TB5-04189

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 : TB5-04189 TB5-06136 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXXXXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 27, 2015 Date de la décision Panel Milton Israel Tribunal Counsel for the person(s) who is(are)the subject of the appeal Mordechai Wasserman Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX citizens of Bangladesh, appeal a decision of the Refugee Protection Division (RPD) denying their claims for refugee protection. The principal Appellant has submitted new evidence in support of her claim. She has not requested an oral hearing. The Appellants request that the Refugee Appeal Division (RAD) set aside the determination of the RPD and remit the matter to the RPD for reconsideration by a differently-constituted panel. [2] The RAD notes that the initial appeal in this case did not include the minor Appellant. The RAD accepted the application of the Appellant's counsel that the minor Appellant's name was inadvertently left out of the original appeal and the RAD agreed that the two appeals should be joined. Determination [3] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act, the RAD confirms the determination of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. Background [4] The Appellants are Hindus from Bangladesh. They fear mistreatment in Bangladesh, due their membership in a religious minority, by members of the Jamatul Mujahedeen of Bangladesh (JMB), who had threatened to kill the principal Appellant's (Appellant's) children if they did not pay a large sum to the organization. [5] In XXXX 2014, the Appellant and her two sons visited relatives in XXXX. A few days later men who said they were members of the JMB attacked the home, beat the Appellant and her relatives and attempted to kidnap her younger Canadian-born son. They demanded 20 lakhs to save the lives of the boys. They took what they could find in the home and her relative offered to transfer her land to them if the 20 lakhs were not paid. [6] The Appellant did not go to the police because they are corrupt and there is no protection for members of the Hindu minority. In addition, the attackers threatened her if she went to the police. [7] The Appellants did not return home and went to XXXX and stayed with family members until arrangements could be made to leave Bangladesh a few months later. In an addition to the Appellant's Basis of Claim Form (BOC) narrative she indicated that on XXXX XXXX, 2014, a letter was dropped at the office where she worked for her husband's company. It repeated the threat to her children if the 20 lakhs were not paid. The Appellant believes the letter was sent by the members of JMB who had attacked her. This time she informed the police and she sent a staff member to do this. He filed a "general diary" the next day and a sub-inspector visited her office the next day. [8] The Appellant indicated she was not able to submit this information in her original BOC as she was traumatized, recalled the earlier attack and forgot to include this information. [9] The Appellants left Bangladesh on December 4, 2014, and came to Canada. The Issues [10] The panel indicated the determinative issues in this case are credibility and internal flight alternative (IFA). [11] The principal Appellant (Appellant) submits the issues in this case are the panel's failure to properly weight evidence of her trauma in regard to her omission of important evidence; the panel's error in law in stating that all members of a group must be subject to persecution for there to be a well-founded fear of persecution; documentary evidence concerning the Appellants' well-founded fear of persecution throughout Bangladesh because they are Hindus; new evidence that persecutors continue to seek the Appellants. The Role of the RAD [12] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [13] The RAD now has the benefit of Federal Court jurisprudence which speaks to the appellate tribunal's role in relation to that of the RPD. [14] In this regard, the Court in Huruglica considered the appropriate relationship between the RAD and the RPD.1 In Huruglica, the Court determined that the RAD is to conduct a "hybrid appeal." It is to review all aspects of the RPD's decision and come to an independent assessment of the Appellant's refugee claim, deferring to the RPD only where the lower tribunal enjoys a particular advantage in reaching a conclusion. Where the RAD's assessment departs from that of the RPD, the RAD must substitute its own determination. [15] The Court determined that, in conducting its assessment, the RAD 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. The RAD is, however, not restricted, as an appellate court is, to intervening on the facts only where there is "palpable and overriding error." [16] The RAD will review all of the evidence in the RPD record and come to its own independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Credibility Reports to police [17] The panel noted the Appellant testified she contacted a lawyer after the attack by the JMB while she was staying at her sister's home in XXXX. The Appellant further testified the lawyer said he would let her know but there was no further contact with the lawyer. The panel noted however that the lawyer stated in a letter that a junior lawyer was sent to investigate and share the results with the police, and that they tried to lodge a complaint and that an attempt was made to bring this matter before the courts.2 [18] The Appellant explained that she had heard about the follow-up information from the lawyer's secretary when she was already in Canada. The panel rejected this response as it does not explain why she said there was no further contact with the lawyer when clearly there was. [19] The panel noted the Appellant failed to