of protection. It states: |
| No government that makes any claim to democratic values or protection of human rights can guaranty the protection of all its citizens at all times. Thus, it is not enough for a claimant merely to show that his government has not always been effective at protecting persons in his particular situation. |
| Furthermore, when the assailants cannot be identified, this renders the work of the authorities, which would provide protection, much more difficult. |
| The panel then asked him on what he based himself to state that the police was looking for him for terrorist activities. The claimant replied that he learned about it through his mother. When asked for the details of how he got on this inquisition list, the claimant was unable to furnish any reasonable answer. Furthermore, when asked if other members had also been included in this list, he responded affirmatively and said that the members of the executive committee of his branch were all hiding because of this. Yet, exhibit P-3, which is a letter of the JJD Mirpur Branch, where the claimant was an executive member, makes no mention of the associated problem with the police, be it of the claimant, be it of all the members of the executive committee. When asked why this was not mentioned, the claimant did not give any explanation. |
| During the testimony, the claimant also said that in Mirpur, there were not any problems with violence among his political party and others. Yet, the documentary evidence contradicts this allegation. Frequent clashes and violent attacks by local supporters of one group against another, are a common occurrence. With regards to this issue, the claimant only after confrontation did he say he was not present at the beginning of September 1995 when there was a general strike in Mirpur and only when asked repeatedly and confronted with the documentary evidence, did the claimant acknowledge that he had heard of the clashes between the JJD and the AL which led to the killing of three AL supporters. The panel interprets this as an element which undermines the credibility of the claimant. In that, it demonstrates the selective character in answering questions put forth by the Board and only when challenged with contradictory evidence, thus the claimant then decides to state the truth. |
| Another issue for which the Panel did not receive reasonable explanation, is exhibit P-4. In this lawyer's letter, the lawyer mentions information from the mother of the claimant and that the claimant himself had not varied. The lawyer is basically acting as a reporter of what the mother of the claimant has said. Based on our specialised knowledge, and the other lawyer's letters seen, we give little probative value to this document since the lawyer himself adds no merit to what is contained in the PIF. Furthermore, the lawyer completely neglects to state problems which the claimant had in 1994, and for which his personal services had been requested and received by the claimant for similar political problems. |
| There is another issue which the panel would like to address that is exhibit P-8 which is a watch with the picture of the BNP leader. The claimant said that one thousand watches were ordered for the company owned by his mother and his maternal uncle and for which he worked. He was also asked if other types of watches were made. The answer was affirmative. When the claimant was asked if the watches made were all made with the same materials, he responded that watches made with the Japanese materials were superior to those made with materials coming from Hong Kong. When asked if facsimiles or counterfeit watches were made, the claimant responded that watches which were made with materials from Japan had a higher price tag and that look-alikes made with materials coming from Hong Kong had another price. When asked if this, in his opinion, was illegal with regards to patent laws, he responded that it was not, because the ones that were look-alikes were not priced the same. Although this issue is not per se related to the claim of refugee status, it does offer insight as to the selective interpretation of facts on the part of the claimant. There is another aspect to this claim which is incomprehensible and for which the claimant gave no explanation. The claimant was allegedly repeatedly harassed and beaten from 1990 to 1996 particularly when his party was in power. Yet, he never thought of leaving the country. He was apparently content during this period to stay in his country and be beaten by the opposition but see his party in power. The minute his party lost the election, he alleges that the police started looking for him. This version is not substantiated by facts and even the exhibits presented by the claimant raise doubts as to the actual personal situation of the claimant in Bangladesh. |
STATUTORY PROVISIONS
Immigration Act, R.S.C. 1985, c. I-2
| "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
| « réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays don't elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci don't le texte est reproduit à l'annexe de la présente loi. |
(3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution.
(3) Une personne ne perd pas le statut de réfugié pour le motif visé à l'alinéa (2)e) si elle établit qu'il existe des raisons impérieuses tenant à des persécutions antérieures de refuser de se réclamer de la protection du pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée.
