TB6-11868

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 : TB6-11868 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision December 19, 2016 Date de la décision Panel L. Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A Kaminker Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant) claims he is a citizen of Bangladesh. He appeals the decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has tendered new evidence in his appeal but does not request an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision and substitute a determination that he is a Convention refugee or, in the alternative, refer his claim back to the RPD for redetermination. DETERMINATION [2] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD that the Appellant is not a Convention refugee nor a person in need of protection. His appeal is denied. BACKGROUND [3] The Appellant alleged before the RPD that he fled Bangladesh after being assaulted and kidnapped by elements aligned with the ruling Awami league (AL). He alleges that he and his family were targeted by the AL and their sub-groups because his father is a prominent business man and president of the local chapter of Jamaat-e-Islam, an opposition group. [4] The Appellant's refugee claim was heard on April 25, 2016. In a decision of August 9, 2016, the RPD rejected the Appellant's claim, finding the allegations of the Appellant not credible. [5] The Appellant submits that the RPD erred by finding that he had not established his personal and national identity. ROLE OF THE RAD [6] The RAD finds that the Federal Court of Appeal's decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal, such as the RAD, to decisions of a first-level administrative tribunal. In accordance with the decision of the Court, the RAD will conduct its own assessment of the RPD's decision to determine if the RPD erred and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [7] As provided for in s. 110(3) of the IRPA, with certain exceptions, the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD and may accept documentary evidence and written submissions from the Minister and refugee claimant. Section 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] The Appellant has submitted the following documents as proposed new evidence with his Appellant's Record. (i) A document from the website BDGovtInfo.com which explains how to apply for a General Diary; (ii) A copy of the home page from the Bangladesh National Portal; and, (iii) A copy of the Bangladesh Explosive Substances Act of 1908. [9] The Appellant submits that the proposed new evidence meets the requirements to be admitted as new evidence in this appeal. [10] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4) IRPA. The RAD finds that further analysis of the evidence is required before the RAD can accept the proposed new evidence, however the analysis as set out in Raza2 is not entirely appropriate for the purpose of assessing evidence submitted to the RAD. In this regard, the RAD is guided by the Federal Court of Appeal decision in Singh.3 [11] Accordingly, the RAD has adapted the analysis in Raza4 to the assessment of evidence submitted to the RAD. [12] In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) First, did the evidence arise after the rejection of the Appellant's refugee claim? Here, the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.5 (b) The RAD will consider not only the date on which the document came into existence, but the timing of the event or circumstance which the document seeks to prove.6 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. (c) It is important to note here that s. 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. (d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.7 (e) Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in s. 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim,8 or that it proves a fact that was unknown to him at the time of the hearing?9 If so, the RAD will proceed to assess the newness, credibility and relevance of the evidence. (f) Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, and that it was reasonably available at the time of the rejection, it must consider the final part of the s. 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of the refugee claim? If so, the evidence need not be considered.10 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the newness, credibility, and relevance of the evidence. (g) If the proposed new evidence meets the tests set out in the statutory requirements and in Raza,11 the evidence will be admitted as evidence in the appeal. The materiality of the evidence will be considered in the context of the assessment made under section 110(6) of the IRPA. [13] The Appellant argues that the documents from the website BDGovtInfo.com which explain how to apply for a General Diary and the online home page of the Bangladesh national portal are admissible because he could not reasonably expect that the RPD would be unaware of how a General Diary is filed in Bangladesh or that the English language is commonly used in Bangladesh. He argues that it was reasonable for him to expect that this information would have been within the knowledge of the RPD member. [14] The RAD finds that the Appellant's argument has merit. The RAD finds that while the RPD did raise the fact that the General Diaries did not have a letterhead the issue of the use of English in the police stamp was not put to the Appellant. The RAD finds that the