provide details of the lawyer's efforts to seek protection for the Appellants in either her original BOC or the additional narrative. The panel further noted the letter from the lawyer is dated XXXX XXXX, 2015, and the Appellant amended her BOC on February 25, 2015. The panel noted as well the Appellant did not provide copies of documents the lawyer had filed with the Court. The Appellant explained she did not know there were any such documents. The panel rejected this explanation as the lawyer indicates in his letter that a complaint had been lodged and an attempt was made to bring the matter to Court. The panel drew a negative inference from the Appellant's lack of effort to obtain any documentation from the lawyer. [20] The panel noted as well that when the Appellant was asked about efforts to seek state protection, she did not mention any of the lawyer's efforts but instead said the police do not provide protection and they went to seek protection after the letter arrived at her workplace. [21] The panel noted that the Appellant had stated that a worker in the company took the letter to the police to make a complaint. The panel further noted that the Appellant was aware of efforts made by others seeking protection on their behalf and it was reasonable to expect the efforts of the lawyer to do the same should have been included in the initial narrative or the amended narrative or at the very least the Appellant should have referred to them in the hearing. The panel found the evidence with respect to bringing this matter to the attention of authorities not to be reliable. Letter at work and report to the police [22] The panel noted that there was no mention of this letter in the Appellant's original BOC and no mention that an employee was assigned to bring the matter to the attention of the police. The panel further noted the Appellant explained she was traumatized when she came to Canada and she recalled the letter when she met an Immigration Officer and informed her lawyer resulting in the addition to her narrative. The panel rejected this explanation. [23] The panel noted the Appellant, her two children and her husband arrived in Canada on December 4, 2014 and the BOC was completed two weeks later. The panel further noted the Appellant had competent counsel to help her complete her BOC. The panel noted as well that BOC instructions indicate efforts to seek protection should be mentioned. The panel found it reasonable to expect the Appellant would have recalled at that point that an employee had been asked to file a report and an entry was made in the police general diary. The panel noted the letter caused such concern that the Appellant went against the JMB threats that she not contact the police. [24] The panel noted as well that the Appellant did not inform authorities that she believed the two incidents were connected as the letter to the police3 does not connect the two. The panel also noted the complaint to the police says they are not lodging any persecution, but just for the general diary. The panel indicated this made no sense as the Appellant connected the two incidents. The panel further noted the Appellant did not provide a copy of the general diary of the police and that the Appellant had such evidence but chose not to provide it at the hearing. The panel drew a negative inference in this regard and found the evidence with respect to receiving a letter at work and the report to the police is not reliable. The panel found the documentary evidence regarding the alleged police report to be untrustworthy because it did not include any mention of the earlier incident, the current engagement of a lawyer, and the lack of evidence from the police diary. Persecution feared [25] The Appellant testified they faced forms of mistreatment because they were Hindus and they would be randomly insulted and told by extremists to remove items identified with their faith and threatened their hands would be cut off. The panel noted in the hearing that none of this was mentioned in their narratives. The Appellant explained that these things happened frequently and she focused on the extortion and kidnapping threat. [26] The panel acknowledged persistent low level mistreatment might not be mentioned but found it reasonable to expect that a threat to cut off their hands would have been included in the narrative. The panel noted the Appellant testified that mistreatment related to being Hindu was not the reason they fled Bangladesh. In addition, the Appellant agreed that while there is a religious aspect to the mistreatment, even with respect to the home invasion they experienced, it is mostly related to political unrest. The lack of further contact by the extremists and Internal Flight Alternative (IFA) [27] The panel noted that although some of the Appellant's evidence was found not to be reliable, her evidence with respect to the home invasion was consistent and reliable. The panel found the Appellants were victims of random crime that may have a degree of religious or political motivation, but not targeting the Appellants as they were simply in the wrong place at the wrong time. The panel noted that the Appellant indicated she gave the extremists all of her personal information but there were no further incidents afterwards. [28] The panel found the Appellants did not face discrimination amounting to persecution on the basis of their religion. The panel further found the mistreatment suffered and feared amounts to discrimination and harassment, but not even cumulatively, to persecution. [29] The panel noted the Appellants were victims of a crime in a city 300-400 kilometres from their home in XXXX. The panel further noted that since the XXXX 2014 incident the Appellant has spoken to her sister and there have been no problems related to the Appellant's