VB9-03565

RAD File / Dossier de la SAR : VB9-03565 VB9-03566 VB9-03567 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXXXXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision December 27, 2019 Date de la décision Panel Patricia Broad Tribunal Counsel for the persons who are the subject of the appeal Dean D. Pietrantonio Conseil des personnes en cause Designated representative XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Jennifer Mensink (In writing only) Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Minister of Immigration, Refugees and Citizenship and the Minister of Public Safety (the Minister) appealed a decision of the Refugee Protection Division (RPD), dated April 11, 2019, allowing the claims for refugee protection of XXXX XXXX (the Principal Respondent and mother), XXXX XXXX and XXXX XXXX (the Minor Associate Respondents and children), citizens of Bangladesh. [2] The Principal Respondent's husband is a member of the Bangladesh Nationalist Party (BNP). She and her children are the Respondents in this claim. The Respondents claim that, as family members of a BNP member, they are members of a particular social group. Further, the Awami League (AL), political rivals of the BNP, would impute a political opinion to them. They fear persecution from the Awami League government and its supporters in Bangladesh. The Respondents were being followed. In XXXX 2016, they were stopped and subject to threats. The Principal Respondent was slapped, and they pulled her hair. [3] When their home was raided by plain-clothed intelligence people, on XXXX XXXX, 2017, the family went into hiding. Fearing for their safety, they fled from Bangladesh on XXXX XXXX XXXX 2017 and came to Canada for protection. They claimed that they were Convention refugees and/or persons in need of protection. The husband was the Principal Claimant in the claims. [4] However, when they came to Canada, the husband was subject to an Immigration Division (ID) proceeding. The ID found that the BNP party was a terrorist organization. He was found to be inadmissible. His claim for protection was terminated. The rest of his family did proceed with their claims. The RPD found that they were Convention refugees. The Minister provided documentation but did not attend the hearing. [5] The Minister has appealed to the Refugee Appeal Division (RAD). She argues that the RPD erred by relying on the ID's decision for credibility findings. There was no documentary evidence that the families of BNP members were targeted. The Appellants maintain that the ID's decision shows that the husband was a BNP member and that the RPD considered the testimony as well as the documentary evidence to read its conclusion. The RPD's decision is not incorrect. Neither party submitted new evidence nor did they request a hearing. [6] Having reviewed the record, I am confirming the RPD's decision and dismissing the appeal. I do so for the following reasons. ANALYSIS [7] I have reviewed the complete record before me. This review includes listening to the entire recording of the hearing. A copy of this recording is on record. Did the RPD err by modifying the oath? [8] As part of this argument, the Minister has argued that the RPD erred when it asked the Principal Respondent to swear the Basis of Claim to the best of her ability. Specifically, it asked whether, as far as the Principal Respondent was aware, if the Basis of Claim, which she was familiar with, was truthful.1 When the Principal Respondent affirmed this, the RPD Principal Respondent stated that it would treat it as sworn testimony. It is a modified oath. This was done as the initial Principal Claimant, the husband, had been found inadmissible and could not make a claim. It was still his Basis of Claim on record. I agree it would have been preferable for the Principal Respondent to swear her own Basis of Claim, and Counsel could have submitted a new one. However, I do not find that this is an error that renders the decision incorrect. This is because the RPD also questioned the Principal Respondent with respect to the elements of her claim. She provided sworn viva voce evidence about it. In addition, the RPD is in control of its proceedings. It can determine that the oath, in these unusual circumstances, can be modified and that the Principal Respondent can swear to the best of her ability. The RPD acted within the purview of its authority. [9] Certainly, the Principal Respondent had the ability to swear to the truth of the portions of the Basis of Claim that were relevant to her claim, namely, the incident of XXXX 2017. She stated at the hearing that she could not swear to the truth of the Basis of Claim, only parts of it. The RPD Member stated that she was swearing to the parts she knew and that it was good enough for him.2 I do not find that this accommodation for these unusual circumstances constitutes an error. It was clear on the face of the record