MB4-03698

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 File No. / N° de dossier de la SAR : MB4-03698 MB4-03699 MB4-03700 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision February 25, 2015 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the persons who are the subjects of the appeal Me Nilufar Sadeghi Conseil des personnes en cause Designated representative N/A Représentant désigné Counsel for the Minister Ms. Sarah Marie Côté Conseil du ministre REASONS AND DECISION [1] The Principal Appellant is Mr. XXXX XXXX XXXX, who is 58 years old. Associated with this appeal are his wife, Ms. XXXX XXXX XXXX, aged 55 and their son, Mr. XXXX XXXX, aged 18. All are citizens of Bangladesh and all are appealing a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The Appellants have submitted new evidence in support of their appeal and are not requesting an oral hearing before the Refugee Appeal Division (RAD). I note the Minister has intervened in this appeal to provide argument and analysis.1 DETERMINATION OF THE APPEAL [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that Mr. XXXX XXXX XXXX, Ms. XXXX XXXX XXXX and Mr. XXXX XXXX are neither "Convention refugees" pursuant to s. 96 of the IRPA nor persons in need of protection pursuant to s. 97 of the IRPA. BACKGROUND [3] The Appellants allege that they are at risk because they are Hindus and have been targeted by the opposition political leaders of Ward 7 in their home city, XXXX. These individuals allegedly belong to the Bangladesh National Party (BNP), led at the ward level by an individual identified as Mr. Shafiqur Rahman and to the Jamaat-e-Islami (Jamaat) party, allegedly led at the ward level by Mr. Mohammed Abdur Rouf. The Appellants allege that these operatives seek to dispossess the Appellants of their property and seek to force the Appellants to leave Bangladesh. [4] The Principal Appellant states that he was an employee of the XXXX XXXX, at XXXX, and had just become semi-retired when he was targeted. Mr. XXXX and Mr. XXXX sought to force the Principal Appellant to sell his ancestral property for 2 Lakhs Taka (approximately $3000 CAN), when the Principal Appellant states that his property was worth $700,000 CAN. The Appellants allege that Mr. XXXX and Mr. XXXX sought to use the land to build a Mosque and Madrassa. The Principal Appellant alleges that he and his family were threatened with death if they did not sell the land and that the Appellants were warned that they must flee Bangladesh because they would be found and killed anywhere if they remained. [5] The Appellants, who had earlier secured a visa to travel to Canada and the US, allegedly feared for their lives and fled Bangladesh to arrive in Canada on XXXX XXXX, 2014. The Appellants lodged a refugee claim later in May 2014. The RPD heard the Appellants' protection claims and in a decision dated August 27, 2014, denied the claims. The Appellants appealed the RPD decision in a Notice of Appeal received by the IRB, on September 17, 2014. SUBMISSIONS [6] The Appellants submit that the RPD made several errors with respect to its assessment of the Appellants' credibility. These include the RPD's conclusions related to how the agents of persecution found out that the Appellants were travelling. The RPD is also seen to error with respect to whether the Appellants made mention of being threatened with death in their BOC. Other problems with the RPD decision relate to a supposition that the RPD made that the Appellants did not have an onus to provide details of their itinerary to Canadian visa officials. Finally, the Appellants viewed it an error for the RPD to conclude that the Appellants should have reported their problems to the police when in fact the documentation would hold that violence towards Hindus is endemic and Bangladeshi authorities are not of much aid to dispossessed Hindus and those who have faced violence. [7] The Appellants also argue that the RPD erred in its assessment of the possibility of an Internal Flight Alternative (IFA) for the Appellants in Dhaka. The Appellants argue that the RPD's conclusion is not consistent with an evaluation of the country condition documents. [8] The Appellants also argue that they have a "fundamental right to be able to keep their ancestral property" (Appellants' Memorandum, paragraph 33). The Appellants also find an error in the RPD's suggestion that the Appellants might live in Dhaka but continue to take care of their property in XXXX. [9] The Appellants argue that the RPD decision should be 'set aside' and that the Appellants be recognized as Convention refugees. NEW EVIDENCE [10] Based on s. 110(4), this evidence, which includes a website clip, a checklist for a visa application and a copy of the Universal Declaration of Human Rights (UDHR), does not meet a first threshold that it is 'new', in the sense that it was not available before the RPD rejected the claim. In any case, the first two elements of this material are unnecessary because I find that, in fact, the RPD did error with respect to its credibility conclusion on the provision of an itinerary. With respect to the UDHR, it is a document which, if not already an accepted part