allegations. The panel further noted the minor Appellant speaks regularly to his father and his father has not reported any difficulties related to the allegations in this claim. The panel found it reasonable to believe he would have informed the Appellants if there had been any such trouble. [30] The panel found that the lack of further contact by the extremists indicates they are unable or not motivated to seek out and harm the Appellants. The panel further found the Appellants could relocate inside XXXX and they are not likely to face more than a mere possibility of persecution there. The panel noted that XXXX was suggested as a potential IFA. [31] The panel cited Federal Court case law concerning the availability of an IFA in Bangladesh.4 In this regard the panel noted the two prong test that it must be satisfied that on a balance of probabilities there is no serious possibility of the Appellants being persecuted in the suggested IFA and that the conditions in the suggested IFA are not unreasonable in the circumstances. [32] The Appellant stated they could not relocate to XXXX because the JMB has people everywhere. The panel found however there was no persuasive evidence that the JMB has people everywhere or has the ability to locate people wherever they might be in Bangladesh. The panel noted again the Appellants were allowed to leave XXXX and return to XXXX without further incident. The panel further noted again the Appellant indicated she provided the perpetrators of the attack with her contact details and it would have been easy to track her down if they had an interest in doing so. The panel found that if the Appellants moved to the suggested IFA it was unlikely the men from the JMB would be able to find them, if they became interested in doing so. [33] The Appellant also testified she could not reside in the IFA because she had nowhere to live there although she provided no specific reasons why except that she thought the JMB would kill her wherever she lived in Bangladesh. The panel noted the Appellant is well educated and experienced in administration and marketing and found there was no persuasive evidence that the Appellants could not live in XXXX or another location in XXXX. Admissibility of Evidence Submitted on Appeal [34] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his/her claim or that was not reasonably available, or that he/she could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [35] The Appellant submitted a letter from her sister with whom she stayed in XXXX before leaving Bangladesh, dated XXXX XXXX, 2015.5 The letter indicates that on XXXX XXXX, 2015, she received several threatening phone calls asking about the Appellant's whereabouts. The letter further indicates that after receiving the calls she changed her house and moved to another house in XXXX at the end of XXXX 2015. [36] The RAD notes that the alleged calls were received on XXXX XXXX, 2015, a month before the panel's decision. The RAD further notes that the Appellant testified she was in contact with her sister after coming to Canada and that there had been no problems related to the her allegations. The RAD notes as well that while the alleged phone calls were received on XXXX XXXX, 2015, the sister's letter in this regard is dated XXXX XXXX, 2015. [37] The RAD finds that it strains credulity that information regarding the alleged XXXX 2015 calls would not have been given to the Appellant in the exchanges with her sister to which the Appellant testified, soon after the alleged calls were received, and a month before the panel made its decision, rather than two months later. The RAD finds the letter lacks credibility and therefore has no probative value.6 The RAD further finds the letter is not admissible as new evidence. The Appellant's arguments and the RAD's review and assessment of the evidence [38] The Appellant argues the panel did not give proper weight to evidence of trauma in rejecting her explanation that she was traumatized and depressed and this was why she did not mention an important part of her story in the original BOC. The Appellant noted she submitted a prescription written in Bangladesh that she had a XXXX XXXX XXXX. As well she met with a psychologist for an assessment and she was diagnosed as suffering from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. The Appellant further noted the panel did not mention either of these documents. The Appellant submits the panel's credibility decision is fatally flawed by the failure to consider the medical and psychological assessments. [39] The RAD has reviewed and assessed all of the evidence concerning the Appellant's psychological health and its impact on the Appellant's participation in the hearing and the preparation of evidence for the hearing. The RAD notes that the Appellant indicated in the hearing and in her BOC addition that she was traumatized and this was the reason she had forgotten to mention the letter sent to her office and her subsequent decision to bring the matter to the attention of the police. [40] The RAD further notes that while the panel did not specifically mention the psychological report, it is clear the panel was aware of this evidence and took it into consideration in making its findings. The RAD notes it is trite law that the panel need not refer to every piece of evidence before it. [41] The RAD notes as well that both the panel and the Appellant noted the significance of the evidence omitted by the Appellant in her original BOC. The RAD further notes in this regard that the omitted evidence is relevant to the central issue in the claim, and therefore important and material. [42] In regard to the psychological assessment, the RAD notes that while there was some testing, most of the psychologist's findings are dependent on information provided by the Appellant. The