that the parts of the Basis of Claim include the allegations of abuse against her. The RPD was clear that allegations of persecution against the husband were not in issue; they were not sufficient to find that the Respondents were Convention refugees. [10] The Minister has not shown how there is any prejudice to any party, to the proceedings, to the RPD's reasoning, and to the outcome in this decision. She points out an unusual procedure and determines that it is an error but does not clarify how it was an error and what damage was done. The RPD was proceeding on the best evidence available given the unusual circumstances, and it kept the focus on the main issue. I do not find that the RPD erred when it considered the Basis of Claim and modified the oath to fit the circumstances. Rather, it set out a procedure that was consistent with Part D, paragraph 2 of the Chairperson's Guideline on Women Refugee Claimants Fearing Gender-Related Persecution which recognizes that women "may find themselves in a difficult situation when questioned about the experiences of their male relatives"3 when they come from a culture where men do not share details of their activities. [11] In addition, I note that the RPD does control its proceedings. I do not see any breach of natural justice on record. Further, as set out in section 170(g) of the Immigration and Refugee Protection Act (IRPA), the RPD is not bound by any legal or technical rules of evidence. I note the use of the word "any" and find that it is all-inclusive. Further, according to section 170(h) of the IRPA, the RPD may receive and base a decision on evidence that it considers credible and trustworthy in the circumstances. This section recognizes the RPD's jurisdiction to assess the evidence and make findings as to the credibility and trustworthiness of the evidence. By including the terms "in the circumstances", the legislation recognizes that the RPD may take into consideration different situations and respond appropriately to them. It would be an error to take a narrow interpretation of these sections in the field of Administrative Law which is designed to accommodate a level of flexibility to provide justice and to get closer to the truth. Further, I do not find that there has been a breach in natural justice. Did the RPD rely excessively on the ID's decision? [12] The Minister also argues that the RPD erred by relying on the ID's decision. It points out that the ID's decision does not fall under the narrow provisions of IRPA regulations 14 and 15. Having reviewed the regulations, I agree. However, The RPD's reasons are not simply adopting the ID's decision. Essentially, the RPD performed a correct assessment of the evidence. It considered the Principal Respondent's testimony insofar as it related to her and the other Respondents. While the Principal Respondent may not claim to know details of the events with regard to the husband, she did know what was within her purview of knowledge. The Principal Respondent described her husband's activities as those that would help society. She stated that he distributed supplies in inclement weather; his name was on a list.4 The Principal Respondent's testimony pertained to matters that she would know about. The RPD considered the Principal Respondent's testimony insofar as it related to her and the other Respondents. It considered the documentary evidence in a sufficient manner, noting evidence in the National Documentation Package (NDP) that supported its decision. I do not find that the RPD merely adopted the reasons of the ID in the manner considered under regulations 14 and 15. I do not find that there has been an error. [13] Further, the Minister acknowledged that it was not incorrect to rely on the ID's decision for BNP membership.5 Effectively, the RPD considered this aspect of the ID's decision in the context of the documentary evidence. [14] In addition, the RPD correctly set out the main issues which are the matters facing the Respondents. Its reasoning is based on sources of direct evidence, such as an analysis of the documentary evidence and the testimony regarding the central issues. It performed a sufficient assessment of the evidence on record. I find that the RPD's reasons do not rely on the peripheral issues in the ID's decision but simply accept the finding that the husband was an ID member which was sufficient to support the findings of the likelihood of persecution for the Principal Respondent. I do not find that the reasoning revolves around the events that befell the husband; rather, it is the incidents that occurred with the Principal Respondent. [15] Having reviewed the record, I find that the RPD had a sufficient evidentiary basis to find that the husband was a member of the BNP and was active in it. The ID's decision was not the only documentation that provided evidence of the husband membership and activities with the BNP. There was also the Principal