TB5-03286

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 : TB5-03286 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 June 10 , 2015 Date de la décision Panel Leonard Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Douglas Lehrer Barrister and Solicitor 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 (the Appellant), a citizen of Bangladesh, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of his appeal. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD, that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he cannot return to Bangladesh because he fears he is at risk of harm from members of the Jamaat-e-Islami (JI) extremist group. He alleges that he is being targeted by the JI because of his progressive Muslim views and his association with and protection of Hindus. [4] The Appellant's application for refugee protection was heard on January 27, 2015. In a decision of March 11, 2015, the RPD rejected the claim, finding that the Appellant was not credible. ANALYSIS Role of the RAD [5] The Appellant has made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court 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. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It 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. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [6] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [7] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD or to other findings where the RPD has a particular advantage in reaching its conclusions. ANALYSIS OF THE MERITS OF THE APPEAL [8] The Appellant submits that the erred in its determination of his claim. He submits that the RPD made errors in its determination of the following: 1) Credibility findings; 2) Delay in making his claim; 3) Delay in leaving Bangladesh; 4) Appellant Profile and Risk; and, 5) RPD's treatment of the Appellant's corroborating documents. Credibility [9] The Appellant submits that while the RPD stated in its reasons that there were inconsistencies and omissions in his testimony, the RPD did not specify any inconsistencies or omissions in his testimony. The Appellant argues that there were no inconsistencies or omissions in his testimony that were significant or unexplained. [10] The RAD agrees with the Appellant that the RPD reasons do not adequately specify the inconsistencies in the Appellant's testimony. However, the RAD finds after its own review and assessment of the evidence including a review of the hearing recording, that there were a number of credibility concerns raised by the RPD during the hearing. It remains unclear why the RPD did not include these concerns in its reasons; perhaps it was merely an oversight. Regardless of the reason, the RAD finds that jurisprudence requires the RAD to conduct its own assessment of the evidence. Accordingly, the RAD finds that it is open to the RAD to review the Appellant's testimony and make its own findings with regard to the Appellant's credibility on those issues raised by the RPD during the hearing. Attendance at Festivals and Helping Hindus [11] The Appellant has alleged that he is being targeted by the JI due to his involvement with the Hindu community in his local area. He alleged that he is a progressive Muslim and has many Hindu friends. He often helped his Hindu friends and attended many Hindu festivals. After the leader of the JI was sentenced for war crimes, members of the JI commenced a campaign of terror against the Hindu community across the country. The Appellant alleges that he and his progressive Muslim friends assisted their Hindu neighbours when riots broke out in their community. [12] After reviewing the Appellant's testimony in this regard, the RAD finds that the Appellant's testimony lacked credibility. Although questioned extensively by both the RPD and his own counsel about his involvement with the Hindu community and the festivals he alleges attended, the RAD found the Appellant's testimony was vague, inconsistent and evolving. [13] In particular, the RAD notes that although the Appellant testified that he had assisted Hindu neighbours in his community in 2013, when asked by his counsel when he last attended a festival or helped a Hindu he testified that he did not recall. When pressed by his counsel for a response, the Appellant testified the last time was in 2011. He later testified under examination by his counsel that he helped his Hindu neighbours in XXXX 2013. [14] When the contradiction was pointed out to him by his counsel, the Appellant explained he was confused by the question and only believed he was being asked when the last time he attended a Hindu festival. The Appellant's counsel argued that the Appellant's explanation was reasonable due to the "double barrel nature" of the question [two questions in one]. [15] The RAD is not persuaded by the Appellant's explanation or counsel's argument. The RAD finds that despite having two components, the question was clear. The RAD also notes, the Appellant testified that he had no difficulty understanding the translator. More importantly, the RAD notes that after the Appellant responded that he last helped or attended a Hindu festival in 2011, his counsel attempted to clarify his response by asking him if he had helped Hindus in 2013. The Appellant testified at that time that he could not recall helping Hindus in 2013. As such, the RAD finds that there was no confusion on the part of the Appellant in understanding the question put to him. It was only when it was again pointed out to the Appellant by his counsel that he alleged that he had helped Hindus after the sentencing of the JI leader, the Appellant changed his testimony and stated that he did help Hindus in 2013. [16] Furthermore, the RAD notes that the Appellant's evidence with regard to his activities in assisting Hindus or in