of the corpus of IRB documentation, is a well-known international convention and I will consider it. I therefore conclude that no 'new' evidence was provided to the RAD. ROLE AND FUNCTION OF THE RAD [11] With respect to the RPD's credibility assessment, which is one of the determinative issue in this claim, for a number of reasons the RPD did not believe that the Appellants were at risk of persecution under IRPA s. 96 or at risk for a IRPA s. 97 reason because it concluded that the Appellants did not meet their burden of establishing that their story was true on a balance of probability. The RPD also noted a determinative issue related to IFA which is an assessment of country conditions when applied to the Appellants' allegations. In this case, the Appellants seek to have the RAD review the country conditions to reach a conclusion on whether the RPD is correct in its assessment. [12] I note that the RAD has now received some Federal Court guidance on the role of the RAD vis-à-vis RPD decisions. One Justice suggests that my assessment of the RPD's determination with respect to questions of fact and with respect to questions of mixed fact and law, should involve an evaluation of the evidence to determine if the RPD made 'palpable and overriding errors'. This jurisprudence sets out that the RPD is owed a "measure" of deference in its conclusions of fact, and of mixed fact and law and establishes that the RAD is responsible to perform its "own assessment" of all of the evidence (Alvarez2 and Eng3). [13] I note that in another recent decision (Spasoja4) Justice Roy agrees with Justice Shore on the conclusion that 'palpable and overriding errors' should be the standard of intervention with respect to questions of fact. [14] In Huruglica,5 the Federal Court has stated that the RAD "must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection". Justice Phelan in Huruglica indicates that there is no need for the RAD to enunciate a 'standard of review' and suggests that while the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a particular advantage in reaching such a conclusion, in other areas, such as an assessment of country conditions evidence, the RAD need not be deferential. [15] In Njeukam,6 Justice Locke references Huruglica and suggests that "Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD". [16] Following Huruglica and Njeukam, I conclude that this appeal, which turns on questions of fact and questions of mixed law and fact, I must grant the RPD a degree of deference with respect to its credibility assessment. I must also reach my own conclusion based on my own assessment of the evidence and I do not have to show deference to the RPD's assessment of country conditions in Bangladesh with respect to the viability of an IFA in Dhaka when applied to the specific situation of the Appellants. ANALYSIS OF THE MERITS OF THE APPEAL Issue 1: Did the RPD err in its credibility findings? [17] In reviewing the evidence, I note that the RPD undertook a review of the Appellants' testimony and evidence and reached a conclusion of 'not credible' based on 'discrepancies' and 'incoherencies' in terms of the logic of the claim and what the Appellants stated in testimony. [18] The RPD identifies a series of such incoherencies with respect to sustaining a claim based on persecution because the Appellants are Hindu. The RPD writes in relation to recognizing this as a claim under section 96 of IRPA: The tribunal admits that the retirement of the claimant from the bank, the fact that he is Hindu and has an autistic son and that he has properties are facts that may be known by strangers and neighbors. However, he did not establish any political involvement, any persecution because he is Hindu, or any link with the fact that his autistic child or the fact that he is a retired banker led to his persecution. According to the evidence, the claimant lived and worked in his country for the same institution during several decades and at the time of his retirement, he admitted he had no problems (RPD Decision, paragraph 24). [19] I must view this as an error. The fact is that during 2013 and in the period surrounding the 2014 election, many Hindus were targeted by Jamaat and BNP operatives and 'goons' because they were Hindus. I cannot accept that the allegations of the Appellants cannot be viewed through the prism of an allegation of persecution based on religion. [20] The RPD also provides a close reading of the events and testimony and finds a number of inconsistencies in the testimony compared to the BOC narrative and the logic of making a visa application. Most of these conclusions do not appear strong to me. For example, the RPD concludes that the Appellants 'speculate' about how Mr. XXXX and Mr. XXXX knew that they (the Appellants) were going to visit North America and as a result the Principal Appellant "gave no reasonable explanation to indicate why such private information would have been known to the two groups" (RPD Decision, paragraph 29). The RPD concludes that because this is speculation this is a credibility concern. [21] I am in agreement with the Appellants that the RPD did not give enough credit to the explanation