Respondent's testimony, the letter from the BNP6 and the letter from the husband's mother.7 There was no evidence to contradict this finding; the weight of the evidence clearly supported the RPD's findings about the husband and his activities. Upon appeal, there is still insufficient evidence to contradict these findings. [16] The Minister has argued that the RPD should have tested the husband's credibility of his membership and activities. However, I do not find that it was necessary. There was a discussion at the beginning of the hearing, and the husband was present as an observer. There was sufficient evidence to find that he was a member of the BNP, including the ID's decision, which the Minister has stated could be relied upon,8 and the Principal Respondent was questioned about her husband's activities. Again, the Principal Respondent testified that her husband's name was on a list, and the authorities were looking for them. It was appropriate for the RPD to keep the focus on the main issue, the likelihood of persecution for the Respondents. As an example, when it discussed the husband's activities, the RPD was clear that it was plausible but that the question was what the Respondents faced.9 The Minister argues that it was correct for the RPD to accept that the husband was a member of the BNP from the ID, but there was a need to examine the husband's allegations of persecution. It is unclear why this would be the case. Arguably, it would be evidence that shows the likelihood that the Respondents were targeted. If he has a high profile, then it is more likely that they would be targeted. However, I find that the RPD provided sufficient reasons to accept the Principal Respondent's credibility, which was direct evidence on the main issues. Principal Respondent's Credibility [17] I find that the RPD did provide sufficient reasons to accept the Principal Respondent's credibility; it did not merely rely on the ID's decision for finding the credibility of the claims. It noted that her testimony was given in a straightforward manner without undue hesitations or exaggerations. The content of her answers was quite plausible and consistent with her written statements. They were consistent with the documentation. The presumption of credibility was not rebutted.10 Having listened to the full recording of the hearing and having reviewed the record, I agree with this assessment. I do not see an error in the RPD's assessment of credibility; rather, it is correct. The Minister has not pointed out any flaw in the Principal Respondent's testimony. The Minister did not provide a transcript of the hearing and pointed out a small part of the proceeding. The context of the testimony supports a finding of credibility. [18] The RPD questioned the Principal Respondent effectively on the main elements of the claim. The focus was kept on the Principal Respondent's claim and not that of her husband;11 other than the membership in the BNP, the findings of the ID are less important. The Principal Respondent described the confrontation on the street in XXXX 2017. They used vile language and threatened her and the children. The children were crying; she and the children were traumatized. She knew of cases where family members of wanted persons were tortured.12 I find that the Principal Respondent provided credible evidence about the events that surround her claim. I do not find that it was necessary to question the husband about these issues. [19] The only potential flaw in the Principal Respondent's testimony could be that she did not mention being slapped or having her hair pulled during the hearing. However, the quality of the recording was not very good, and it could have been inaudible. But even if she had omitted these elements in testimony, it was included in the Basis of Claim. When she swore that the Basis of Claim was true, it became sworn evidence with the presumption of truth. This is the case even with the modified oath, as this event directly befell her; she would have direct knowledge of it. Further, that she was slapped and had her hair pulled is consistent with her account of the event. In this case, I do not find that this omission in the testimony weighs against her credibility. Need for corroborative evidence [20] In addition, because there was not an issue with the credibility of the Principal Respondent, there is less of a requirement of corroborative evidence to support the claims. That there is not a lot of evidence in the NDP about family members being persecuted is not a strong basis to deny a claim. Families are clearly affected by the violence against the opposition of AL members. Children of opposition leaders have been detained;13 a BNP member and his wife were taken away,14 and the AL's treatment of the opposition is described as a "witch hunt". The government has engaged in arbitrary arrests.15 The police are extremely politicized and do not care about rights