attending Hindu Festivals were decidedly vague. When asked by his counsel if he had helped Hindus after 2013, he testified that he did not help them and when asked why he did not help he testified that he could not remember. [17] In addition, although he testified that he had been attending numerous Hindu festivals over several years, he could not provide any specifics. The Appellant was repeatedly asked by the RPD if he was engaged in helping any Hindus or attending any Hindu festivals following March 2013. The Appellant responded on each occasion that he could not recall. [18] The RAD finds that the Appellant's testimony in this regard was internally inconsistent evolving and lacked credibility. Why Appellant only one targeted? [19] The Appellant alleged that he and a group of ten to fifteen progressive Muslims were involved in helping Hindu neighbours when riots broke out in their community in 2013. The Appellant was questioned by the RPD why he would be singled out and targeted by JI among this group of individuals of similar profiles. The RPD noted that the Appellant testified that he was not politically active and that he had a low profile as a Muslim in his community. [20] Under questioning of the RPD, the Appellant initially testified that he had no knowledge if any of his fellow progressive Muslims who went to the aid of Hindu neighbours were targeted by JI or experienced any difficulty. The Appellant also testified that he had not contacted them or asked them if they experienced similar problems. However, later in his testimony when questioned by the RPD why he would not ask if others were being targeted, the Appellant altered his testimony and stated that he had asked his fellow progressive Muslims and that one of them told him that he too received calls from the JI. Although he first testified he did not know the nature of the calls he received, he changed his testimony and stated that the calls were limited to name calling. [21] Although this inconsistency was pointed out to the Appellant, he could not provide a reasonable explanation and simply stated that he misunderstood the question. The RAD review of that portion of the recording of the hearing reveals that the question was clear. Again the RAD notes that the Appellant testified in the hearing that he did not have difficulty understanding the translator. The RAD draws an adverse credibility finding from the Appellant's inconstant and vague testimony in this regard. [22] As pointed out by the RPD, the Appellant's allegations that he was specifically targeted makes little sense in light of his testimony that only one of his fellow progressive Muslims reported receiving calls following their alleged efforts to protect Hindu neighbours. The RAD notes that the Appellant has alleged that those other fellow progressive Muslims have the same profiles as him including attending Hindu festivals. The Appellant has testified that he is not politically active and does not belong to a political party. There is nothing in his testimony which sets him apart from those other progressive Muslims who engaged in similar activities yet, he is the only one to be attacked and have his life threatened. Furthermore, as noted by the RPD the Appellant's testimony about the alleged attacks he suffered is inconsistent with the objective evidence of how the JI normally approaches its victims. The RPD noted that the objective evidence establishes that the JI routinely accost individuals at their homes and in their place of work. However, the Appellant was never accosted at his place of employment or his home despite his allegation that they were so intent on finding him that they pursued him to other cities in Bangladesh. Furthermore, the RPD noted that while the Appellant has tendered some evidence which establishes that some Muslim households in some communities in Bangladesh were targeted by the JI, there was no evidence that the Appellant's community was one of those communities. The RAD finds on the basis of the foregoing, it is neither plausible nor credible that the Appellant was the only one among the ten to fifteen progressive Muslims engaged in helping Hindu neighbours in his community to face physical attacks and death threats at the hands of the JI. [23] The RAD finds on the basis of the totality of the findings noted above and on a balance of probabilities that the Appellant's allegations that he is being pursued by the JI because of his attendance at Hindu festivals and for helping Hindus during the riots in XXXX 2013 is not credible. Failure to Claim During First Trip to Canada and Reavailment to Bangladesh [24] The RPD drew an adverse credibility finding based on the Appellant's failure to claim refugee protection when he traveled to Canada in April 2013 and reavailment to Bangladesh. The RPD also drew an adverse finding with regard to the Appellant's subjective fear. [25] The Appellant submits that he provided three reasons why he did not claim refugee protection when he traveled to Canada in April 2013. He argues that he provided the explanation he did not believe the calls to be serious, that he believed that the JI had lost interest in him because the calls had diminished and, that he needed to look after his elderly mother. The Appellant argues that the RPD failed to consider his full explanation for not claiming and only focused on his explanation involving the need to return for his mother. [26] The RAD is not persuaded by the Appellant's argument in this regard. After the RAD's review and assessment of the evidence including the recording of the hearing, the RAD notes that when questioned by the RPD if he had considered claiming refugee protection when he traveled to Canada at this time, the Appellant testified that he did not because he needed to return to Bangladesh to look after his elderly