Appellant could not have reasonably expected the RPD would draw adverse inferences with regard to the appearance of the General Diary and the use of the English language on both the General Diary and the Jamaat letter. The RAD notes that both documents lend corroboration of the Appellant's argument that the English language is commonly used in Bangladesh. The RAD finds the new evidence is credible, relevant and that it meets the statutory requirements to be admitted as new evidence. Bangladesh Explosive Substances Act of 1908 [15] The Appellant submits that this document provides corroboration of the evidence that he tendered in support of his claim and that he could not have known that his credibility would have been impugned on the basis that his testimony was inconsistent with the police documents that indicated that he was charged with an offence under the Explosives Substances Act of 1908. [16] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that the issue of the contradiction between the Appellant's allegations and the police reports he tendered was put to the Appellant at his hearing. As such he was aware of the RPD's concerns with regard to this discrepancy. The RAD notes that the Appellant tendered other post-hearing documents in support of his claim and has not explained why this evidence could not have been tendered prior to the rejection of his claim. The RAD finds that the evidence was readily available to the Appellant. [17] Accordingly, this evidence is not admitted as new evidence in this appeal. Oral Hearing [18] Section 110(3) of the IRPA requires that the RAD proceed without a hearing, on the basis of the RPD's record, while allowing the RAD to accept documentary evidence and submissions from the Minister and the Appellant. According to section 110(6), the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. When read together, sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new evidence (i.e., evidence admitted under section 110(4), section 110(5) or Minister's evidence), in which case, the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [19] The RAD notes that the Appellant has not made an application for an oral hearing. Nonetheless, the RAD has considered whether the admission of this new evidence warrants an oral hearing in this appeal. [20] The RAD finds that the new evidence does not raise a serious issue with respect to the Appellant's credibility and is not central to the RPD's decision and, would not justify allowing or rejecting the refugee protection claim. As the new evidence cannot justify either allowing or rejecting the refugee protection claim, then it does not meet the requirements of 110(6). Each of the requirements in 110(6) (a) through (c) have to be met, and in this case, the requirement in 110(6) (c) is not met. As such, the RAD has no discretion to hold a hearing. ANALYSIS OF THE MERITS OF THE APPEAL General Diaries [21] The Appellant tendered three General Diary entries related to when the Appellant's father was reportedly assaulted by cadres of the ruling party in XXXX 2015, when the Appellant was kidnapped in XXXX 2015 and when the ruling party affiliated persons came to the Appellant's house on XXXX XXXX 2015 after the Appellant's father failed to pay the entirety of the ransom for the release of the Appellant from his previous kidnapping. [22] The RPD noted that the General Diaries lacked letterhead or anything official other than a stamp of Duty Officer, which was the only item in English on the original document. The RPD considered the lack of official title on the documents, the mixed language and the lack of explanation from the Appellant, and afforded these documents little weight. [23] The Appellant submits that further to its previous arguments, Bangladesh is a country in which English is widely used. The fact that the General Diary bears a police stamp that is in English ought not to have been reason to afford the document little weight. Furthermore, the Appellant relies on his new evidence which corroborates that General Diaries are completed by the complainant and that those complaints are tendered with the police who would stamp the General Diary when it was received. Although not specifically argued by the Appellant, he infers that the General Diary (GD) would not bear any other official police letterhead or logo. [24] The RAD finds that while the presence of English on the GD form is insufficient to undermine the genuineness of the form, there is reason to doubt the genuineness of the General Diaries tendered by the Appellant. The Appellant has tendered the website BDGovtInfo.com which explains how to apply for a General Diary as corroboration of their argument. The RAD notes after its review of the website that it indicates that there is a pre-printed GD form which can be accessed from the police station. The RAD also noted that the website also provides a direct link to the Dhaka Metropolitan Police the location in which the Appellant has alleged all three General Diaries were lodged. The Dhaka Metropolitan Police site contains a General Diary form which is inconsistent with the documents tendered by the Appellant. In particular, the RAD notes that the GD form on the website prominently bears the Dhaka Metropolitan Police logo. In addition the format of the form included pre-printed data with designated response lines and a blank area for the inclusion of additional narrative information. The RAD finds it reasonable to expect that given the