of the Appellant that knowledge of the travel plans of the Appellants might be easily obtained, perhaps from the Principal Appellant's bank or neighbours (Appellants' Memorandum, paragraph 13). The RPD also appears to find a credibility issue with the timing of the Appellants application for a visa (RPD Decision, paragraphs 40-41). In this case, I simply do not understand the point the RPD is making and I must agree with the Appellants that providing an itinerary, such as a hotel reservation, is common practise when applying for a travel visa. [22] The RPD also reaches a conclusion that the Appellants 'omitted' a death threat in their narrative and provided an explanation for this absence that was not credible. Again, I must agree with the Appellants that the BOC Narrative includes references (RPD Record, p. 41) which indicate to me that the Principal Appellant was being threatened with being killed. [23] I find the RPD is on much stronger ground with respect to its conclusion questioning why the Appellants did not report their problems to the police. According the RPD: [46] In the present case, the claimant is a retired banker who defined himself as rich with properties. According to the evidence provided, the claimant was offered to sell his property at a lower market value, but he was unable to indicate to the tribunal if the promise letter of offer was left to be sign or not, which the tribunal found troubling, since the alleged letter of offer of XXXX XXXX XXXX 2014 is at the center of his alleged claim to leave his country precipitously. The claimant did not report any of the alleged visits to police. [47] In our opinion, given the economic status of this claimant, if he was really threatened and visited several times in XXXX 2014, as he claimed, by the alleged individuals, he would have reported the alleged visits to the police, including the one of XXXX XXXX XXXX 2014. The reasons given for not doing so were not found reasonable, giving the claimant's social and economic status in his country. According to the tribunal, if the claimant was threatened by BNP and Jamaat, he would have at least reported the incidents to police to request their protection before considering as his first option to leave his country and leave all his property behind, since the tribunal did not believe that he received any death threats (RPD Decision, paragraphs 46-47). [24] The Appellants respond by noting many cases in the documentation where Hindus have been targeted and the police have not responded to issues related to random attacks on houses. According to the Appellants, 29. Considering the appellants' statements and the documentary evidence pertaining to the situation of Hindus in Bangladesh and the lack of assistance from Bangladeshi authorities, it is submitted that it was not only reasonable for the appellants to not file a complaint with the police but also understandable that they would deem it safer to "stay under the radar", rather than bringing additional attention to their situation (Appellants' Memorandum, paragraph 29). [25] On this issue, I believe the Appellants face a serious credibility issue. The Principal Appellant is arguing that this is the property where he was born and that it is a very expensive and desirable property. The Appellants also alleges he is rich. I note that he is arguing that while a member of the XXXX Bank, he would have recourse to protection, yet now that he is retired this protection is not available. The Principal Appellant also alleges that he has no idea what has happened to his property since he has left (Oral Hearing at minute 31). [26] I can understand the concern of the RPD and I must conclude that this is a major credibility issue. The fact is that if there is one very clear conclusion that can be reached about the targeting of Hindus is that these incidents are well documented. In the Appellants' own documentation, such cases are itemized and described in detail (e.g., RPD Record, p. 79-888 and 1080-1083). I note that the Appellants come from the XXXX division and in this area I can see only one case identified of an attack on a Hindu property. It states that "On 12 March, miscreants set fire around a temple in Juri Upazila in Maulvi Bazar District. But the people living around the temple quickly took the fire under control" (RPD Record, p. 1046). [27] My point would be that if the Appellants were perhaps farmers who owned modest property in a rural area, then simply running away might be an option. In this case, however, the Appellants are wealthy and this is an ancestral home in a relatively large city. This also means that this is a home where the Principal Appellant's sisters lived and where undoubtedly large numbers of the extended family and friends have visited. According to the BOC, the Principal Appellant sister, MsXXXX XXXX XXXX, still lives in XXXX while another sister, Ms. XXXX XXXX, lives not far away in XXXX. With respect to Ms. XXXX, she has many family members remaining in XXXX Division. [28] There is also the question of whether other Hindus live in the area, which although speculative is likely because people of similar ethnicity often live in close proximity. At