TB8-07970

RAD File / Dossier de la SAR : TB8-07970 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision July 26, 2019 Date de la décision Panel Patricia Broad Tribunal Counsel for the person who is the subject of the appeal David P. Yerzy Barrister and Solicitor Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Principal Appellant), a citizen of Bangladesh, appeals a decision of the Refugee Protection Division (RPD), dated February 15, 2018, rejecting his claim for refugee protection. [2] Having reviewed the record, I find that the RPD erred by not considering all of the evidence. Further, having reviewed the evidence, I substitute the decision and find that the Appellant is a Convention refugee as well as a person in need of protection. BACKGROUND [3] The Appellant was born on XXXX XXXX XXXX 1992 in Dhaka. He is 26 years old. His father is the vice-president of a bank in Dhaka. He has issues with substance abuse and violence. He has been violent with the Appellant's mother and the Appellant. The Appellant's mother and sister have fled to Canada; the mother and sister were found to be Convention refugees. [4] The RPD found that the Appellant was credible on some, but not all, issues. It found that he had an internal flight alternative in Chittagong. The Appellant has appealed to the Refugee Appeal Division (RAD). ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL [5] The Appellant presented the following evidence upon appeal to the RAD: (1) an affidavit from the Appellant's grandfather, XXXX XXXX, dated April 1, 2018.1 [6] According to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA or the Act), the Appellant must establish that the evidence arose after the rejection of his claim or that it was not reasonably available. Alternatively, the Appellant must establish that he could not have reasonably been expected to have presented the evidence at the time of the rejection. In terms of evidence that arose after the rejection of the claim, it is the content of the evidence and not the date of the document that is determinative. Rule 3 states that there should be submissions on this as well as the relevance of the evidence. [7] I have also considered the "Raza principles" as modified by Federal Court of Appeal (FCA) in Singh.2 It directs the Tribunal to consider the credibility, relevance and the newness of the evidence. In terms of credibility, the RAD should consider credibility in terms of its source and the circumstances that it came into existence. This is different than a credibility assessment for the purpose of adjudicating the appeal, which looks at the credibility of the content of the document. [8] The affidavit is dated April 1, 2018. It is dated after the date of the RPD's decision; the Appellant could not reasonably have been expected to have provided it before the decision. Similarly, in this case, the Appellant could not reasonably have been expected to know that there would be a finding of insufficient evidence to ascertain that the father had political connections. The affidavit addresses this finding by indicating that the deponent had seen the father and an Awami League party leader eating lunch and that there are cultural reasons why the father's connections would not be shared with the family. The document is relevant, and this evidence is new. Further, there are not issues with the source and the circumstances of it. It is admitted into evidence. DETERMINATION ON WHETHER TO HOLD AN ORAL HEARING [9] Subsection 110(6) of the Act delineates when the RAD is permitted to hold a hearing. It states that the RAD can hold a hearing when there is new evidence that raises a serious credibility issue. Further, the evidence must be central to the decision. In addition, there is a requirement that the evidence would justify a final decision allowing or rejecting the claim. In this case, the evidence does not meet the criteria. The RAD will not hold a hearing. ANALYSIS OF THE MERITS OF THE APPEAL [10] I have conducted an independent assessment of the evidence and arguments.3 This review includes listening to the entire recording of the hearing, which is in evidence. Deference to Credibility Assessment [11] In this instance, the RPD did not have any real advantage in assessing the credibility that would lead to deference to its finding regarding it. The RPD does not state that there were any difficulties with the Appellant's testimony where the RPD would have been in a better position than the RAD to judge it. The RPD made findings based on the evidence, such as the finding that the Appellant exaggerated the level of harm that he would face in Chittagong and that there is insufficient evidence that the agent of persecution has political connections. These comments relate to the substance of the testimony and not to any behavioural or any other item that the RPD could observe and the RAD could not. Having reviewed the record, including listening to the recording of hearing, I find that I am in the same position as the Appellant. For these reasons, I do not find that the credibility findings are owed deference. Analysis [12] The weight of the evidence leads to some clear conclusions. I accept that the Appellant's father, a vice-president of a bank, was an abusive alcoholic. He was violent both with the Appellant's mother and with the Appellant. In addition, he was verbally abusive. I accept that the Appellant was abused and had been hospitalized for an assault.4 [13] The Appellant's mother and sister also came to Canada. They were found to be Convention refugees. The narrative of the mother's Basis of Claim is on record. As their claims were at one point joined before the RPD, this also serves as part of the account of the Appellant's claim. [14] For these reasons, I find that there is a serious possibility of persecution. The Appellant is a family member of an abusive man. I accept that the mother reported the threats made to the Appellant, and the father bribed the police to evade charges. The state is not providing assistance. [15] In other words, as women who are subjected to domestic violence can be members of a particular social group, other members of the family can also be part of a particular social group for the purpose of the Convention.5 While I accept that the Appellant was physically and verbally abused, years of witnessing abuse can also cause harm.6 [16] In addition, it is more likely than not that the Appellant is a person in need of protection, in accordance with Section 97 of the Act. The constant threat of abuse from a violent and unstable man is cruel and unusual. State Protection [17] Further, there is no state protection available for the Appellant. His father is influential, a vice-president of a bank. In the past, he has shown that he is able to use his influence to avoid charges of abuse. The father, the agent of persecution, is a man of influence. He has influence with local leaders and has lunched with an Awami League party leader.7 This is consistent with the documentary