Federal Court Act, R.S.C. 1985, c. F-7
| 18.1 (4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. |
| 18.1 (4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_: a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter; c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. |
ISSUES
[15] The following issues are raised by this application for judicial review:
| (1) Did the Board err by making an adverse finding of credibility in an arbitrary manner or without giving reasons? |
| (2) Did the Board ignore evidence or err in assessing the evidence, inter alia, that the treatment the applicant received in Bangladesh was persecutory? |
| (3) Did the Board make a reviewable error of fact or law in determining that the applicant had not established a well-founded fear of persecution as required by subsection 2(2) of the Act? |
THE POSITIONS OF THE PARTIES
Applicant's Position
[16] The applicant submits that the vast majority of adverse findings made by the Board in this case are made without regard to the evidence. Specifically, the applicant argues that it is apparent from its reasons that the Board overlooked important evidence, namely the applicant's testimony that the police did arrest some of the people who attacked him while his party was in power.
[17] Therefore, it is the applicant's position that it was arbitrary for the Board to conclude that the applicant's credibility was undermined by his allegation that opposition members do not benefit from police protection while admitting that he did not receive adequate police protection while his own party was in power.
[18] Furthermore, the applicant argues that his explanation that the police were sometimes unable to arrest his attackers cannot reasonably be said to undermine the credibility of the applicant's contention that the police are willing to protect ruling party members, but unwilling to protect opposition members.
[19] Secondly, the applicant refutes the assertion by the Board that he was unable to provide a reasonable explanation as to how his name would have appeared on a list of terrorists after the Awami League was elected in the 1996 general elections.
[20] The applicant submits that he did furnish an explanation, namely that his political enemies, whom are now in power, influenced the police to put his name on the list in order to exact revenge on him. He argues that this explanation is perfectly plausible in the Bangladesh context.
[21] Thirdly, the assertion by the Board that the applicant was engaging in a "selective interpretation of the facts" when answering questions is totally unfair and untrue. For example, the question of whether the applicant's political party had committed violence when it was in power led the Board to wrongly conclude that the applicant would only admit violence by his party's members when confronted with documentary evidence.
[22] Referring the Court to the transcript of the hearing, the applicant argues that he volunteered the information that he was aware that some members of his party were violent. It is submitted that the Board arbitrarily concluded that his credibility was undermined by his refusal to admit that members of his party were violent.
[23] On the issue of the applicant's family watch company, it is submitted that the Board unfairly accused the applicant of "selective interpretation" by raising concern as to whether they were violating patent laws by selling look-alike brand name watches.
[24] The applicant submits that it was unreasonable for the Board to interpret the applicant's statement that the selling of a look-alike watch at lower prices did not violate the patent laws as "selective interpretation". This answer may not have reflected its view, but the applicant argues that it was nevertheless not an evasive answer.
[25] With respect to the letter from the applicant's lawyer in Bangladesh, it is submitted that the Board ignored evidence because it failed to mention that the applicant had consulted with him about a beating in1994 while his party was in power.
[26] The applicant argues that the consultation in 1994 about the beating was irrelevant and should not be used by the Board to undermine his credibility. This follows from the decision of the Federal Court of Appeal in Owusu-Ansah v. M.E.I. (1989) 8 Imm. L.R. (2d) 106 (F.C.A.) which established that if the applicant himself had failed to volunteer irrelevant information, it would not be fatal to his credibility.
[27] Finally, with regard to the Board's assertion that it was incomprehensible for the applicant to have stayed in Bangladesh from 1990 to 1996 if he were continually being harassed and beaten, the applicant submits that he was never given the opportunity to address this issue. Therefore, this point should not form the basis for an adverse finding by the Board.
Application of Subsection 69.1(9.1) of the Act
[28] The second issue raised in this application is that the Board misapplied subsection 69.1 in determining that he had no credible basis for his claim. It is the applicant's position that the facts of his case did not give rise to a finding that he had no credible basis to his refugee claim, hence the Board should not have invoked this subsection.