some point, when a mosque or madrassa is built on a formerly Hindu property, one would expect the Hindu community to ask questions. Put simply, this confiscation of the Appellants' property is very unlikely to go unnoticed. [29] In addition, it is simply hard to believe that a wealthy Hindu could be forced to leave an expensive property through intimidation without any record or recourse. Even at a basic level as a wealthy person, the Appellants should be expected to have recourse. In the developing world, property rights are strongly protected because otherwise rich people would be regularly dispossessed. In this case, even the proposition that because the Principal Appellant was in "Preparatory Retirement" - as opposed to full retirement, which was to come in XXXX 2015 (RPD Record, p. 34), he can no longer receive assistance from the bank is open to question (Oral Hearing at minute 1:06). It would be in the interest of the bank to protect its semi-retired and even retired employees because everyone is going to retire at some point and it is hard to believe that the letter, dated XXXX XXXX, 2014, which marks the end of his employment (RPD Record, p. 428), means that the Principal Appellant could not call up his friends and former associates at the XXXX Bank, in XXXX, in XXXX 2014, and expect some form of assistance. [30] Overall, In other words, I find it lacks credibility that the Appellants would simply leave XXXX and have no confidence that their own family, community, co-religionists, and former colleagues would not react to this seizure in some manner, which would at least record the extortion/expropriation of a Hindu's property. It should be noted that there is a lack of authoritative corroborative evidence of such an expropriation in this file. [31] There is also the question of political power. In the XXXX district, almost 20 % of the population is Hindu. Although the mayor of XXXX is BNP, the Member of Parliament has been from the XXXX XXXX XXXX XXXX) since the 2008 election. It might also be noted that in 2013, the Bangladesh Supreme Court upheld the deregistration of the Jamaat party in terms of elections and one of its leaders, Mr. Abdul Quader Molla, has already been hanged for his role in the 1971 independence struggle. Other Jamaat leaders also face execution including its leader, Mr. XXXX XXXX XXXX. It is simply the case that the BNP and Jamaat are not in charge and the violent actions and protests of this group and even the targeting of Hindus in various parts of Bangladesh is evidence of this. [32] I would also note that although it is the case that the problems of 'returning' property are great, the AL has made the promise to address the problem of returning to Hindu property owners, property confiscated under the previous law (Vested Property Act), and there is a process in place to accomplish this task. The AL first brought legislation to 'return' enemy/vested property in 2001 and more recently, in 2011, actually passed the law and with amendments in 2013, have made a real effort to follow through on this attempt to address previous confiscations. According to the UK Guidance Note: "The 2011 Vested Properties Return Act allows Hindus to reclaim land that seized from them by the government or other individuals. However, human rights groups have critiqued the government for its slow implementation of the law".7 On this point, it is certainly clear that many believe the government is not moving fast enough, which can be seen from the critical analysis of these AL efforts in a book by Mr. XXXX XXXX, (RPD Record, p. 975-980) that sets out how many in the Hindu community believe more can be done to ease the process of effecting the return of property. [33] There is also the problem of corruption (RPD Record, p. 984) which is endemic in Bangladesh politics, which is having an impact on claims by Hindus for the return of previously confiscated property. At the same time, it is clearly the case that Jamaat and BNP have targeted Hindus although the evidence of risk in the Appellants' region of Bangladesh is minimal. Attacks on Hindus occur partly because they are very clearly AL supporters and especially Jamaat, which at times espouses militant Islamic positions, is playing to its extremist base. [34] My conclusion is that while the RPD has identified the key credibility problem with the Appellants' claim, it has also made errors. I conclude that the RPD's credibility analysis is not sufficient to reach a determinative conclusion on this claim. I find, however, that there is a determinative conclusion in the RPD decision related to IFA which is viable. Issue 2: Did the RPD err in its findings related to IFA? [35] The RPD concludes that the Appellants have a viable IFA in Dhaka. According to the RPD, "the tribunal found that the claimants did not establish that they would be at risk everywhere in Bangladesh and that it would be unreasonable to expect them to relocate in Dhaka and resume their lives there" (RPD Decision, paragraph 52). [36] To begin with, the Appellants dispute the logic of a viable IFA in Dhaka by arguing that by leaving their ancestral property their fundamental human rights have