Date: 20040518
Docket: IMM-3719-03
Citation: 2004 FC 711
Ottawa, Ontario, Tuesday, the 18th day of May 2004
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
RAFIQUE ISLAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Rafique Islam is a citizen of Bangladesh, who asserts a well-founded fear of persecution in Bangladesh on the basis of his political opinion as a member of the Jatiya Party ("JP"). He also claims protection under section 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 because he would be subject to a danger of torture or to a risk to his life or to cruel and unusual treatment or punishment in Bangladesh. He brings this application for judicial review from the decision of the Refugee Protection Division of the Immigration and Refugee Board ("RPD") that he is neither a Convention refugee nor a person in need of protection.
[2] It was Mr. Islam's evidence that he feared both Awami League ("AL") and Bangladesh National Party ("BNP") goons who have targeted him for his work with the JP and his refusal to join their ranks. Mr. Islam gave evidence of violent attacks on him in 1997 and 2000.
[3] The RPD determined that Mr. Islam's evidence was not credible or trustworthy. With respect to the subjective basis of his fear of persecution, the RPD found that he delayed until December of 2000 leaving Bangladesh, notwithstanding incidents in 1997. The RPD also found that Mr. Islam delayed making his claim in Canada for refugee protection because Mr. Islam arrived in Canada on December 11, 2000, but did not make his claim until December 18, 2000. After making these findings, the RPD went on to note that the "final determinative issue" was the objective component of the well-founded fear of persecution. The RPD found that a number of credibility issues arose with respect to the objective component of Mr. Islam's claim.
[4] Mr. Islam asserts that the RPD committed a number of errors when it assessed the credibility of his evidence. On the view I take of this matter it is not necessary for me to deal with each error asserted.
[5] In finding that Mr. Islam's testimony was not credible or trustworthy, the RPD did not point to any inconsistencies, contradictions or evasions in his evidence. Rather, the conclusion was based upon the RPD's assessment of the plausibility of his evidence. The RPD was entitled to make its assessment on the basis of the plausibility of the evidence, provided that its findings were clearly set out and explained and were based upon criteria such as rationality and common sense. See: Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (C.A.). To be rational, plausibility findings must be based on consideration of the testimony against known or undisputed facts.
[6] The largest portion of the reasons of the RPD is directed to its analysis of the objective basis of the claim. Key to its determination that the objective basis of the claim was not established, and its determination that Mr. Islam's testimony about the objective basis of his claim was not credible, was the conclusion of the RPD that it was implausible that violent efforts would be made to recruit Mr. Islam at a time when the JP supported the AL. Reference was made by the RPD to documentary evidence to the effect that following the AL's election victory in 1996, the JP supported the AL in the hope of having its leader, Mr. Ershad, released from jail. To the extent that the plausibility finding was based upon assessment of Mr. Islam's testimony against documented facts, the plausibility finding can not be said to be patently unreasonable.
[7] However, in making this finding the RPD failed to deal with Mr. Islam's explanation that notwithstanding this alliance tensions remained at the local level and the local AL supporters continued to hold a grudge against him. Mr. Islam also testified that by 1997 JP support for the AL was wavering. The RPD simply dismissed this explanation by stating that it "did not find this a reasonable explanation". No reasons were given by the RPD for that conclusion.
[8] The documentary evidence before the RPD established that political competition in Bangladesh is vigorous and that violence is a pervasive feature of politics. Both opposition and ruling parties routinely use actual or threatened violence to achieve political ends. Political alliances are not long-lived. While the RPD cited documentary evidence that the JP had supported the AP following the 1996 election, the documentary evidence also established that by 1999 the JP leader had entered into an alliance with other opposition parties to pressure the AL government to step down. In the face of this evidence, it was a material error for the RPD to summarily dismiss without reasons Mr. Islam's explanation as to why AL goons would have targeted him in 1997 and 2000, particularly when the attack in 2000 occurred after the JP had joined an alliance against the AL.
[9] Mr. Islam testified that at various political gatherings of between 50 to 60 people he would give speeches, that he was the main speaker at a rally on February 21, 1999 and that he was one of a number of speakers at a rally held on September 22, 2000 in front of about 4,500 people. The RPD wrote that Mr. Islam testified that the BNP and the AL targeted him because he spoke out on many occasions in speeches made to crowds of 500 people. On that basis, the RPD concluded that it would only be reasonable to assume that speeches to such large crowds would attract the attention of the media, and it drew an adverse inference from the absence of such media reports.
[10] In so concluding, the RPD misstated Mr. Islam's evidence as to the size of the crowds. He never testified that he addressed crowds of 500 people. He testified that all but one or two speeches were made to groups of 50 to 60 people. It is not clear that the RPD would have drawn the same inference of implausibility if it had correctly stated Mr. Islam's evidence as to the size of the crowds he addressed. I note parenthetically that the relevant U.S. Department of State Report noted that all journalists practised some self-censorship and that journalists were attacked by government officials and political party activists in an effort to intimidate journalists. An Amnesty International report before the RPD noted that "[p]olice frequently attack demonstrators and in an attempt to hide their actions, they also beat the journalists reporting such protests". In view of evidence that casts some doubt about the state of media reporting, caution should be exercised when drawing inferences based upon what is or is not reported.
[11] The RPD also found it implausible that while Mr. Islam testified that there is an anti-state, anti-government political case filed against him and that there is a warrant outstanding for his arrest, Mr. Islam did not know the nature of the case against him. A letter he provided from a lawyer in Bangladesh was dismissed by the RPD as being an embellishment, self-serving and of dubious legitimacy because it did not mention the nature of the charge filed against Mr. Islam. In fact, the letter did state that the chief Metropolitan Magistrate's court in Dhaka had issued an arrest warrant in respect of Mr. Islam pursuant to subsection 54(B) of the Code of Criminal Procedure.
[12] The U.S. Department of State Report for 2001, in evidence before the RPD, states that citizens of Bangladesh can be detained for mere suspicion of criminal activity without formal charges or specific complaints being filed and that the legislation referenced in the lawyer's letter is used to harass and intimidate members of the political opposition. In the face of the evidence that formal charges or specific complaints need not be filed, it was patently unreasonable for the RPD to dismiss Mr. Islam's testimony and the lawyer's letter because they did not specify the nature of the case filed against Mr. Islam.
[13] These three errors go to the heart of the RPD's conclusion that Mr. Islam failed to establish the objective basis of his claim to a well-founded fear of persecution and failed to establish a risk to his life or to cruel or unusual treatment of punishment in Bangladesh. I am not satisfied that if the RPD had correctly appreciated the evidence before it, it would have necessarily reached the same conclusion. Because the decision of the RPD may well have been different had it not fallen into error, the decision will be set aside and the matter remitted for redetermination.
[14] Counsel posed no question for certification and no question arises on this record.
ORDER
[15] THE COURT THEREFORE ORDERS THAT:
1. The application for judicial review is allowed and the decision of the Refugee Protection Division of the Immigration and Refugee Board dated April 7, 2003 is hereby set aside.
2. The matter is remitted for redetermination before another panel of the Refugee Protection Division of the Immigration and Refugee Board.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3719-03
STYLE OF CAUSE: Rafique Islam v. The Minister of Citizenship of Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 6, 2004
REASONS FOR ORDER AND ORDER BY
THE HONOURABLE MADAM JUSTICE DAWSON
APPEARANCES:
Mr. Michael Crane FOR THE APPLICANT
Ms. Neeta Logsetty FOR THE RESPONDENT
SOLICITORS OF RECORD:
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT