TB5-04065

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 : TB5-04065 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX(A.K.A.XXXX XXXX XXXX XXXX XXXX XXXX XXXX(A.K.A XXXX XXXX XXXX XXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision September 16, 2015 Date de la décision Panel Atam Uppal Tribunal Counsel for the person(s) who is(are)the subject of the appeal Kieran Verboven and Syed Atiqur Rahman 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 XXXX (the Appellant), a citizen of Bangladesh, appeals a negative decision of the Refugee Protection Division (RPD) dated March 16, 2015. DETERMINATION [2] Pursuant to ss. 111(1)(a) of the Immigration and Refugee Protection Act (IRPA or the Act), the Refugee Appeal Division (RAD) confirms the RPD's determination. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he fears persecution at the hands of the Awami League's supporters because he was active in the Bangladesh National Party (BNP). The Appellant's father secured a job offer for him in Canada to remove him from danger. The Appellant worked in XXXX at an XXXX restaurant1 for two years (June 2012 to July 2014). The Appellant learnt that a warrant has been issued for his arrest in March 2014, and therefore he also fears arrest and persecution from the authorities if he were to return to Bangladesh. He claimed refugee protection only after his work permit had expired and his application for the renewal of his work permit was refused. [4] His claim was heard on March 5, 2015, and the RPD rejected the claim by finding that the Appellant was not credible and that he lacked a well-founded fear of persecution. [5] On appeal, the Appellant did not provide documents to be considered as new evidence pursuant to s. 110(4) of the Act. The Appellant requests an oral hearing before the RAD pursuant to s. 110(6) - "if the RAD requires it." Since there is no new evidence, this appeal is considered on the basis of the Appellant's Record, the RPD's Record, and the Memorandum of the Appellant. [6] The Appellant requests that the RAD allow the appeal, quash the decision of the RPD and find that the Appellant is a protected person. In the alternative, the Appellant requests that the matter be sent back to the RPD for a de Novo hearing. Issues [7] The Appellant did not list his issues in the Appellant's Memorandum. I will consider the issue as follows: is the Appellant a Convention refugee or a person in need of protection? Role of the RAD/ Standard of Review [8] The Appellant did not make submissions on the appropriate standard of review or the role of the RAD. [9] The Federal Court decision in Huruglica2 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. The jurisprudence on the appropriate standard of review is evolving but, at present, the decision of Justice Phelan is widely followed. That decision states: [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'. [10] Guided by this decision, I will consider the evidence to determine whether the Appellant is a Convention refugee or a person in need of protection. I will also recognize and respect the credibility findings of the RPD where it enjoyed a particular advantage. ANALYSIS Procedural Fairness [11] The Appellant correctly states on page 54 of the Appellant's record that "The Panel has the obligation to provide procedural fairness, not the claimant to request it".3 However, I am not persuaded that the Appellant has clearly stated how the RPD denied procedural fairness. The Appellant also submits that the RPD's finding of a lack of credibility is based on a misunderstanding of the evidence. [12] I note that the Appellant was represented by two counsels at the RPD hearing; however, they did not raise this issue at the hearing. I note that the same counsels are now raising the issue of procedural fairness on appeal. The Appellant argues that he was not asked to clarify the confusion in the Basis of Claim (BOC) narrative. I am not persuaded that the Appellant was denied procedural fairness of natural justice. [13] Pursuant to the RAD Rule 3(3)(g),4 Appellants are required to includes full and detailed submissions regarding: (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing [14] The Appellant did not follow this rule and did not specify where the alleged errors are. Thus, I cannot find merit in this allegation. Therefore, I will consider other arguments. [15] The RPD rejected the claim based on a "well-founded fear of persecution, credibility and delay."5 The RPD noted several material omissions, inconsistencies, delay in claiming and implausibilities when it considered the Appellant's explanations and was not satisfied that the explanations were reasonable. [16] The genesis of the claim is that the Appellant allegedly joined the BNP in XXXX 2011 when he was XXXX years of age, and thus is being targeted for persecution in Bangladesh by authorities and the supporters of the ruling party, the Awami League. The story is rather straight forward, and one would expect straight forward evidence without omissions or inconsistencies, particularly regarding the documents submitted by the Appellant to corroborate his own story. Unfortunately, that is not the case here. [17] The Appellant provided a transcript of the audio recording of the hearing; unfortunately, the transcript is neither time stamped nor has line numbering that would make citations easy. I note that the Appellant's counsel at the RPD hearing transcribed the audio recording of the hearing. Despite that effort, the Appellant makes no reference to the transcript in the arguments in the Memorandum. I would hope that counsel would consider adding time and/or line numbering in future transcripts and refer to the transcript in his arguments as required by RAD Rule 3(3)(g) mentioned above. [18] The Appellant argues that the RPD considered peripheral issues; I am not persuaded. The alleged membership in the BNP by the Appellant at the age of XXXX and his father's position in the BNP at a local village branch, are the root causes of his problems. Thus, one would reasonably expect clear and uncontradicted evidence on the central issue, especially considering that he provides a plethora of other evidence including his educational and work background; yet the most important documents related to his claim were not provided, and no reasonable efforts were made to obtain those. BNP Membership [19] The Appellant provided conflicting information regarding when he was eligible to become a member of the BNP. He testified6 and confirmed that "one cannot be the member of BNP until the age of XXXX..." and that he was asked to fill out a form to become a member of the BNP party. The documentary evidence, however, describes the process to become a member of the BNP party differently, and it states:7 A prospective primary member is required to meet a leader of the BNP local chapter (usually the Ward leader) and fill up the three parts of the standardized membership document with [a] unique identifiable number. He pays Taka 5 (approximately Canadian 8 cents) as the membership fee, which is collected by the leader on behalf of the local chapter. The signature of the applicant affirms his commitment to the party's constitution. The applicant's membership becomes effective when it is signed by the District BNP President. [20] If there is an age restriction of XXXX years, as the Appellant alleges, the documents, which provide significant details about the BNP membership process, would show it. [21] The document mentioned above also shows that: The standardized membership document contains three identical parts (one part for the member to retain as a receipt or proof of membership, one to be retained by the local district chapter of the BNP as a copy of the application, while the third part is to be sent back to the BNP Central Office as the main application for membership) with a unique identifiable number, the party's red and green flag in the header and background. The booklet is issued by the BNP Central Office, and the three identical parts include the name of the member, father's/husband's name, age, occupation, educational qualification, address, phone, mobile number and signature of the member. The three identical parts, including the receipt or proof of membership held by the member, have pre-printed signatures of the party Chairperson on the left and are counter-signed by the local BNP leader. [22] I also note that the Appellant testified that his father was able to send him a copy of the arrest warrant by mail8 prior to the hearing. The Appellant, however, provided no corroborative evidence regarding his membership and did not make any efforts to try to obtain such evidence. The Appellant testified that he has the required evidence in the form of photos at BNP events, processions and meetings, and his BNP membership card. These are at his home in a file folder with his father. His father made arrangements from Bangladesh to obtain a work permit for the Appellant and sent him to work and live safely in Canada. Therefore, it is difficult to reconcile the Appellant's testimony that his father could not send him any of the corroborative evidence about his membership or activities in the three years he has been in Canada. The Appellant also testified that his father's lawyer in Bangladesh helped him obtain a copy of the arrest warrant. [23] The Appellant was asked "what steps did you take in order to become a member?"9 The Appellant was evasive despite the question being repeated several times. I note that the Appellant never provided an answer to this specific question about the process of joining the BNP or how he joined the party. In response to his own counsel asking the same question, the Appellant responded, "In order to be a BNP member, you have to get involved in activities for the party, and later on they make you a member."10 This statement is not consistent with the process described in the documentary evidence to join the BNP party. [24] On the issue of the absence of corroborative evidence, it would be an error on the part of the RPD to find the Appellant not credible solely due to the absence of corroborative evidence. However, the following case reflects the circumstances of this case more closely. In Amarapala,11 the Court stated: [10] It is well established that a panel cannot make negative inferences solely from the fact that a refugee claimant failed to produce any extrinsic documents to corroborate a claim. But where there are valid reasons to doubt a claimant's credibility, a failure to provide corroborating documentation is a proper consideration for a panel if the Board does not accept the applicant's explanation for failing to produce that evidence. See Singh v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. 755 per O'Reilly J. at paragraph 9. [25] Moreover, in Ding,12 a much more recent case, the Honourable Madam Justice Mactavish stated the following: [14] Ms. Ding argues that the Board erred in making negative credibility findings based upon the lack of corroborating documents supporting her claim. [15] This Court has frequently held that although there is a presumption that sworn evidence is true and will not be undermined by a lack of corroborative evidence, there is an exception to this rule. That is, a negative inference may be drawn against a refugee claimant where the Board does not accept the claimant's explanation for failing to produce evidence when it would reasonably be expected to be available: see, for example, Rojas v. Canada (Minister of Citizenship and Immigration), 2011 FC 849 at para. 6, [2011] F.C.J. No. 1048. That is what happened here, and no error has been demonstrated in this regard. [26] The Appellant's story about his membership in the BNP just does not have a ring of truth to it, especially considering the fact that his father decided after the 2008 elections that the Appellant needed a different country arrangement. The Appellant did move out of Bangladesh in 2012, but I am not persuaded it is because of persecution due to his membership in the BNP. Based on the foregoing, and other reasons to follow, I cannot find that he was a member of the BNP party, as he alleges. Delay in Claiming [27] The Appellant applied for a visa in 2009 and yet never mentioned to the authorities, then or in the subsequent application, that he had any problems or a fear of persecution due to political opinion in Bangladesh since 2008. The RPD noted that the Appellant had problems since 2009, and yet he did not claim protection until 2014. The Appellant argues that the delay in claiming protection is not important because the Appellant had a work permit. [28] I am not persuaded. I note that the Appellant's work ended on July 5, 2014, and the arrest warrant with the Appellant's name13 is dated XXXX XXXX XXXX 2014 (under an alleged act in contravention of the Explosives Act of 1908); however, the Appellant's BOC was signed on December 12, 2014. This delay is not explained reasonably despite the Appellant's argument. The RPD correctly applied the jurisprudence in Niyonkuru,14 where the Court stated, "The possession of a valid visa does not rebut the presumption that a true refugee would claim protection at the first opportunity and does not necessarily justify a delay in claiming refugee protection." [29] The Appellant's documents from the BNP15 show that his father was a member of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. This document makes no reference to the Appellant being a member of the party. I also note that this notice is not signed by the president or the general secretary of the Party, but is signed by the president and secretary of another local branch. The Appellant also provided a letter from the person who is shown as senior vice president (number 2 on the document page 226) that mentions the "court issued summons" for the Appellant and his father. [30] On the issue of delay, the RPD noted that the delay of more than two years "between his arrival in Canada and his claim for protection is significant, and the panel finds that the claimant has failed to give a reasonable explanation."16 I agree. The Appellant's testimony, in response to the RPD, was that he did not know the refugee process and that he was planning to go back to Bangladesh when things settled down. In response to his counsel, however, the Appellant testified that "When I came to Toronto, then I spoke with the community, I spoke to two or three lawyers, then they suggested that if I had false lawsuit against you [sic] since you have no security for your life, then you can seek a protection from the government here, then I went to the lawyer."17 [Emphasis added] [31] Based on the foregoing, I find that the Appellant failed to provide a reasonable explanation for his unusually long delay in claiming protection in Canada. Implausibility of arrest warrant [32] The Appellant testified that he became aware of the arrest warrant in March 2014; however, the Warrant of Arrest was signed by the magistrate on XXXX XXXX, 2014. In my opinion, it is a situation where the RAD can safely make a finding that it is implausible that the Appellant knew of the issuance of an arrest warrant months before it was actually issued. Profile [33] I do not have credible evidence that supports the Appellant's allegation that someone with his profile is targeted for persecution