been denied. First and most importantly, contrary to the RPD panel's statement, the right to property is indeed a right recognized under Article 17(2) of The Universal Declaration of Human Rights which clearly states "No one shall be arbitrarily deprived of his property". (New Evidence as per subsection 110(4) of the IRPA, Appellants 'Record, p. 63) It is therefore submitted that the appellants have indeed a fundamental right to be able to keep their ancestral property. [37] The Appellants argue that being unable to retain their ancestral property in some way, validates a claim on Canada's protection. I must conclude that I am in agreement with Minister's counsel8 that jurisprudence would not provide for a situation where the Appellants could succeed in their claim because they were dispossessed of their ancestral property. According to Justice Harrington, [6] It is clear that a property rights claim is not a basis for a refugee claim under the United Nations Convention relating to the Status of Refugees and section 96 of the IRPA (Ramirez v Canada (Solicitor General), 88 FTR 208 at paragraph 12, [1994] FCJ No 1888 (QL); Chen v Canada (Minister of Citizenship & Immigration), [1995] FCJ No 189 (QL)). [7] In light of the record, the panel did not act in an unreasonable manner when it decided that Mr. Kenguruka would not face persecution in Burundi if he abandoned his claim to the property that he inherited from his parents. That finding suggests that if Mr. Kenguruka was not the subject of persecution, he would also not be personally subject to a danger of torture or a risk to life or a risk of cruel and unusual treatment or punishment...9 [38] With respect to an analysis of the IFA, in this case, I must conclude that the RPD undertook a full analysis. I must conclude that the logic of the RPD is persuasive and I am in agreement with the conclusion. Given that the agents of persecution or harm made an attempt to buy the property, now that the Appellants have left the area, it would make no sense for them to pursue the Appellants. In fact, involving the Appellants once more in the property by attempting to assault them might create a risk for Mr. XXXX XXXXnd Mr. XXXX because this might lead to the involvement of State protection in the Appellants' case. [39] It is also noted that Dhaka is a huge city and is far from XXXX XXXX Given that Mr. XXXX and Mr. XXXX are members of an opposition party and are involved at the ward level of political activity, I must conclude that there is less than a serious possibility that they would have the resources or connections to pursue the Appellants and find them, even if they had an interest in doing so, which I must conclude is not the case. [40] With respect to the second prong of the IFA analysis, again the profile of the Appellants is that they admit to being relatively wealthy in the Bangladesh context. Even without their property in XXXX, the RPD can reach a conclusion that it would not be unreasonable for the Appellants to relocate to Dhaka and live there. I note that this conclusion would be consistent with the conclusion of the UK Guidance on Bangladesh on religious minorities that face persecution which reads: 3.12.16 Where in individual cases the claimant does face a serious risk of persecution, torture or inhuman or degrading treatment, caseworkers will need to consider whether in the case of risk emanating from non-state actors there is effective protection for the particular individual and whether they could relocate internally to a place where they would not face a real risk of serious harm and where they can reasonably be expected to stay. Where internal relocation would avoid persecution and would be reasonable, a grant of asylum will not be appropriate.10 [41] In this case, the Appellants are relocating from a relatively small city in the XXXX Division to Dhaka, which is the capital city and huge. As noted above, the agents of persecution are non-state actors who have little if any interest in pursuing the Appellants. Even if they did have an interest, they would not be able to utilize State mechanisms to find the Appellants. CONCLUSION [42] For these reasons, I confirm the determination of the RPD, namely, that Mr. XXXX XXXX XXXX, Ms. XXXX XXXX XXXX and Mr. XXXX XXXX are neither "Convention refugees" nor "persons in need of protection". [43] Therefore, the appeal is dismissed. Stephen J. Gallagher Stephen J. Gallagher February 25, 2015 Date /cl 1 Ms. Sarah Marie Cote, Minister's counsel, CBSA, "Memorandum of the Intervening Party," November 4, 2014. 2 Alvarez v. M.C.I. (2014) FC 702. 3 Eng v. M.C.I. (2014) FC 711. 4 Spasoja v. M.C.I. (2014) FC 913. 5 Huruglica v. M.C.I. (2014) FC 799. 6 Njeukam v. M.C.I. (2014) FC 859, paragraph 14. 7 National Documentation Package, Bangladesh, March 14, 2014, Tab 1.6, Operational Guidance Note: Bangladesh, United Kingdom. Home Office. September 2013, paragraph 3.12.5. 8 Ms. Sarah Marie Cote, Minister's counsel, CBSA, Memorandum of the Intervening Party November 4, 2014, Paragraphs 9-11. 9 Kenguruka v. M.C.I., (2014) FC 895. 10 Ibidem, paragraph 3.12.16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-03698 MB4-03699 MB4-03700 13