TC1-01721

RAD File / Dossier de la SAR : TC1-01721 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision September 15, 2021 Date de la décision Panel John Helis Tribunal Counsel for the person who is the subject of the appeal Douglas Lehrer 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] The Appellant, XXXX XXXX XXXX XXXX, is a citizen of Bangladesh who allegedly fears an Islamist political party called the Jamaat-e-Islami (JeI). The Refugee Protection Division (RPD) denied his claim in a decision dated March 2, 2021, after finding that he has an internal flight alternative (IFA) in Chittagong. He appeals the RPD's decision to the Refugee Appeal Division (RAD).1 His claim also included an alleged fear of an individual named XXXX XXXX in addition to the JeI, although he is not pursuing this on appeal and expressly states that "[f]or the purposes of this appeal, the Appellant is only taking issue with the RPD's findings that pertain to the risk he faces from JEI." DECISION [2] The appeal is dismissed. I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.2 SUMMARY OF THE FACTS [3] The Appellant is a XXXX XXXXyear-old man from Bangladesh who worked as an XXXX XXXX XXXX XXXX XXXX XXXX at a hospital in Dhaka, and also jointly owned a XXXX XXXX XXXX with two partners. [4] The Appellant's alleged problems began in XXXXor XXXX of 2014, when two men stopped him on the street, displayed a pistol, and demanded a monthly donation for the JeI. He began paying JeI between XXXXandXXXX XXXX XXXX XXXX Bangladeshi taka every two to three months until 2018. In XXXX 2018, he was approached by two members of the JeI in a marketplace who threatened to kidnap his son if he did not pay them XXXX XXXX XXXX taka. [5] Following this incident, the Appellant relocated to his home village of XXXX with his wife and children in XXXX 2018. They moved back to Dhaka in XXXX 2018, so his wife could give birth to their third child at the hospital where he worked. Several days later, he received a telephone call from a man who demanded XXXX XXXX XXXX XXXX XXXX taka on behalf of XXXX XXXX, who he believes is a terrorist. Several days later, three men on a motorcycle intercepted the Appellant's rickshaw, slapped and punched him, and warned that they would kill him if he did not pay XXXX XXXX. On XXXX XXXX XXXX 2018, he received a telephone call from a member of the JeI who demanded money from properties he recently sold. [6] The Appellant left Bangladesh for China on XXXX XXXX XXXX 2018, and made a claim for refugee protection during a layover in Canada on XXXX XXXX XXXX 2018, while en route to the Bahamas. NEW EVIDENCE [7] The Appellant submits proposed new evidence in the appeal which includes Bangaldesh travel information from the Government of the United Kingdom, and eight news articles on the measures and lockdowns imposed in Bangladesh in XXXXand XXXX 2021 as a result of the COVID-19 pandemic. [8] New evidence is only admissible before the RAD if it arose after the rejection of the claim, if it was not reasonably available, or if the Appellant could not have reasonably been expected in the circumstances to have presented the evidence at the time of the rejection of the claim.3 In addition to these legislative requirements, under the Federal Court of Appeal decisions in Singh and Raza, admissibility is limited to evidence that is relevant, new, and credible.4 [9] These documents are admitted because they meet both the requirements of the legislation and the factors set out in Singh and Raza. These documents arose after the rejection of the Appellant's claim and concern the situation in Bangladesh in XXXXand XXXX 2021. The documents are relevant to the viability of an IFA in Bangladesh, and constitute new evidence from the Government of the UK and credible media sources. The documents will be therefore be considered below. [10] The Appellant does not request an oral hearing before the RAD and one is not merited since the new evidence does not raise issues with his credibility. Oral hearings before the RAD are limited to circumstances when new evidence which is admissible in the appeal raises a serious issue with respect to the Appellant's credibility, that is central to the decision, and if accepted, would justify allowing or rejecting the refugee protection claim.5 ROLE OF THE RAD [11] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.6 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations.7 While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ANALYSIS [12] After considering the Appellant's arguments and conducting an independent assessment of the entire record, which includes the transcript of the proceeding before the RPD, I agree with the RPD that the Appellant has a viable IFA in Chittagong. [13] Refugee claimants are expected to seek protection in another part of their own country, if it is available, before they seek refuge in Canada.8 The notion of an IFA is inherent in the definition of a Convention refugee because refugee protection is a form of surrogate protection.9 Accordingly, the Appellant bears the onus of demonstrating that there is a serious possibility of persecution throughout the country, including the area identified as an IFA.10 [14] The analysis for assessing an IFA has two parts according to the Federal Court in Rasaratnam.11 I must first determine whether there is a serious possibility that the Appellant will be persecuted, or whether he will