Appellant has alleged the GD's were lodged at the Dhaka Metropolitan Police they would be consistent with the standard form used by the Dhaka Metropolitan Police as set out on their website. The RAD finds that these major inconsistencies undermine the credibility of the General Diaries tendered by the Appellant. [25] In addition, the RAD notes that the Appellant has alleged that the police are under the control of the ruling party in Bangladesh the Awami League who are opposed to the Jamaat-e-Islam party. When asked why they would bother to lodge General Diaries with the police against cadres of the ruling party the Appellant could not offer an explanation. The RAD finds that it defies logic that the Appellant and his family would lodge complaints against cadres of the ruling party if they truly believed that the police were under control of the ruling party. [26] The RAD finds on a balance of probabilities, after its own review of the evidence including the new evidence tendered by the Appellant that the General Diaries tendered by the Appellant in support of his claim are not genuine documents. The RAD further finds that in tendering fraudulent documents in support of his claim the Appellant's general credibility and the credibility of the other documents he has tendered are undermined. Charges Against the Appellant's Father [27] The Appellant tendered a deposition, first information report, charge sheet and warrant which he alleges was related to his father's arrest. The RPD drew an adverse credibility finding based on the nature of the charges allegedly levied against his father. The RPD noted the Appellant testified that his father had been charged with participating in a procession that had thrown pebbles and stones and that it was a false charge. [28] The RPD noted however that the arrest warrant mentions that the Appellant's father was charged under section XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX of the Explosive Goods Act of 1908. It was put to the Appellant that the arrest warrant, first information report and the charge sheet all mentions charges regarding explosives. The RPD found that a charge under the Explosive Goods Act of 1908 would seem to be inconsistent with charges related to a procession where pebbles and stones were thrown. The RPD found that the divergent evidence with regard to the nature of the allegations leading up to his father's arrest undermined the documents as well as the Appellant's overall credibility regarding his father's arrest. [29] The Appellant submits that the documents are consistent with his allegations that the charges against his father were false. He argues that the documents also reveal that the protesters were armed with sticks and were creating obstacles for transportation in the city. [30] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds that the Appellant's testimony on the nature of the charges against his father are inconsistent with the documents he has tendered to corroborate that his father was arrested and charged. The RAD notes that when the Appellant was questioned about the alleged charges he testified that the allegations were that his father had been involved in a protest against the government and that pebbles had been thrown at the police. The RAD finds it reasonable to expect that the Appellant's testimony would be consistent with the documents that he tendered to corroborate his allegations. The RAD notes that the documents mention charges under the Explosives Goods Act and that protesters obstructed transportation and were armed with sticks. The RAD agrees with the RPD and finds that this inconsistency undermines the genuineness of the documents he tendered and his allegations in this regard. [31] The RAD notes that the objective evidence in the record establishes that fraudulent documents are readily available in Bangladesh. The RAD notes that the Ad-hoc Query on Assessment of Authenticity of Documents Produced by Asylum Seekers from Bangladesh, a document published in 2014 by the European Commission that compiled input provided by 21 EU member countries, indicates that the following countries noted that fraudulent documents have been submitted by Bangladeshi asylum seekers: Austria, Belgium, Latvia, Sweden and Norway.12 [32] The May 2015 press release by the US Embassy in Dhaka states that consular officials "often encounter legitimate travelers who place their trust in an unscrupulous broker" and who are then denied a US visa and subsequently arrested "for violating Bangladeshi law" The April 2014 US press release about the arrest of five visa applicants for document fraud states that they "admitted [to] using the services of a broker who allegedly instructed them to lie about their purpose of travel and manufactured fraudulent documents for their applications. 