Date: 20000831
Docket: IMM-5331-99
BETWEEN:
SHAMIM NEWAZ, SAMINA NEWAZ
SHAKIL NEWAZ and SHEENA NEWAZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of Post -Claim Determination Officer ("PCDO"), Maria Bilucaglia, dated October 15,1999, which determined that the Applicants are not members of the "Post-Determination Refugee Claimants in Canada" ("PDRCC") class.
[2] The principal Applicant, Shamin Newaz, his wife, Samin , and their children, Shakil and Sheena are citizens of Bangladesh. They left Bangladesh on January 26, 1996 and arrived in Canada on January 29, 1996 where they claimed refugee status.
[3] In March 1999, the Refugee Division determined that the Applicants were not Convention refugees. The members of the panel concluded that the principal Applicant is fleeing prosecution rather than persecution.
[4] The Applicants based their claim on a well-founded fear of persecution on the grounds of political opinion.
[5] The principal Applicant joined the Jatiyo Party in June 1991 and later became a member of the Ghatak Dalal Nirmul Committee. He alleged to have been attacked by Bangladesh Nationalist Party (BNP) goons in April and July of 1992.
[6] In May 1993, the principal Applicant was elected Publicity Secretary.
[7] In June 1993 he was arrested under the Special Powers Act (SPA) while attending a demonstration. He was physically tortured and released from jail in October 1993, only to be re-arrested and jailed until February 1994. Afterwards, he continued his political activities.
[8] In March 1995 the principal Applicant was threatened to death. The next day, he participated in the Dhaka siege protest. He then went into hiding fearing police arrest. The police, as well as BNP goons, searched for him at home and at his work.
[9] Unable to obtain bail through his lawyer and after nine months of hiding, the principal Applicant and his family decided to leave Bangladesh in January 1996 to seek refuge in Canada.
[10] Following a negative decision of the Refugee Division, the Applicants applied for consideration under the PDRCC class. On October 15, 1999, the PCDO determined that the Applicants did not qualify as members of the PDRCC class.
[11] The PCDO determined that there is no objectively identifiable risk for the Applicants if they were to return to Bangladesh.
[12] At the outset of her reasons, the PCDO indicated that despite the CRDD"s negative decision that she "must evaluate applicants" case to determine whether they are at risk, as per our Regulations, for their lives, of extreme sanctions or of inhuman treatment"1.
[13] The PCDO based her decision on several factors.
[14] First, the immigration officer found implausible the circumstances surrounding the events which led to the Applicants" departure from Bangladesh, namely the fact that the principal Applicant was wanted by the police or the BNP goons following his participation in the March 1995 demonstration.
[15] In this regard, the PCDO found it implausible that the principal Applicant"s lawyer would have tried to obtain bail for him when he had not been arrested by the authorities. The immigration officer also found that there was no evidence suggesting that the principal Applicant is wanted by the police or that a case has been lodged against him. Additionally, the immigration officer noted that neither the police, nor the BNP goons searched for the principal Applicant at his wife"s parents place where his wife and children were staying while he was in hiding.
[16] Further, the immigration officer observed that there was no evidence that shows that the Applicants" families have incurred problems with the police or the BNP goons with respect to the principal Applicant.
[17] Second, the PCDO referred to the U.S. Country Report for 1998 which states that the Bangladeshi government continues to use the Special Powers Act which allows arbitrary arrests and preventive detention to harass political opponents. However, she noted that the report also indicates that there is a sharp decrease in the number of persons being detained under these provisions.
[18] Further, the PCDO underlined that, according to A Country Profile on Bangladesh prepared by the Australian Refugees, Immigration and Asylum Section of the Department of Foreign Affairs and Trade, July 1994, it is unlikely that individual members of the JP returning to Bangladesh after a period abroad would be persecuted unless, on arrival, they participated in political life and became a serious threat to the Government.
[19] An article dated July 3, 1996, in addition, indicated that the JP would now be a one-man party with no political future as a result of many defections by local national JP leaders.
[20] In light of this evidence, the PCDO determined that the risk emanating from opposing political parties, through the police or goons, would no longer apply to the principal Applicant.
[21] Consequently, the PCDO concluded that the Applicants would not face a risk to their lives, inhumane treatment or extreme sanctions upon return to Bangladesh.
[22] Counsel for the Applicants submits that the Applicants" PDRCC application failed because the PCDO found that there was "no evidence that he is wanted by the police or that a case has been lodged against him". She also points out that the Refugee Division appeared to have accepted that in March 1995, the principal Applicant was wanted for arrest under the Special Powers Act and that a bail hearing was held in regard to his actions in a political demonstration.
[23] Therefore, counsel submits that since this fact has been established to the satisfaction of the Refugee Division, after an oral hearing, that it was not open to the PCDO to find otherwise. Although technically a PCDO assessing a PDRCC application is not bound by the findings of the Refugee Division, counsel urges that this principle should not apply to the detriment of the individual applicant or be applied in such a way as to distort the quasi-appellate nature of the PDRCC process.
[24] In other words, the Applicants argue that given that the facts were already established by the Refugee Division, that it was outside the jurisdiction of the PCDO to substitute her own findings of fact for those of the Refugee Division.
[25] The Respondent, on the other hand, submits that the Applicants" contentions are ill-founded. Counsel contends that under the PDRCC process, the PCDO has the duty to evaluate whether Applicants are members of the PDRCC class. The PCDO must, therefore, conduct an independent assessment of the credibility of the evidence, review all the evidence, draw inferences and attribute probative value to the evidence put before her or him (Atapour v. M.C.I.2).
[26] In a companion case with very similar arguments (Ali Ahmed et al v. M.C.I.3), I held that the PCDO commits a reviewable error if she exercises her discretion pursuant to improper purposes. For the reasons given in Ali Ahmed, I am of the opinion that the PCDO exceeded her jurisdiction in reassessing the Applicants" claim, and thus conducting a fresh refugee determination analysis, rather than a risk analysis, as required under a PDRCC application.
[27] Consequently, this application for judicial review is allowed. The matter is sent back for redetermination by another Post-Claim Determination Officer in accordance with these reasons.
[28] Counsel for the applicants has requested the following question for certification:
| In the absence of new evidence, arguments or submissions, is it open to a Post-Determination Claim Officer (PDCO) on an application by a refugee claimant for landing as a member of the Post-Determination Refugee Claimants in Canada (PDRCC) class to revisit and reverse findings of fact tending to show risk already made by the Refugee Division with respect to that claimant after a full oral hearing into the claim? |
[29] I am satisfied that this question contemplates an issue of general importance on the role of the PCDO"s process. I will, therefore, certify the proposed question.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
August 31, 2000.
__________________1 PCDO notes on file, Certified Tribunal Record at 4.