Judgments

[2001] 1 F.C. 483

IMM-5330-99

Ali Ahmed, Belara Ahmed and Ali Ahsan Raju (Applicants)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Ahmed v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Tremblay-Lamer J.—Montréal, August 16; Ottawa, August 31, 2000.

Citizenship and Immigration — Immigration practice — Not open to post-claim determination officer to make adverse findings of credibility with respect to refugee claimant seeking landing as member of post-determination refugee claimants in Canada class, where Refugee Division, after full oral hearing of claim, had found claimant credible.

The principal applicant, his wife and his son were citizens of Bangladesh. When he was an assistant public prosecutor in Dhaka, during the regime of the Bangladesh Nationalist Party (BNP), he had prosecuted many Awami League goons. When the BNP fell from power, he lost his position, a political appointment. The applicant alleged that he was then targeted by those he had prosecuted but the police declined to protect him and his family. They then left the country and sought Convention refugee status in Canada.

The Refugee Division of the Immigration and Refugee Board, finding that the incidents he complained of were a matter of revenge by the criminals he had prosecuted, ruled that Ahmed’s problems lacked a nexus with a Convention ground and denied his application for refugee status.

Based on several implausibilities and inconsistencies, as well as the existence of an internal flight alternative (IFA), the post-claim determination officer (PCDO) determined that the applicants would not face a risk to their lives upon their return to Bangladesh, and therefore did not qualify as members of the post-determination refugee claimants in Canada (PDRCC) class.

The issues were whether the officer exceeded her jurisdiction by making adverse findings of credibility where none had been made by the Refugee Board, and whether the officer’s decision was unreasonable.

This was a somewhat unique case in that the conduct of the PCDO is impugned for having conducted a new assessment of a claim. More commonly, applicants have challenged PCDO decisions for the fettering of discretion by relying on the reasons of the Refugee Division. Counsel, while conceding that the PCDO is not bound by the findings of the Refugee Division, argued that this ought not apply to an applicant’s detriment.

Held, the application should be allowed.

It is well established that this Court will only intervene in decisions rendered by the PCDO if the officer exercised his discretion pursuant to improper purposes, irrelevant considerations, with bad faith or in a patently unreasonable manner. Here, the PCDO committed reviewable error by exercising her discretion pursuant to improper purposes.

In the present case, it appeared that the PCDO had in fact substituted her opinion for that of the Refugee Division. The PCDO conducted a new refugee determination analysis rather than a risk analysis, re-evaluating the applicant’s credibility, and thus exceeding her jurisdiction. A proceeding before the PCDO is not an appeal de novo. The PDRCC process acts as a safety net: while the applicant’s fear may fall outside the scope of protection offered by the Convention, there may still be a risk to his life if sent back to Bangladesh. The PCDO process is administrative: the officer’s role is limited to a review of the evidence in the record, including any new documents and submissions presented by the applicants. It is not open to the officer to conduct a new assessment of an applicant’s credibility and to reverse the credibility findings of the Refugee Division.

The question as to whether a PCDO may find not to be credible a person seeking landing as a member of the PDRCC class who has been found credible by the Refugee Division was certified for consideration by the Federal Court of Appeal.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Immigration Act, R.S.C., 1985, c. I-2.

Immigration Regulations, 1978, SOR/78-172, s. 2(1) “member of the post-determination refugee claimants in Canada class” (as enacted by SOR/93-44, s. 1; 97-182, s. 1).

United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6.

CASES JUDICIALLY CONSIDERED

APPLIED:

Gharib v. Canada (Minister of Citizenship and Immigration) (1995), 99 F.T.R. 208; 30 Imm. L.R. (2d) 291 (F.C.T.D.); Garcia v. Canada (Minister of Citizenship and Immigration) (1996), 122 F.T.R. 37; 36 Imm. L.R. (2d) 114 (F.C.T.D.); Baranchook v. Canada (Minister of Citizenship and Immigration) (1995), 105 F.T.R. 46 (F.C.T.D.); Hussain v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 751 (T.D.) (QL).