[29] It is the submission of the applicant that subsection 69.1 should be given a purposeful interpretation in accordance with the overall scheme of the Act. To this end, the term "no credible basis" must be interpreted as "manifestly unfounded".
[30] The applicant argues that there is an important distinction to be made between a claim that is clearly abusive or manifestly unfounded and one where the Board has made a finding that the claimant is not credible. To suggest that the two are the same, in the applicant's view, is to say that adverse findings of credibility by the Board are not subject to judicial review.
[31] In the alternative, the applicant argues that, at a minimum, it was mandated under subsection 69.1 that the Board give written reasons for its decision against the claimant. The fact that the Board found the applicant himself not to be credible does not negate the other evidence before the Board at the hearing.
[32] In summary, the applicant argues that the Board should have been clear in its decision that it examined all of the evidence before arriving at a finding that there was no credible basis for the claim. Having not done so, the applicant argues that the Board made a reviewable error of law in applying subsection 69.1.
Respondent's Submissions
[33] The respondent submits that it was well within the discretion of the Board to make an adverse finding of credibility after considering the documentary evidence and the testimony of the applicant.
[34] Furthermore, the Board cited several inconsistencies and contradictions in the applicant's testimony that led it to conclude he was not credible. Specifically, the Board found that the essential elements of the applicant's testimony were either implausible or contradictory in light of the documentary evidence.
[35] The respondent refers to the three pieces of documentary evidence attached to his supplementary memorandum in support of the argument that the Board was confronted with documentary evidence which contradicted the testimony of the applicant and thus could only have concluded that the applicant was not credible.
[36] The respondent emphasizes that the lack of credibility of the applicant was central to the Board's decision that the applicant had failed to establish a well-founded fear of persecution based on political opinion.
[37] On the issue of the application of subsection 69.1 of the Act, it is the position of the respondent that the Board correctly applied this provision and gave adequate reasons in its decision for the finding that the applicant had no credible basis for his claim. Therefore, no judicial intervention by this Court is warranted.
ANALYSIS
The Issue of Credibility
[38] It is trite law that the Board has the discretion, and indeed is in the best position, to assess the credibility of an applicant: Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.).
[39] In Giron v. M.E.I. (1992), 143 N.R. 238 (F.C.A.), the Court of Appeal stated the following on the issue of adverse credibility findings:
| [the CRDD] ...chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies, and evasions, which is the heartland of the discretion of triers of fact, but rather on the plausibility of the claimant's account in the light of extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which involve the drawing of inferences, which triers of fact are in little, if any, better position than others to draw. |
[40] This issue was addressed again in Rajaratam v. M.E.I. (1991), 135 N.R. 300 (F.C.A.) and in Aguebor v. M.E.I. (1993), 160 N.R. 315 where the Court stated:
| It is correct, as the Court said in Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding on non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility". |
| There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on the appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. |
[41] This Court has consistently deferred to findings of credibility made by the Board unless they are clearly made without regard to the evidence: Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.).
[42] In the case at bar, the Board referred to several inconsistencies in the applicant's testimony to support its finding that the applicant lacked credibility. For example, the Board cites specific contradictions in the documentary evidence presented at the hearing and the testimony given by the applicant: his assertion that in Mirpur there were not any problems with violence among his political party and others, his assertion that members of the executive committee of the JJD Mirpur Branch were all in hiding because the police were looking for them for terrorist activities, and his reluctance to acknowledge the clashes between the JJD and AL which led to the killing of three AL supporters.
[43] In order to determine whether the Board erred in making an adverse credibility finding based on these alleged inconsistencies and contradictions, I have thoroughly reviewed the documentary evidence provided.