face, on a balance of probabilities, a danger of torture, a risk to his life, or cruel and unusual treatment or punishment in Chittagong. Secondly, I must also be satisfied, after considering the Appellant's individual circumstances and the conditions in the proposed IFA, that it would not be unreasonable to seek refuge in Chittagong. An IFA will only be viable if both criteria are met.12 There is no serious possibility of persecution or risk of harm in Chittagong [15] The Appellant has a viable IFA in Chittagong where he does not face a serious possibility of persecution or a risk of harm. An IFA analysis requires a contextual approach, looking at the profile of the agents of harm, their motivation to search for the Appellant, and their ability to locate him. There can only be a serious possibility of persecution if the agents of harm have both the "means and the motivation" to search for and locate the Appellant.13 [16] The evidence does not establish, on a balance of probabilities, that the agents of harm have the motivation to search for the Appellant outside of Dhaka where his alleged problems occurred, and pursue him throughout Bangladesh and in Chittagong in particular. [17] The evidence does not demonstrate that members of the JeI searched for the Appellant after he left Dhaka and relocated to his hometown of XXXX from XXXXto XXXX 2018, or after he left for Canada on XXXX XXXX XXXX 2018. When asked by the RPD whether he took "any steps to protect" himself during his time in XXXX XXXX the Appellant testified that "[n]o, I did not." The Appellant points out that he did not remain exclusively in XXXX during this five-month period and that he travelled briefly outside of the country, although this does not demonstrate that the agents of harm have the motivation to search for him and pursue him in Chittagong. Indeed, the Appellant's problems with the JeI only resumed upon his return to Dhaka in XXXX 2018, when he allegedly received a threatening telephone call on XXXX XXXX XXXX 2018. When specifically asked by the RPD whether members of the JeI have continued to search for him since he left Bangladesh, the Appellant testified that "I am not sure whether they are still looking for me or not." [18] While the Appellant points to the various steps taken by the JeI, all of this pertains to his alleged problems in Dhaka and does not demonstrate that they have the motivation to search for him and pursue him in Chittagong. This includes obtaining his telephone number from his workplace when they fist sought to extort him in XXXX 2014, obtaining his second telephone number upon his return to Dhaka when they called him on XXXX XXXX XXXX 2018, about the sale of his property, and their knowledge of his son's school in Dhaka. None of this displays a motivation to search for him outside of Dhaka. [19] The Appellant's wife and children remain in Bangladesh and the evidence does not demonstrate that members of the JeI have searched for him through his family members. The Appellant claims that his wife "is facing the same problems because I am far away," although the evidence is limited to his testimony that "[s]he is receiving numerous phone calls from unknown numbers trying to trap her. I told my wife to block those numbers and to keep her faith [...]." This does not establish that the telephone calls which his wife was receiving were from the JeI or that this group has the motivation to search for him outside of Dhaka. [20] There is no merit to the arguments that "four or five months in a location is insufficient time to conclude that there is not a reasonable chance or serious possibility of being located," or that "[t]he RPD did not point to any other explanation" for the calls received by the Appellant's wife. It is trite law that "[t]he burden is on the refugee claimant to establish, on a balance of probabilities, that they seriously risk persecution in the IFA or that the conditions are such that it would be objectively unreasonable in the circumstances that they seek refuge there."14 Ultimately, the Appellant's evidence is insufficient to establish that the JeI have the motivation to search for him and pursue him in the proposed IFA, and therefore does not support a finding that he faces a serious possibility of persecution in Chittagong.15 [21] The Appellant cites evidence from the National Documentation Package (NDP) for Bangladesh which indicates that JeI is a national political party with a "large-scale network," penetrating "all spheres of social, economic and political life in Bangladesh." This evidence, however, pertains to the means available to the agents of harm and does not establish, on a balance of probabilities, that they have the motivation to search for him throughout Bangladesh and pursue him in Chittagong.16 [22] I acknowledge that the Appellant challenges the RPD's finding that he did not establish a nexus to one of the grounds of persecution in the Convention Relating to the Status of Refugees ("Refugee Convention").17 However, I do not need to address nexus because the question of IFA is integral to both the definition of a Convention refugee and that of a person in need of protection.18 [23] Relatedly, I do not accept the submission that the RPD erred by finding that the JeI's sole purpose was to extort him. The Appellant argues that he "did not allege that this was JEI's sole purpose," and that he may have been targeted "due to his refusal