13 [33] The RAD finds that given its concerns with these documents and in light of its finding that the Appellant has tendered fraudulent documents in support of his claim, and in the context of the availability of fraudulent documents in Bangladesh, the RAD finds that these documents cannot be relied upon to be genuine. The RAD further finds that the Appellant's allegations that his father was falsely arrested for his political opinion is not credible. Father's Arrest not Covered by Media [34] The Appellant submits that the RPD drew an adverse inference from the fact that the Appellant made no effort to see if his father's arrest was covered by the media. The Appellant submits that the RPD's finding is based on an erroneous assumption that given the large numbers of political arrest in Bangladesh that his father's arrest would be covered by the media. He argues by way of example that information in the NDP indicates that in January 2015 over a two week period, in excess of 7000 political activists were arrested in Bangladesh. [35] The RAD finds that the RPD finding was based on more than a failure to ascertain if his father's arrest was covered by media. The RAD notes that the RPD's finding largely based on the lack of sufficient documentation which corroborated the Appellant's allegations that his father is a high profile person in Bangladesh. The RPD noted that the Appellant testified that his father is a high level and high profile person in Bangladesh, however the only documentation provided in support of this are letters. The RPD found it reasonable to expect that given the alleged profile and prominence of his father there would be newspaper or other media articles speaking about the Appellant's father. The Appellant was asked if his father's arrest was covered by newspapers but testified he did not know as he did not ask his father. The Appellant also testified that he had not done any research himself. [36] The RPD found that it was reasonable to expect that given the alleged profile of the Appellant's father that there would be at least some coverage of his arrest. The RAD agrees with the RPD in this regard. The RAD finds the lack of and the Appellant failure to make an effort to obtain independent corroboration of his father's prominence in the community and the lack of any media coverage of his arrest undermines the Appellant's allegation that his father holds a significant political profile and that he was targeted for his political profile. Letter from Jamaat-e-Islam Submitted as Post-Hearing Document [37] The Appellant tendered a post-hearing document with counsel's post-hearing written submissions. The RPD admitted the document even though it found that the Appellant failed to make an application for its admission as post-hearing evidence. The RPD gave the letter little weight because it was unable to question the Appellant about the letter. [38] The Appellant submits that contrary to the RPD's finding his counsel made an application to have this evidence admitted under Rule 43(1) of the RPD Rules in its written submissions accepted by the RPD post-hearing. He argues that in his submissions his counsel noted that the letter went directly to an issue before the RPD and that the letter was germane to the proceedings and provided an explanation as to why the letter had not been provided before the April 25, 2016 hearing before the RPD. [39] The RAD finds that argument that the RPD erred in finding that the letter was not tendered in accordance with the RPD Rules is moot. The RPD accepted the evidence and as such it was evidence before the RPD and is now evidence before the RAD. However the RAD finds that the RPD's decision to give the document little weight because it could not interview the Appellant is an error. The RAD notes that if the RPD had concerns about the document it was open to the RPD to re-convene the hearing for that purpose. The RPD cannot diminish the weight of this evidence because it did not choose to exercise its right to re-convene the hearing. [40] The RPD further found that the credibility of the letter was further undermined by the fact that it was written in English rather than the majority language Bangla. The RPD noted that Bangla is spoken by 98.8 percent of the population. [41] The Appellant submits that the RPD's finding was based on its lack of familiarity with Bangladesh documents and processes. He argues that while Bangla is the majority language in Bangladesh, English is widely used. To support his argument he had tendered the home page of the Bangladesh National Portal which is in the English language with some Bangla. He argues that this indicates that English is widely used in Bangladesh and the RPD ought not to have impugned the credibility of the document on this basis. [42] The RAD finds that the new evidence including the homepage of the Bangladesh National Portal as well as the document tendered to describe the process to submit a General Diary corroborates that English is used in some government online publications. The RAD also notes that there is evidence in the NDP which suggests that English is used more widely in Bangladesh. The RAD notes that the National Identification Card14, a sample of which is included in the national documentation package, as well as the Bangladesh passport15 bears writing in both English and Bangla. The RAD finds that given the use of English in both government publications as well as official identity and travel documents indicates a wide use of English in Bangladesh. As such, the RAD finds that an adverse inference cannot be drawn from the fact that the letter was written in English rather than Bangla. [43] The RAD notes however that there are other reasons to question the genuineness of the document. The RAD notes that although the Appellant has alleged that his father was an active member of Jamaat and that he participated in rallies against the ruling party, the letter provided by Jamaat states that he never took part in any anti-state activities so far and that the only reason he was jailed was because of his political opinion.16 [44] The RAD further notes that although the letter was seemingly drafted