mother and the purpose of his trip to Canada at that time was to visit. [27] Although the Appellant alleges that he provided the explanation that he did not consider the calls a serious threat, the RAD's review of his testimony shows that the explanation was not offered in connection with the RPD's question about why he did not seek refugee protection at that time. The testimony relied upon was actually in response to different line of questioning by the RPD unrelated to the issue of failing to claim in April 2013. [28] In addition, while it is true that the Appellant alleged in his BoC narrative that when the phone calls diminished in April he believed that JI had lost interest in him, he did not testify the reason he chose not to claim at that time. [29] The RAD finds that the RPD addressed the only explanation provided by the Appellant in his testimony. The RAD further notes that although the Appellant has alleged that he needed to look after his elderly mother, two of the Appellant's four sisters reside in the same city as she. In addition, the Appellant has another two sisters and a brother in other parts of Bangladesh who could provide support to his mother. The RAD notes that the RPD during the hearing raised the fact that the Appellant frequently traveled out of the country for extended periods of time and that he alleged he was in hiding in Bangladesh for nearly five months. Furthermore, the Appellant has testified that his mother is being currently cared for by his sisters. Like the RPD, the RAD rejects the Appellant's explanation. Accordingly, the appellant's argument in this regard fails. [30] The Appellant further argues that he is in a catch-22 scenario because had he claimed at that time, his claim would not have been successful because the incidents had not reached the intensity and persistence that persecution requires. He argues that at the time it was unclear if the calls were serious or hollow and he had not sought state protection or sought to move elsewhere in Bangladesh. In addition, the Appellant argues that because his ultimate decision to claim refugee protection was based on specific factors or events, it was an error to question his failure to claim at this time. [31] The RAD is not persuaded by the Appellant's argument in this regard. As noted by the RPD, the Appellant has acknowledged that he was aware of the extremely violent nature of the JI. Although he has alleged that the calls were not a serious threat, he acknowledged in his testimony that he was fearful of what JI would do to him and that he was told by the JI "it would not be a good outcome for him". He further testified that he was threatened with harm. The RAD assessment of the objective evidence makes it clear that JI is a violent extremist group who leader has been sentenced to death for war crimes. The violence perpetrated by this extremist group on innocents in Bangladesh is well documented. [32] In light of the Appellant's knowledge of this group and his admitted fear in returning to Bangladesh it is reasonable to expect that the Appellant would consider the prospect of asylum at this time. However, his testimony was that he did not even consider making a refugee claim. [33] The RAD disagrees with the Appellant that his claim would not have been successful if he had claimed at this time. The RAD finds that given the violent nature of this dangerous group and the threats that had been made against the Appellant, there was sufficient reason, if the Appellant was found to be a credible witness, for a claim for refugee protection to have succeeded. Delay in Departure [34] The RPD drew an adverse credibility finding based on the Appellant's failure to leave Bangladesh after members of the JI assaulted and injured him and threatened to kill him and burn his body. The RPD noted that the Appellant had a valid Canadian visa yet he did not depart from Bangladesh for another nine months following the assault and threats. [35] The Appellant submits that the RPD's finding in this regard cannot be sustained. He argues that his decision to leave Bangladesh had a cumulative element which arose from a number of events and which the RPD failed to recognize. He further argues that he provided a reasonable explanation that he did not want to leave his mother alone in Bangladesh and that he was reluctant to allow extremist to force him to leave the country he loved. The Appellant argues that he adequately explained the timing of his departure from Bangladesh. [36] The RAD is not persuaded by the Appellant's argument. As noted by the RPD, the Appellant was well aware of the violent nature of the JI and alleges that he had been warned by the police that the JI was a powerful organization and that the police were unable to help him. The RPD noted that although the Appellant had a valid visa, he chose not to leave after the first attack in XXXX 2013 in which he alleges he was hospitalized and during which attack he was threatened with death. The RAD also noted that the Appellant delayed his departure following a second attack in XXXX 2014 in which he was chased by men with sticks and swords. Even though he alleges the JI continued to pursue him while he was in other parts of Bangladesh, he still delayed his departure. Furthermore, the RAD notes that when questioned by the RPD why he chose to go into hiding rather than leave Bangladesh, the Appellant testified that he thought things would get better. However, later in his testimony the Appellant contradicted his earlier testimony and stated that he knew that things would continue to get "worse and worse" for him in Bangladesh. [37] The RAD agrees with the RPD and rejects the Appellant's explanation. The Appellant has five siblings in Bangladesh who can and some of whom have been providing assistance to his mother. Given the great risk