by the Awami League, or the authorities on behalf of the Awami League. As the RPD stated, the claimant is not a high profile member of the BNP, if at all a member. The Appellant's father holds an office but only at the village level branch in Bangladesh, a country with a population of more than 166 million18 in 2014. Documentary evidence also shows that Bangladesh has a rather large number of political parties, at least 11, and numerous political pressure groups, and the BNP alone is a coalition of about 20 parties and has millions of members. [34] Documentary evidence shows that several high ranking officials of opposition parties are persecuted along with media critics of the government. For example, "Bangladesh's security forces launched a brutal crackdown on the opposition. In this report we document the killing or unlawful arrests of 19 opposition leaders and activists in the run-up to and aftermath of the elections".19 The same document states that: In two cases, security forces killed opposition leaders and activists during arrest operations, but where the circumstances indicate that the victims were executed. In 10 other cases, witnesses told Human Rights Watch that opposition party members and activists were arrested by people who either identified themselves as members of security forces or used vehicles marked with the letters RAB. ...In addition to executions and enforced disappearances, security forces arrested thousands of opposition party members and activists across the country. [35] Specific to the BNP, the same document shows, For example on January 7, 2014, police arrested eight BNP politicians, including BNP Vice-Chair Selima Rahman, who was detained after addressing a press conference announcing a new set of demonstrations. Khandaker Mahbub Hossain, a senior adviser to the BNP president, was also held shortly after giving a speech denouncing the election. They were later shown arrested for involvement in a grenade attack on the office of the police commissioner... [and]... On January 30, 2014, Touhidul Islam Touhid, a detained local BNP leader in Noakhali district, was killed in what the police claimed was a gunfight during a nighttime operation to recover weapons from his home. [36] The Appellant does not have such a profile. Even if he was a member, there is no evidence that the ruling Awami League is persecuting all cadres of the opposition, and if so, it would be well documented. It should be noted that Bangladesh has a rather large number of political parties, at least 11,20 and numerous political pressure groups, and the BNP alone is a coalition of about 20 parties.21 Omission [37] The Appellant had testified that he has had problems from the Awami League, only when confronted with evidence that he had tried unsuccessfully to obtain a visa to Canada. There is no reference to any problems in the BOC or other documents provided by him from the Awami League. It would be reasonable for the RPD to expect that the supporting documents, provided by the Appellant from the BNP, his father, and/or his father's lawyer, would mention the problems he alleges to have suffered in 2009. None of these documents mentions anything about his problems in 2009. The Appellant argues in his Memorandum that, while the Member did inquire as to why she felt the information was not clear in the BOC narrative, there was no inquiry by the panel to Mr. XXXX as to why she felt this information was insufficiently detailed in the documentary evidence. I cannot find that the RPD erred in this finding. The Appellant seems to forget that the burden is on the Appellant to make a claim and provide evidence in support of the claim and not vice versa. [38] In the Appellant's testimony on the issue of his alleged activities for the BNP prior to him joining the party, the Appellant provided conflicting answers that have been analysed cogently in the RPD's reasons, and thus I do not see to repeat that. Other issues [39] Counsel seems to put the burden on the RPD to make a case for the Appellant by his statements. It is trite law that the burden is on the Appellant to make a case for refugee protection in Canada. [40] The Appellant argues in his Memorandum that, "The claimant's credibility should not be impugned because of vagueness or inconsistencies in their testimony on peripheral or minor details, or due to confusion". In this case, most of the problems go to the heart of the claim. I agree that some of the observations by the RPD may be considered peripheral, but that is not fatal to the RPD's overall determination. [41] The documentary evidence22 shows that police kill with impunity: The World Development Indicators between 1992 and 2011 ranked Bangladesh as 11th in the Impunity Index Rating with regard to unsolved murders of journalists. 