[44] In the document entitled Bangladesh: Chronology of events January 1994 - December 1995, several of the central arguments raised by the parties in this application are discussed. Firstly, the author states that the most significant development during that time period was the opposition boycott of parliament, the resignations of most opposition MPs, and the frequent violent demonstrations and general strikes aimed at Prime Minister Zia to step down.
[45] Secondly, the author indicated that there was a significant increase in religious fundamentalism which was evidenced by the growing strength of conservative Islamists who were demanding the enactment of a blasphemy law, and were responsible for attacks on NGOs that provide assistance to women and the poor.
[46] Looking specifically at the allegations of the applicant against the documented events in this chronology, the applicant asserts that the AL goons exploded a bomb near the local offices of the JJD in the applicant's electoral district but that he was not harmed. The documentary evidence indicates that fifty people were injured in violent incidents on the first day of a nationwide general strike called by the main opposition parties to demand the resignation of the Prime Minister.
[47] The evidence elaborates on the incidents surrounding the general strike stating that on the second day three Awani League members were killed and 10 to 18 wounded when JCD activists open fire on an AL rally in Mirpur.
[48] With regard to the applicant's allegation that there were not any problems in Mirpur with violence among his political party and others, the documentary evidence indicates that in July 1995 at least one person was killed and as many as fifty injured when police used tear gas and shotguns to separate clashing AL and BNP activists in Dhaka.
[49] Again in September 1995, the documentary evidence reveals that three people are killed and up to 18 wounded when JCD activists open fire in an AL rally in Mirpur. These are only a few of the many examples contained in this document which illustrate the constant clashing between AL and BNP activists during the years leading up to the applicant's departure from Bangladesh.
[50] The applicant's testimony does contradict the documentary evidence which was submitted by the respondent and clearly this is the basis for the Board's conclusion that the applicant's claim was not credible.
[51] After reviewing the documentary evidence before the tribunal and the transcript of the hearing, I am of the opinion that it was not unreasonable for the Board to conclude that the applicant was not credible. Therefore, no judicial interference is warranted on this basis.
Application of Subsection 69.1(9.1) of the Act
[52] Subsection 69.1(9.1) of the Act states:
(9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim.
(9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut.
[53] In Mathiayabaranam v. M.E.I. (1995), 94 F.T.R. 262, this Court held that given the serious consequences of a no credible basis finding, the Board was required to provide the applicant with notice that the issue was being considered so as to have an opportunity to make submissions. This decision was later overturned by the Federal Court of Appeal when it ruled that an applicant has no right to any extra notice of the possibility of a no credible basis finding.
[54] While the applicant has no right to make submissions on this point, the effects of a no credible basis finding are serious as the applicant is not entitled to the quasi-appeal process afforded to Post-Determination Refugee Claimants in Canada. Only a seven day stay of removal is given, and therefore, such a finding is of high importance to all claimants.
[55] The distinction between credibility and a no credible basis finding is central to the factual situation presented by this applicant. This issue was addressed in Abdulhakim Ali Sheikh v. Minister of Employment and Immigration, [1990] 3 F.C. 238 at page 244 where the Court stated:
| The concept of "credible evidence" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself ... a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. |
| ... even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. |
[56] After having assessed the evidence, the Board found that the applicant himself lacked credibility, and secondly, that there was no documentary evidence to support the applicant's assertions upon which he based his claim. Thus, it concluded that there was no credible basis for his claim.
[57] At paragraph 46 of the applicant's Memorandum of Fact and Law, the applicant argues that the Board was required to give an explanation for its finding that no credible or trustworthy evidence existed upon which to found this claim for refugee status.
[58] With all due respect, I find that the Board was clear in stating that only after having heard the claimant's testimony, the observations of the Refugee Claim Officer, and after carefully reviewing and analysing the evidence, it found that there was a general problem with the claimant's credibility.
[59] More specifically, the Board found the applicant lacked credibility in demonstrating his level of implication in the BNP, a crucial factor in his claim. The applicant attempted in both his PIF and in his testimony to illustrate a significant level of involvement in the BNP and the associated problems this now created for him in Bangladesh.