to donate to their extremist causes." In support of this argument he points to evidence in the NDP which indicates that "JeI founder Maududi explicitly permits and encourages the use of 'extreme violence' to stigmatise (and subsequently eliminate) people, states, and religious-cultural elements which are blacklisted as un-Islamic."19 Regardless of whether the Appellant was targeted by the JeI solely for financial gain or for ideological reasons following his refusal to contribute to their extremist cause, this does demonstrate a motivation by the agents of harm to search for him and pursue him in Chittagong. [24] For the reasons outlined above, I agree with the RPD that the first part of the tests from Rasaratnam has been met, and that the Appellant faces neither a serious possibility of persecution, nor, on a balance of probabilities, a danger of torture, a risk to his life, cruel and unusual treatment or punishment in Chittagong. It is reasonable for the Appellant to relocate to Chittagong [25] I am satisfied that it is reasonable for the Appellant to relocate to Chittagong based on his specific circumstances. The Federal Court of Appeal has established, "a very high threshold for the unreasonableness test. It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area."20 [26] The RPD considered relevant factors which inform the analysis of whether Chittagong is a reasonable IFA in the Appellant's specific circumstances, including his level of education, work experience, language skills, religion, and ability to secure employment. The Appellant has not challenged any of these specific findings. I have not identified any errors in the RPD's analysis in my independent assessment, and find that its determination is correct. [27] I do not accept the argument that the new evidence submitted on appeal "indicates that it would currently be unreasonable to expect the Appellant to relocate to Chittagong." As the Appellant summarizes in his submission, this evidence outlines lockdown measures during the period of April 14 to May 5, 2021, due to the COVID-19 pandemic which required "people to stay at home, only allowing them to leave their homes if there is an urgent need." This included the suspension of all international passenger flights to and from Bangladesh, the requirement of a COVID-19 test for entry into the country, restrictions on internal movements, and the closure of nonessential shops and services. With respect to accommodation, the evidence indicates that "[s]ome hotels and guesthouses are open, but services and guest capacity are limited." While the measures imposed by the government of Bangladesh from April 14 to May 5, 2021, limited internal travel and the ability to secure accommodation, I do not accept the argument that the circumstances during that three-week period continue to be "barriers that are not reasonably surmountable" which make it "unreasonable for the Appellant to relocate to Chittagong." [28] For all of the reasons outlined above, after considering the Appellant's personal circumstances and the objective evidence in the NDP, I am satisfied that the second part of the Rasaratnam test has been met and that it would not be objectively unreasonable in the circumstances for him to relocate to Chittagong. CONCLUSION [29] The RPD was correct in its determination that the Appellant has a viable IFA in Chittagong. I therefore dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.21 (signed) "John Helis" John Helis September 15, 2021 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 111(1)(b) & 111(1)(c) [IRPA]. 2 IRPA s. 111(1)(a). 3 IRPA s. 110(4). 4 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 at para. 13; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 IRPA s. 110(6); Zhou v. Canada (Citizenship and Immigration), 2015 FCA 911. 6 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 7 Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 8 Canada (Attorney General) v. Ward, [1993] 2 SCR 689 at 752. 9 Thirunavukkarasu v. Canada ( Minister of Employment and Immigration ), [1994] 1 FC 589. 10 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 at 710. 11 Ibid. 12 Ibid. at 711; Calderon v. Canada (Citizenship and Immigration), 2010 FC 263 at para. 10. 13 Nimako v. Canada (Citizenship and Immigration), 2013 FC 540 at para. 7; Mayorga Gonzalez v. Canada (Citizenship and Immigration), 2012 FC 987 at para. 35. 14 Ogunkunle v. Canada (Citizenship and Immigration), 2021 FC 111 at para. 4, citing Thirunavukkarasu, supra note 9 at pp. 593 & 597. 15 Gayrat v. Canada (Citizenship and Immigration), 2021 FC 666 at para. 17. 16 RAD-1, National Documentation Package (NDP), Bangladesh, 16 April 2021, tab 4.9: Facing Jamaat-e-Islami in Bangladesh: A global threat in need of a global response. South Asia Democratic Forum. 2 March 2017 at p. 15. 17 United Nations Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 150 [Refugee Convention]. Incorporated into IRPA, s. 96. 18 Siliya v. Canada (Citizenship and Immigration), 2015 FC 120 at para. 25. 19 RAD-1, National Documentation Package (NDP), Bangladesh, 16 April 2021, tab 4.9, supra note 16 p. 21. 20 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA) at para. 15. 21 IRPA s. 111(1)(a). --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-01721 RAD.25.02 (August 20, 2021) Disponible en français 2 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 (August 20, 2021) Disponible en français