RAD notes the assessment indicates that the Appellant is suffering from XXXX and depression as a result of her persecution in Bangladesh. [43] The RAD cites the Federal Court's decision in Molefe7 in which the Court stated that "Expert opinion reports should not be given exalted status in administrative proceedings simply because they are prepared by a licensed professional." [44] The Court cited in this regard the Federal Court's decision in Czesak8 in which the Court stated that "decision-makers should be wary of reliance upon forensic expert evidence obtained for the purpose of litigation, unless it is subject to some form of validation." The Court further stated that this remark would apply to the medical report "which went as far as to advocate on the applicant's behalf in the guise of an opinion on the very issue before the panel." The RAD notes that the psychological report concerning the Appellant in the case at bar indicated as noted above that the Appellant's XXXX and depression were caused by her persecution in Bangladesh. The Court stated as well that caution should be exercised in accepting such reports at "face value," particularly when they propose to settle important issues to be decided by the panel, such as whether the Appellant suffered persecution in Bangladesh. [45] The RAD finds it was open to the panel to find that the Appellant's explanation of trauma and stress is insufficient concerning her failure to mention a significant incident, including a police report in her original BOC. The RAD accords little weight to the psychological report in this regard. [46] The Appellant submits the panel made an error in law in indicating all Hindus had to face a serious possibility of persecution in order to find the Appellant had a well-founded fear of persecution because of her religion. The RAD has reviewed the panel's findings and analysis in this regard and finds that it did not say this. Rather the RAD noted the Appellant testified they had faced various forms of mistreatment because she was a Hindu including the threat that their hands would be cut off. [47] The panel noted that the Appellant had failed to mention in her narratives these various forms of mistreatment to which she testified including verbal threats that their hand would be cut off. The Appellant explained that these things happened frequently and she focused on the extortion and kidnapping threat. The panel acknowledged that "low level mistreatment" because they were Hindus might be common and considered unnecessary to mention. It found however that the threat to cut of hands was serious enough to reasonably expect mention in her narrative. [48] The RAD notes in this regard, as did the panel that the Appellant indicated that their mistreatment related to being Hindu was not the reason they fled Bangladesh and while they felt insecure at their temple, they never experienced such problems themselves. [49] The RAD finds the panel made no error in law as submitted by the Appellant concerning whether the Appellants had a well-founded fear of persecution in Bangladesh because they were Hindus. [50] The Appellant submits that documentary evidence shows that they face a well-founded possibility of persecution throughout Bangladesh because of their Hindu religion. The Appellant cites evidence in this regard from various documentary sources. The Appellant further submits that contrary to the panel's finding, this is not "persistent low level mistreatment" but clear evidence of persecution against Hindus in Bangladesh. In that context the Appellant submits there is no IFA for Hindus in Chittagong or anywhere else in the country. [51] The RAD notes as indicated above that the Appellant testified that she and her children did not leave Bangladesh because of their mistreatment as Hindus. Rather they left because of the incident of extortion and the kidnapping threat. The RAD further notes the Appellant testified they had never experienced persecution as a result of their being Hindus. The RAD notes as well that the Appellant makes no specific submissions regarding the availability of an IFA in XXXX or XXXX. The Appellant merely relies on documentation concerning the threats of violence faced by Hindus in Bangladesh, which the Appellant testified they had never experienced. [52] The RAD finds on the basis of its review and assessment concerning the availability of an IFA in XXXX or XXXX that the panel used the correct test and that no evidence was disclosed by the Appellant to support a conclusion that she is unable to take advantage of an IFA in Bangladesh and therefore the Appellants are not in need of protection in Canada. [53] The RAD further finds that in as much the minor Appellant's appeal is totally dependent on that of the Appellant, the findings above apply to him as well. Disposition [54] Pursuant to section 111(1)(a) of the IRPA, the RAD confirms the determination of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. The appeals are dismissed. (signed) "Milton Israel" Milton Israel July 27, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C. no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Exhibit RPD-1, RPD's Record, Letter from XXXX XXXX XXXX XXXX XXXX 2015, at p. 209. 3 Exhibit RPD-1, RPD's Record, Letter to police XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 2015. 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).; 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.). 5 Exhibit P-2, Appellant's Record, at p. 13. 6 Refugee Appeal Division Rules (SOR/2012-257), Rule 29. 7 Molefe, Nana Joy v. M.C.I. (F.C., no. IMM-8071-13), Mosley, March 12, 2015, 2015 FC 317, at para 31. 8 Czesak, Maria v. M.C.I. (F.C., no. IMM-09539-12), Annis, November 4, 2013, 2013 FC 1149, at paras 37-40. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-04189 TB5-06136