Date: 20000824
Docket: IMM-3779-99
Between :
SHILA BRATA BARUA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated July 14, 1999, determining that he is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant, a citizen of Bangladesh, claims to have a well-founded fear of persecution because of his religion (Buddhism) and because of his membership in a particular social group (religious minority).
[3] The Board found the applicant not to be credible. Its doubts were based on the applicant's omission to mention in his Personal Information Form (PIF) that he tried to obtain police assistance after both the May 1994 kidnapping incident and the attack of February 15, 1996. In addition, the applicant wrote in his PIF that he did not have a passport of his own, but the evidence indicates that he had in his possession a valid passport issued in December 1995 by Bangladeshi authorities in the United States. According to the tribunal, the applicant was unable to explain why he travelled to Canada on a false passport when he had successfully obtained a United States visa with his own passport.
[4] The Board also did not believe that the applicant had a subjective fear of persecution. It noted that the applicant was in New York between October 1995 and January 1996. At this time, he willingly returned to Bangladesh despite the fact that he had lost his partnership and his children had been kidnapped.
[5] Moreover, while in New York, the applicant applied for permanent residence in Canada for himself and his wife. The Board expressed doubt about some aspects of these applications, in particular, the applicant's daughter's birth date was filled out incorrectly, his wife's application included her passport number despite the fact that she was not in the United States and the permanent address on his application was different from that on his wife's and the one in his passport.
[6] The Board also considered that the second time the applicant came to North America, he stayed in the United States for a few days. Although the applicant has a sister-in-law who is a resident of the United States, he did not claim refugee status.
[7] In addition, the Board held that even if it believed the applicant, the applicant failed to demonstrate that state protection was unavailable to him. The Board cited several examples:
| - With respect to the May 1994 kidnapping incident, the police were simply unable to find the kidnappers. |
| - When the applicant was forced to sign the document giving up his part of the partnership, he chose not to seek help from the state. According to the applicant, going to court would have been very costly. In addition, the mayor told him that nothing could be done because he had signed the paper, but the applicant was unable to produce this paper. |
| - The case with respect to the February 1996 incident did not go forward because there were no witnesses. |
| - The documentary evidence indicates that the state is working to combat extremists. The tribunal noted the signing of the Chittagong Hills Tracts peace accord. |
[8] Finally, the Board found that the witness, Mr. Subodh Bikash, was unable to corroborate the applicant's testimony because he was not with the applicant in Bangladesh at the time of the events described.
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[9] It is well established that credibility is squarely within the jurisdiction of the Board as the trier of fact. The Board, which is a specialized tribunal, is entitled to infer that an applicant is untrustworthy because of implausibilities in his or her evidence as long as its inferences are not unreasonable and its reasons are set out in "clear and unmistakable terms" (see Hilo v. Canada (M.E.I.) (1991), 15 Imm.L.R. (2d) 199 at 201 (F.C.A.)). In light of the evidence, I find that the applicant has failed to establish that the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). Indeed, the Board's finding of non credibility was based on inconsistencies and implausibilities between the applicant's oral testimony and his PIF and between his testimony and the documentary evidence. In my opinion, the Board's findings on this point were reasonable and do not justify the intervention of this Court.
[10] As for the arguments raised by the applicant which are linked to the alleged failure of the Board to consider documentary evidence supporting his claim, the applicant must be reminded that unless the contrary is shown the Board is assumed to have considered all the evidence presented to it (see Florea v. Minister of Employment and Immigration (June 11, 1993), A-1307-91 (F.C.A.)). In general, the fact that some of the documentary evidence is not mentioned in its reasons is not fatal to the Board's decision (see Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 at 318 (F.C.A.)). It seems to me that the applicant in this case is asking this Court to substitute its assessment of the evidence for the decision of the Board. However, this is not the role of the Court in an application for judicial review (see Tawfik v. Minister of Employment and Immigration (1993), 137 F.T.R. 43 at 46). I am not persuaded that the Board ignored evidence before it or that the Board's assessment of the documentary evidence was unreasonable. In my opinion, the conclusions reached by the Board about the Bangladeshi government's position on the Hindu Buddhist Christian Unity Council and the availability of state protection were reasonably open to it.
[11] With respect to the additional argument raised by the applicant, concerning the Canadian Charter of Rights and Freedoms and international obligations, I consider it premature given that the Board's finding was limited to the conclusion that he was not a Convention refugee. Furthermore, the Board's finding that the applicant was not credible indicates that he would not be persecuted if he was to return to Bangladesh. Therefore, Canada's international human rights obligations would not be breached if the applicant was deported.
[12] Finally, the applicant's contention that Board member Ms. Robic failed to act impartially, given her "extreme bias" and "cynicism", is totally unfounded. I can find no serious evidence indicating that an informed person, viewing the matter realistically and practically - and having thought the matter through - would conclude that Ms. Robic decided unfairly (see Committee for Justice and Liberty v. National Energy Board,_[1978] 1 S.C.R. 369 at 394).
[13] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
August 24, 2000