to his life it is reasonable to expect that the Appellant would exercise the use of the visa in order to protect his life. He alleges he was hiding in Bangladesh because he feared he would be killed yet he had the means to protect himself by using the visa he had been genuinely issued. His failure to use the visa to escape the grave risk he alleged he faced undermines his subjective fear and the credibility of the allegations he has made in this regard. The RAD finds that the Appellant's argument in this regard fails. The Appellant Lack of Profile [38] The Appellant alleges that the RPD found him to lack the profile of someone who would be targeted by the JI. He argues that a lack of profile cannot be used to determine he is not a convention refugee when there is no evidence to suggest that someone with a higher profile would be the ideal target for persecution by the JI. He argues that there is no support in the RPD's finding that only Muslims with high profile are persecuted by JI. [39] The RAD is not persuaded by the Appellant's argument in this regard. The RAD finds based on the totality of the evidence in the record, including the objective evidence and the adverse credibility findings that the Appellant has not provided sufficient reliable evidence that he holds a profile that would suggest that he would be targeted by JI in Bangladesh. The RPD Erred in its Treatment of the Corroborating Documents [40] The Appellant submits that the RPD erred in its treatment of his corroborating documents. The Appellant argues that the RPD failed to examine and consider the documents prior to arriving at a conclusion as to his credibility. The Appellant further argue that a blanket state that no probative value was assigned to this evidence because of a negative credibility finding does not suffice. [41] The RAD is not persuaded by the Appellant's argument in this regard. While it is true that in most cases it is necessary for the RPD to conduct an independent assessment of an Appellant's corroborating documents, there are instances where documents can be afforded little weight on the basis of the RPD's other credibility findings. [42] In this case, the RAD notes that the RPD has found that the Appellant was not credible with respect to the central issues of his claim and that the Appellant's allegations cannot be believed. The RAD also notes that the RPD cited the documentary evidence in the record that speaks to the prevalence and availability of fraudulent documents in Bangladesh. [43] The RAD finds that, based on its own assessment of the documents in question, there is sufficient evidence in the record for the RAD to give little weight to these documents in establishing the central elements of the Appellant's claim. [44] The RAD also notes that many of the documents provide accounts of information that was provided to the author from the Appellant. As such, the credibility findings with regard to the Appellant's allegations that he is being pursued and is at risk of harm from the JI diminish the weight that can be given these documents. In addition, the RAD notes that all of these documents are hand-written and none of the documents are notarized or are accompanied by documentation which verifies the author's identity or otherwise establishes the provenance of the documents. The RAD notes that the most of the documents utilize the same format and many share the same unique closing terminology which indicates the letters of support were written following instruction or using a guide or template, undermining the objective nature of the documents. [45] The Appellant also submits that the RPD rejected the medical notes from Bangladesh because the doctor did not explain the cause of his injuries. The Appellant argues that his medical evidence cannot be rejected on that basis. [46] The RAD finds that, while the Appellant's argument in this regard has merit, there is sufficient reason to give this document little weight. The RAD's examination of the document reveals that, while the document is purported to a medical document from the doctor who treated the Appellant for trauma injuries at a medical clinic, the RAD notes that the medial certificate is a handwritten note on a prescription pad rather than an actual medical record. The RAD further notes that the document was dated fourteen months after the Appellant was treated. The RAD finds that it is highly improbable that a doctor in a medical clinic could recall specific patient information including the nature of injuries, treatment rendered, as well as the dates and times of admission and discharge without referring to medical records. Accordingly, the RAD finds it is reasonable to expect that the Appellant ought to be able to produce the actual medical records of his alleged medical treatment at this clinic. The RAD again notes that the document lacks sufficient corroboration which verifies the author's identity or otherwise establishes the provenance of the document. The RAD finds with these concerns and the previously noted concerns with regard to the credibility of the Appellant's central allegations and the prevalence of fraudulent documents, little weight can be afforded to this document. CONCLUSION [47] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the recording of the hearing, the RAD agrees with the RPD's finding that the Appellant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture in Bangladesh. [48] The RAD finds that the Appellant is neither a Convention refugee nor a person in need of protection. Pursuant to ss. 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "Leonard Favreau" Leonard Favreau June 10, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014; 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014; 2014 FC 952. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-03286