Date: 20000531
Docket: IMM-2606-99
BETWEEN:
SAMRAT SHAHNAZ
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, for leave and judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated May 3, 1999 wherein it was determined that the applicant is not a Convention refugee.
[2] The applicant, Samrat Shahnaz, is an 18 year old citizen of Bangladesh. He arrived in Toronto on September 19, 1997 and stated his intention to claim refugee status on September 29, 1997 at the Canada Immigration Centre in Etobicoke, Ontario. He based his claim on a fear of persecution in his country on political grounds. He testified that he had been persecuted because of a recruitment campaign by the Islami Chattra Shibir ("ICS"), the student wing of the Jamaat-e-Islami. The persecution was due to his refusal to join the group. He further alleges that he was unable to obtain state protection.
[3] The Board determined that this applicant was not credible and, on that basis, persuaded themselves that he was not a Convention refugee and that there was sufficient protection provided by the state.
[4] In his Personal Information Form ("PIF"), the applicant indicated that as of January, 1997, while a student in a college located approximately four hours away from his hometown, he was harassed by members of the Islami Chattra Shibir who were conducting a recruiting campaign on campus. He said he politely refused but was attacked on March 12, 1997. He attended at the police station to report the incident stating that he recognized two of the attackers and gave their names to the police. He reports in his PIF that the police informed him there was nothing they could do. He then returned to hospital for approximately two weeks to convalesce.
[5] The applicant"s PIF further reveals that in April of 1997, his parents were harassed at home several times and he personally received further threats from the Islami Chattra Shibir. He once again went to the police for help but, as previously, nothing was done.
[6] In May of 1997, the applicant returned to write his final exams but because of further threats and problems he experienced with the Islami Chattra Shibir he had to leave and was never able to conclude his finals. He reported the matter to the college authorities but they did not wish to interfere. He then contacted the ward commissioner to explain his problems but this did not prove helpful and he returned home to his family in Khulna.
[7] In June of 1997, he was attacked again outside his home. He was not seriously injured and was able to flee. The parents again went to the police for help but no action was taken. In July, there was further harassment on his family. He decided to leave Bangladesh and went to Dhaka. He remained with an uncle in Dhaka and eventually left the country in September.
[8] A careful review of the transcript indicates that he confirmed the attack of March, 1997 and that he gave the name of his attackers to the police in a report made on the 15th of March. After further threats to both he and his family, again his father went to the police and nothing was done. He confirmed he was being harassed at school in May when attempting to write his final exams. He also confirms, during oral testimony, the attack outside his home in June. He said no report was filed because the police could do nothing.
[9] Counsel for the applicant contends that the Board ignored the evidence before it or misconstrued the evidence in writing their decision in order to make an adverse finding of credibility. He also suggests that a psychologist report, which was submitted at the time of the hearing indicating that this applicant was suffering with severe anxiety, had not been referred to by the Board in its assessment as to credibility.
[10] I carefully reviewed the testimony as well as the decision rendered by the Board and I am satisfied that the Board either exaggerated the conflicts between his testimony and his PIF or completely misinterpreted what was before them. They apparently were concerned that the two boys" names that he had given the police were not on the report prepared by the authorities and which he had submitted. I am satisfied that if they were not on the report, it was probably purposely omitted by the police. The panel points out and I quote:
| ...the claimant stated further that the police actually read the statement back to him, in the presence of his brother, but he did not amend the report to include the names of the culprits, nor did he ask that an First Information Report (F.I.R.) be filed instead of a General Diary. The claimant said he did not ask that the General Diary be amended to include the names of the culprits because he was feeling sick at the time. |
[11] In testimony, there is no evidence whatsoever that he suggested that the police read the complaint and information to him out loud. As a matter of fact, the evidence was that it was prepared by his father and he did not see it or read it because he was not well.
[12] The Board continues:
| He said further that it was this inaction on the part of the police that formed his opinion that the Bangladesh police are not willing to protect him. |
[13] The panel determined that the applicant was not telling the truth about the incident, particularly with respect to information he had given the police so that they could be of assistance. The conclusion drawn by the Board, that the applicant could not be afforded police protection because of the lack of information, directly contradicts his testimony and that of the recital in the PIF when it is clear that on at least three or four occasions he and his father and the ward commissioner went to the authorities and each time they were told they could not be of assistance. To suggest that the applicant"s own documentary evidence (PIF) does not support the allegation of lack of protection without any specific reference by the Board to the PIF evidence leaves me at a loss to accept the panel"s version of the events.
[14] In paragraph 2, also under the heading credibility, the Board wrote as follows:
| The claimant also testified orally to being attacked again in May of 1997 when he went to write an examination in Barisal. |
[15] That is incorrect. In both his PIF and in his oral testimony, the applicant quite clearly stated that when he went back in May to write his exams, he was not attacked but was harassed.
[16] In paragraph 3, under credibility, the Board wrote as follows:
| The claimant testified also to being approached by a member of the ICS when he and his parents applied for their Canadian visitors" visas in Dhaka. He initially told the panel that this incident happened in August of 1997. However, he changed his testimony during questioning by the RCO and stated that this incident took place in June of 1997. When confronted with this discrepancy, the applicant said that he might have said that it occurred in August, 1997, only because he would feel bad whenever people asked him about this incident. He then stated that the incident happened in June. However, when asked by the RCO to clarify once and for all as to when this incident actually took place, the claimant changed his evidence once again and said that it took place in August, 1997." |
[17] A review of the oral testimony would indicate that this claimant was less confused than the RCO. If there was any confusion, it was caused more by the questioning than it was by the answers given by this applicant. A reading of the transcript reveals that he handled this issue extremely well considering the difficulty of cross-examination he had been subjected to.
[18] When referring to state protection, the panel wrote as follows:
| The panel finds that it was totally unreasonable for the claimant to expect the police to resolve his problems with the ICS when, in fact, he was not providing them with such details as the names of his attackers. |
[19] I choose to accept the written declaration from the PIF as well as what he asserted orally before the panel; he did in fact give the two names to the police. If they chose not to include them in the information or complaint, it may have been that they were more reluctant to proceed with any or further investigation and for the panel to simply suggest that he had not provided the names appears inconceivable.
[20] The panel then further says:
| The panel further notes that the claimant"s parents could have easily served their own cause by hiring a professional lawyer to assist them in laying charges against the ICS and its members. |
[21] I find this to be an absolutely ludicrous comment. If the police cannot assist, how can an individual lawyer be expected to be of any value in such circumstances.
[22] I am satisfied that there was sufficient inconsistencies between the testimony, the PIF and the conclusions reached by the Board, that the matter should be returned for a rehearing before a differently constituted panel. Having determined as such, I will not comment further on other aspects that were raised during argument.
[23] It is trite law that the Refugee Board is in a better position to assess credibility of applicants before it and that this Court should not intervene unless the credibility findings are not supported by the evidence. As I have said earlier, I find that the Board"s findings are based on irrelevant considerations and that it ignored evidence which I feel is significant.
[24] The application is allowed. The matter is returned for a rehearing by a differently constituted panel.
JUDGE
OTTAWA, Ontario
May 31, 2000