75% of journalists who have been killed so far in Bangladesh were targeted for reporting corruption, political scandals, and violations of human rights. [42] In such an environment, a claim from Bangladesh on real or perceived political opinion cannot be swept away by a casual examination or relying on minor issues. It is not the case here. I have considered the evidence in totality and note that so did the RPD. I have recognized and respected the RPD's credibility findings as per Huruglica above. [43] The RAD and the RPD reviewed all documents submitted by the Appellant. The RPD cited the prevalence of false documents. The documentary evidence23 confirms that: ...an official at the High Commission of Canada to Bangladesh stated that "There is a significant prevalence of fraudulent documents [in Bangladesh] including passports, birth certificates, bank statements, taxation documents, business documents, school documents, marriage certificates. If we ask for it, it can be produced." The Canadian Official added that "[t]here is no difficulty at all for anyone to obtain these documents. Quality varies with prices paid." [44] In my opinion, the RPD did not dismiss documents provided in evidence on the bases that it is easy to get false documents. It is the absence of critical corroborative evidence that is the issue here, particularly because the Appellant provided a large number of non-essential documents and did not provide a reasonable explanation for the absence of critical documents that by testimony exist. [45] The RPD's decision has to be read in totality rather than one paragraph at a time in isolation, as counsel seems to have done here. In the RPD's reasons, one cannot look at each point in isolation but must consider the reasons in totality. In Imaniraguha,24 the Honourable Justice Simon Noël stated the following: And as my colleague Justice de Montigny observed in Jarada v Canada (Minister of Citizenship and Immigration), 2005 CF 409 (CanLII), 2005 CF 409 at para 22, [2005] FCJ No 506, given that the RPD credibility finding with respect to the Applicant relied on a number of elements and implausibilities, 'the reasons of an administrative tribunal must be taken as a whole in determining whether its decision was reasonable, and analysis does not involve determining whether each point in its reasoning meets the reasonableness test [...].' [46] It is the primary responsibility of the RPD to find whether it believes the person before it, or not, and provide clear and cogent reasons for its determination. In this case, I find that the RPD has done so. The RPD considered the totality of the evidence before it, as it states in its reasons, and is presumed to have done so even if it does not state so. [47] Based on the evidence before me and the foregoing reasons, I find that the RPD's findings are supportable, and I arrive at the same determination. I have recognised and respected the RPD's credibility findings where it enjoyed a particular advantage and have reviewed all of the evidence myself. [48] Based on the foregoing, I find that the Appellant is neither a Convention refugee nor a person in need of protection. DISPOSITION [49] Pursuant to Section 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [50] This appeal is therefore dismissed. (signed) "Atam Uppal" Atam Uppal September 16, 2015 Date 1 Exhibit RPD-1, RPD's Record, pp. 220- 221. 2 Huruglica, Bujar v. MCI. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 3 Exhibit P-2, Appellant's Record, p. 54. 4 Refugee Appeal Division Rules, 3(3)(g). 5 Exhibit RPD-1, RPD's Record, p. 4. 6 Exhibit P-2, Appellant's Record, p. 21. 7 Exhibit RPD-1, RPD's Record, National Documentation Package (NDP) for Bangladesh (September 30, 2014), item 4.5, Membership documents issued by the Bangladesh Nationalist Party (BNP) to its members. 8 Exhibit P-2, Appellant's Record, pp. 28-29. 9 Exhibit P-2, Appellant's Record, p. 21. 10 Exhibit P-2, Appellant's Record, p. 42. 11 Amarapala, Priyanga Udayantha v. M.C.I. (F.C., no. IMM-5034-03), Kelen, January 7, 2004, 2004 FC 12. 12 Ding, Lijie v. M.C.I. (F.C., no. IMM-3708-13), Mactavish, August 22, 2014, 2014 FC 820. 13 Exhibit RPD-1, RPD's Record, p. 251. 14 Niyonkuru, Joseph v. M.C.I. (F.C., no. IMM-4230-04), De Montigny, February 4, 2005, 2005 FC 174. 15 Exhibit RPD-1, RPD's Record, p. 226. 16 Exhibit RPD-1, RPD's Record, RPD's Reasons and Decision, p. 11. 17 Exhibit P-2, Appellant's Record, pp. 39- 40. 18 Exhibit RPD-1, RPD's Record, NDP for Bangladesh (September 30, 2014), item 1.3, Bangladesh, The World Factbook. 19 Exhibit RPD-1, RPD's Record, NDP for Bangladesh (September 30, 2014), item 4.4, Democracy in the Crossfire. Opposition Violence and Government Abuses in the 2014 Pre-and Post-Election in Bangladesh. 20 Exhibit RPD-1, RPD's Record, NDP for Bangladesh (September 30, 2014), item 1.3, Bangladesh, The World Factbook. 21 Exhibit RPD-1, RPD's Record, NDP for Bangladesh (September 30, 2014), item 4.5, Membership documents issued by the Bangladesh Nationalist Party (BNP) to its members. 22 Exhibit RPD-1, RPD's Record, NDP for Bangladesh (September 30, 2014), item 2.3, Bangladesh, Country of Origin Information (COI) Report, para. 16.12 23 Exhibit RPD-1, RPD's Record, NDP for Bangladesh (September 30, 2014), item 2.3, Bangladesh, COI Report, para. 32.01. 24 Imaniraguha, Robert v. M.C.I. (F.C., no. IMM-4416-13), Noël, April 10, 2014, 2014 FC 349. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-04065