evidence that shows that there is a high level of corruption in Bangladesh.8 The state does not enforce laws regarding domestic violence.9 State protection is not available for the Appellant; it is more likely than not that he would not be able to avail himself of it. Internal Flight Alternative [18] The test for assessing an internal flight alternative is two-pronged and is set out in the Federal Court of Appeal's decision in Rasaratnam.10 (1) The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. (2) Moreover, the conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claimant, for him to seek refuge there.11 [19] Both prongs must be satisfied to find that the Appellant has an internal flight alternative. Once the issue of internal flight alternative has been raised and the potential internal flight alternatives have been identified, the burden of proof rests with the Appellant to show that he does not have an internal flight alternative. The finding of an internal flight alternative must be based on a distinct evaluation of the region for that purpose taking into account the Appellant's personal circumstances. An internal flight alternative must be a realistic and attainable option. The Appellant cannot be required to encounter great physical danger or undergo undue hardship in traveling there and staying there. [20] The RPD found that the Appellant had an internal flight alternative in Chittagong; that there was not a serious possibility of persecution in Chittagong; that the evidence about the father's influence and political connections was vague; that it was not credible; and that there was insufficient credible evidence to support a conclusion that the agent of persecution would find the Appellant in Chittagong. [21] I have considered this conclusion. I note that, when the father found them when they fled, they were with a friend. Further, while the Appellant argues that influence and political connections should not be the only factors to consider, it is worth considering that the RPD was addressing the Appellant's arguments. There is indeed a large population in Bangladesh, and with 5.2 million people, Chittagong is a large city. [22] However, I find that it is more likely than not that the agent of persecution would find the Appellant. There is a serious possibility of persecution and/or it is more likely than not that the Appellant would be a person in need of protection in Chittagong for the following reasons. [23] While the father is a non-state agent of persecution, it is more likely than not that he has links with the state. He is a prominent person in Bangladesh; he is the XXXX XXXX XXXX of the XXXX XXXX in Dhaka, the national's capital. It is more likely than not that he is an influential, connected person. I accept the grandfather's account that he saw the father eating lunch with the local leader of the Awami League.12 It is worth pointing out that, in this case, the local leader is the leader of the nation's capital. The father has shown that he knows how to use the system and make it work for him, for instance, when he avoided charges. Further, it is more likely than not that he has a significant amount of money. The weight of the evidence shows that Bangladesh has a high level of corruption; with money and resources, it is more likely than not that the agent of persecution, the Appellant's father, could bribe people to find the Appellant. [24] I have considered the RPD's findings that the Appellant's account of the political connections was vague and lacked corroborative evidence. However, I have weighed that consideration with the likelihood that a vice-president of a bank would have political connections and with the accepted facts such as the father successfully bribing the police and having lunch with a leader of the Awami League party. The weight leads to the conclusion that the agent of persecution does have connections. [25] In addition, I do not find that, because his wife is in Canada, the son is less likely to be at risk. The evidence shows that the son also faced violence. The agent of persecution is a violent man with a substance abuse issue. As I accept that the father behaved in this manner in the past, his future behavior is likely to be similar to that in the past. In fact, without the mother, the father could be looking for someone to take out his aggressions. However, past behavior, in this case, is the best indicator and the best evidence available of the agent of persecution's likely future behavior. Further, given the father's resources, it is unlikely that there is anywhere that the Appellant would be safe in Bangladesh. [26] For these reasons, I find that the Appellant would not be safe in Bangladesh. It is more likely than not that the agent of persecution has the resources to find and harm the Appellant. Both prongs of the test for an internal flight alternative must be satisfied to find that there is an internal flight alternative. As I find that there is a serious possibility of persecution, or that it is more likely than not that the Appellant is a person in need of protection, I do not have to consider the second prong of whether it is reasonable for the Appellant to relocate in Bangladesh. It is sufficient to find that, as the first prong has not been met, the Appellant does not have an internal flight alternative. CONCLUSION [27] The appeal is allowed. Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act, the Refugee Appeal Division sets aside the determination of the Refugee Protection Division and substitutes its own determination, that the Appellant is a Convention refugee. There is also sufficient evidence that he is a person in need of protection. (signed) "Patricia Broad" Patricia Broad July 26, 2019 Date 1 Exhibit P-2, Appellant's Record, at pp. 47-50. 2 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 3 Tekle, Dawit Abraham v. M.C.I. (F.C., no. IMM-1727-17), Annis, November 15, 2017, 2017 FC 1040. 4 Exhibit RPD-1, RPD Record, at p. 84, Medical Report from XXXX XXXX XXXX. 5 Canada (Attorney General) v. Ward, Patrick Francis, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85. 6 Modeste, Sherisa Shermika Patricia v. M.C.I. (F.C., no. IMM-9659-12), Russell, December 18, 2013, 2013 FC 1262. 7 Exhibit RPD-1, RPD Record, at pp. 86-87, Affidavit of XXXX XXXX; and Exhibit P-2, Appellant's Record, at pp. 49-50. 8 NDP for Bangladesh (October 31, 2017), item 2.1, United States Department of State, Bangladesh: Country Reports on Human Rights Practices for 2016, March 3, 2017, which discusses corruption, especially at pp. 29-30. 9 Ibid., NDP for Bangladesh, item 2.1 at pp. 33-36. 10 Rasaratnam, Sivaganthan v. M.E.I. (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 11 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 12 Exhibit P-2, Appellant's Record, at pp. 49-50, Affidavit of XXXX XXXX. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-07970 RAD.25.02 (April 04, 2019) Disponible en français 9 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