for the specific purpose of the Appellant's refugee claim, there is no reference whatsoever to allegations involving the Appellant. The letter addresses the political activities of the Appellant's father and the allegation that he was arrested but there is no corroboration that the Appellant and his brother were also targeted. [45] The RAD finds that in light of the foregoing and its findings that the Appellant has tendered fraudulent documents in support of his claim, and the prevalence of fraudulent documents in Bangladesh, little weight can be given to this document. Appellant's Visa [46] The Appellant has alleged that when he traveled to Canada he was not intending on claiming refugee protection but was planning on attending the University XXXX XXXX XXXX XXXX. The RPD found however that the Appellant came to Canada without any intention to attend University in XXXX XXXX XXXX as he has alleged. The RPD noted that the Appellant booked a flight to Toronto, applied for a student visa and applied for and obtained admission to the University of XXXX XXXX XXXX. However he arrived in Toronto without any forwarding flight to XXXX XXXX XXXX and with little cash. The RPD found that it made no sense that the Appellant would be planning on attending the University of XXXX XXXX XXXX but arrive with only $1000 and no onward ticket. [47] The Appellant submits that his evidence was that his father was going to send him money upon his arrival in Canada and that his father told him the agent would tell him how to get to XXXX. He argues that given his father was arrested shortly after he arrived in Canada it was not possible for his father to send him the money. [48] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that it has found the Appellant's allegation that his father was arrested is not credible. Regardless, even if the Appellant's father had been arrested no explanation was provided why his mother, his brother or his father's lawyer could not have acted on his father's behalf and send the money to him. [49] The RAD agrees with the RPD and finds that the Appellant did not have any intention of attending university in Canada. Delay in Claim [50] The RPD drew an adverse inference from the Appellant's delay in claiming refugee protection. The RPD noted that the Appellant arrived in Canada in XXXX 2015 but did not make a refugee claim until March 2016. The RPD rejected the Appellant's explanation that he did not know what a refugee claim was. [51] The Appellant submits that he testified that even though his father had been arrested he still intended on going to University and his father's lawyer had assured him that his father would be released on bail. It was only after he realized that his father would not get bail that he started to make inquiries about what he could do to remain in Canada. He argues there was an adequate explanation for his delay however the RPD failed to address his explanation. [52] The RAD is not persuaded by the Appellant's argument in this regard. The RAD notes that given the Appellant did not attend university in accordance with his visa requirements he was subject to removal from Canada. As such, it is reasonable to expect that he would have made inquiries to regularize his stay in Canada given the risk he alleged he faced upon return to Bangladesh. [53] Furthermore, the RAD notes that the RAD has found that the Appellant's allegation that his father was arrested is not credible. The RAD has also found that the Appellant's allegation that he came to Canada with the intent of attending university is not credible. Accordingly the RAD finds his allegation that he was still planning on going to university once he received money from this father after his release on bail, is not credible. Brother's Kidnapping [54] The Appellant has alleged that his brother was kidnapped by the same cadres that kidnapped him. The RPD found the Appellant's allegation that his brother was kidnapped was not credible. The Appellant has not contested this finding of the RPD. CONCLUSION [55] In summary, the RAD finds based on the totality of the adverse credibility findings noted above, that the Appellant's allegations that he was targeted, assaulted, and kidnapped in Bangladesh because of his father's political activism is not credible. Having considered all of the evidence, the RAD determines there is insufficient credible evidence to find that there is a serious possibility the Appellant would be persecuted in Bangladesh, or that, on a balance of probabilities, he would be personally subjected to a danger of torture or face a risk to life or a risk of cruel and unusual treatment or punishment there. [56] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the Refugee Appeal Division confirms the decision of the Refugee Protection Division. The Appellant's appeal is denied. (signed) "L. Favreau" L. Favreau December 19, 2016 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Raza, 2007 FCA 385. 5 Raza, 2007 FCA 385, para. 13.3(a). 6 Raza, 2007 FCA 385, para. 16. 7 Raza, 2007 FCA 385, para. 13.5(b). 8 Raza, 2007 FCA 385, para. 13.5(a). 9 Raza, 2007 FCA 385, para. 13.3(b). 10 Raza, 2007 FCA 385, para. 13.5(a). 11 Raza, 2007 FCA 385. 12 RPD-1, RPD's Record, National Documentation Package Bangladesh (September 30, 2015) Item 3.6 13 Ibid 14 RPD-1, National Documentation Package Bangladesh (September 30, 2015) Item 3.3 15 Ibid, item 3.7 16 RPD-1, RPD's Record, at p.268 --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-11868