violations.16 They are violent.17 In short, the documentary evidence does provide evidence that supports the account of the Respondents being stopped, questioned, and slapped. The Principal Respondent is not stating that she was arrested and tortured. Further, the documentary evidence describes an environment where the authorities are likely to continue to target the Respondents, and there is a serious possibility of serious harm. [21] The Minister argues that one of the errors was that there was nothing in the RPD about family members, but in the BOC itself, there is an allegation that the Principal Respondent was assaulted. Again, it is more likely than not that the Respondents underwent the events described. [22] I find that the RPD's analysis of the facts it accepted was correct. There were sufficient reasons. The RPD explained how it came to that conclusion. Arguably, the RPD contradicts itself a bit when it says the questioning and the minor assault are not persecution and finds for the Respondents. However, the RPD does not have to find evidence of past persecution to have forward-looking persecution. In addition, I find that the event described is tantamount to serious harm. It is an indicator of the likelihood of persecution in a political climate against BNP that is oppressive. The evidence leads to the conclusion that there is a serious possibility of persecution in Bangladesh. Summary [23] The Minister has argued that the RPD made assumptions about risk and credibility from the ID's decision. However, she did not identify what they were, and, having reviewed the record, I do not find that this is the case. The Respondents' allegations of persecution were consistent, credible and sufficient for the RPD's findings. There was a sufficient documentary basis for the other findings which were not as central and do not weigh against the credibility of the Respondents' account of persecution. The Minister has not shown the prejudice to the reasoning and findings. I do not find that the RPD relied on the ID's decision in an inappropriate manner; it performed an independent assessment and provided sufficient reasons. Having performed an independent assessment of the evidence, I do not find an error. The RPD proceeded on the best evidence available in an appropriate manner, including modifying the oath. There was sufficient evidence to find that the husband was a member of the BNP, and the Respondents face serious harm because of it in Bangladesh. The evidence on record supports a finding that there is a serious possibility of persecution if the Respondents return to Bangladesh. CONCLUSION [24] The Refugee Appeal Division dismisses the appeal and confirms the decision of the Refugee Protection Division that the Respondents are Convention refugees, pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act. (signed) "Patricia Broad" Patricia Broad December 27, 2019 Date 1 Audio Recording of the RPD Hearing, at 00:22:18. 2 Audio Recording of the RPD Hearing, at 00:07:36. 3 Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson, pursuant to Subsection 65(3) of the Immigration Act, IRB, Ottawa, November 13, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in paragraph 159(1)(h) of the Immigration and Refugee Protection Act. 4 Audio Recording of the RPD Hearing, discussion beginning at 00:32:45. 5 Exhibit M-2, Appellant's Record, Appellant's Memorandum, at paragraph 14. 6 Exhibit RPD-1, RPD Record, at p. 345. 7 Exhibit RPD-1, RPD Record, at p. 346. 8 Exhibit M-2, Appellant's Record, at p. 12, Appellant's Memorandum, at paragraph 14. 9 Audio Recording of the RPD Hearing, discussion beginning at 00:14:30. 10 Exhibit RPD-1, RPD Record, at p. 4, Reasons and decision, at p. 2. 11 Audio Recording of the RPD Hearing, at 00:14:30. 12 Audio Recording of the RPD Hearing, at 01:12:10. 13 NDP for Bangladesh (March 29, 2019), item 4.4, Asylum Research Consultancy, Bangladesh Query Response: Awami League (AL) and supporters of the Bangladesh National Party (BNP), December 15, 2016, at p. 34. I have considered the NDP from March 29, 2019, as it is the practice of the RAD to consider the most recent NDP and because the RPD Member indicated during the hearing that he would be considering it. 14 Ibid., NDP for Bangladesh (March 29, 2019), item 4.4, at p. 37. 15 NDP for Bangladesh (March 29, 2019), item 4.11, Bertelsmann Stiftung, I. Political Transformation, Transformation Index 2018 Country Report: Bangladesh, 2018, at p. 7; and item 10.3, Human Rights Watch, "No Right to Live": "Kneecapping" and Maiming of Detainees by Bangladesh Security Forces, September 28, 2016. 16 Ibid., NDP for Bangladesh (March 29, 2019), item 4.11, at p. 7. 17 Supra, endnote 15, NDP for Bangladesh (March 29, 2019), item 10.3. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-03565 VB9-03566 VB9-03567 RAD.25.02 (April 04, 2019) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2019) Disponible en français