[60] I must note, however, that the assessment by the Board on the issue of police protection illustrates a lack of appreciation of the circumstances in Bangladesh as they are described in the documentary evidence.
[61] In particular, the evidence states that in July 1995 plainclothes policemen had reportedly organized attacks on the Dinajpur Press Club and four local newspapers in retaliation for newspaper reports on "corruption, repression and maleficence" in the police force and direct administration.
[62] In my view, it is entirely conceivable, in these circumstances, that the applicant would obtain police protection at one time and not another as he testified. The Board states that the applicant was unable to answer the question of why the applicant was unable to get any protection although his party was in power yet he stated that the police only protected the government.
[63] It appears to me that the applicant's testimony on this issue is credible as he states that he was able to obtain police assistance in some instances but was unsuccessful in obtaining their help at other times. This does not seem implausible given the circumstances in Bangladesh at the time.
[64] However, I do not believe that this fact was critical to the applicant's case nor was it central to the Board's determination that the applicant lacked credibility. The Board cited numerous factors in its reasons which caused it to find that the applicant was not credible and I have found these to be justified in light of the documentary evidence.
[65] The applicant argues that to invoke subsection 69.1(9.1) every time the Board makes a finding of adverse credibility is to frustrate the intent of Parliament in enacting this provision.
[66] I am of the view that the Board based its no credible basis finding primarily on the applicant's lack of credibility resulting from the numerous inconsistencies and implausibilities, as well as the vague nature of the applicant's testimony, and of the lack of any concrete evidence to support his fear of persecution.
[67] The documentary evidence did not substantiate many of the allegations made by the claimant and the applicant was unable to provide any evidence to support his assertion that his personal situation in Bangladesh is such that he would face a serious possibility of persecution if he were to return.
[68] The Board states in its reasons that the applicant claims he was harassed and beaten from 1990 to 1996 and yet he never attempted to leave the country. During this time, the applicant's party was in power and he was continually active in the BNP activities, specifically the JJD Mirpur Branch. When the BNP loses the general elections of 1996, the applicant immediately flees the country and claims refugee status.
[69] In light of the documentary evidence, the Board found it inconceivable that he was harassed and beaten for years but never attempted to leave, and the moment his party loses power he flees the country fearing his opponents are now going to exact revenge upon him.
[70] Having concluded that his credibility was lacking and that no documentary evidence existed to support the allegations of his personal situation in Bangladesh, the Board determined his claim had no credible basis in accordance with subsection 69.1(9.1) of the Act.
[71] I have thoroughly reviewed the testimony of the applicant as well as the exhibits which the applicant submitted in support of his application and the documentary evidence produced by the respondent. I am satisfied that the Board was not unreasonable in concluding that the applicant has no credible basis for his claim.
[72] For these reasons, the application for judicial review is dismissed.
[73] The applicant submitted two questions for certification:
| Is a simple finding that a refugee claimant is not a credible witness sufficient to trigger the application of subsection 69.1(9.1) of the Immigration Act? |
| In light of the Supreme Court decision in Baker v. M.C.I., is the Refugee Division required to provide written reasons for having formulated an opinion under subsection 69.1(9.1) that a refugee claimant does not have a credible basis for his or her claim? |
[74] I am satisfied that the first of the two questions should be certified as it raises a serious question of general importance as to the meaning and the application of subsection 69.1(9.1) of the Immigration Act and is in accordance with the reasons of Mr. Justice Strayer in the case of Gradison v. M.C.I., A-332-00, August 25, 2000 at page 3 as to when a question should be certified.
[75] The facts of the Baker v. M.C.I. case are of absolutely no relevance to the facts of the case before me. The Baker case should and must be restricted to humanitarian and compassionate applications where there is an issue of Canadian born children.
"Max M. Teitelbaum"
| J.F.C.C. |
Calgary, Alberta
November 2, 2000