NOT FOLLOWED:

Atapour et al. v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 129 (F.C.T.D.).

DISTINGUISHED:

Singh (Pakar) et al. v. Canada (Minister of Citizenship and Immigration) (1996), 113 F.T.R. 188 (F.C.T.D.); Lishchenko v. Canada (Minister of Citizenship and Immigration) (1996), 105 F.T.R. 264 (F.C.T.D.); Samoylenko v. Canada (Minister of Citizenship and Immigration) (1996), 116 F.T.R. 144 (F.C.T.D.); Kailay v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 701 (T.D.) (QL).

REFERRED TO:

Canada (Minister of Employment and Immigration) v. Mathiyabaranam (1997), 156 D.L.R. (4th) 301; 41 Imm. L.R. (2d) 197; 221 N.R. 351 (F.C.A.); Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.); Canada (Minister of Employment and Immigration) v. Brar (1993), 19 Imm. L.R. (2d) 291; 152 N.R. 157 (F.C.A.).

APPLICATION for judicial review of the decision of a PCDO determining that applicants did not qualify for membership in the PDRCC class based on adverse credibility findings following a new assessment of applicants’ claim. Application allowed.

APPEARANCES:

Pia Zambelli for applicant.

Michel C. Synnott for respondent.

SOLICITORS OF RECORD:

Pia Zambelli, Montréal, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

[1]        Tremblay-Lamer J.: This is an application for judicial review of a decision of a post-claim determination officer (PCDO) that had determined that the applicants did not qualify as members of the post- determination refugee claimants in Canada (PDRCC) class.

[2]        Ali Ahmed, the principal applicant, his wife Belara and minor son, Ali Ahsan Ahmed are citizens of Bangladesh.

[3]        The principal applicant was a former assistant public prosecutor working in Dhaka during the regime of the Bangladesh Nationalist Party (BNP). He is also a member of the BNP and an active member of the Lawyer’s Front of the Bangladesh Nationalist Party.

[4]        During the course of his duties as assistant public prosecutor between 1991 and 1996, the principal applicant prosecuted many “goons” of the Awami League (AL) for crimes such as illegal possession of arms, extortion of money, robberies and sexual assault.

[5]        When the BNP lost power in March 1996, the principal applicant lost his appointment as assistant public prosecutor given that it was essentially a political appointment.

[6]        Around this period, the principal applicant claimed that he was targeted by criminals he had successfully prosecuted in the past. In fact, he alleged that AL terrorists beat his son when they could not find him. In June 1996, he alleged that he was attacked by several terrorists with firearms. He escaped through the back door of his law office and subsequently went into hiding.

[7]        In August 1996, AL and Jatiya Party goons raided the applicants’ home, beating Ali Ahsan (the son of the principal applicant) and abusing Belara (wife of principal applicant). They contacted the police who refused to protect them. As a result, Ali Ahsan and Belara joined the principal applicant in hiding.

[8]        The applicants left Bangladesh on September 23, 1996 and claimed refugee status on September 26, 1996.

[9]        On May 20, 1999 the Refugee Division of the Immigration and Refugee Board rendered a negative decision on the basis that the applicants’ problems did not have a nexus with a Convention ground [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6]. The Board found that the principal applicant had become the object of revenge due to the criminals he had prosecuted.

[10]      Based on several implausibilities and inconsistencies noted by the PCDO in the evidence before her, as well as the existence of an internal flight alternative (IFA), the PCDO determined that the applicants would not face a risk to their lives upon their return to Bangladesh, and therefore did not qualify as members of the PDRCC class as defined in subsection 2(1) of the Immigration Regulations, 1978[1] (Regulations).

[11]      More specifically, in her reasons, the immigration officer noted the following implausibilities:

Applicants forwarded submissions via their lawyer. The membership certificate from the Dhaka Bar Association states he was a member of the association since 1979. It is dated March 13, 1993. The last phrase states: “I wish him every success in life”. This might suggest that applicant [sic] left the bar in 1993 and may have been planning his departure from Bangladesh since then.

The copy of applicant’s i.d. card from the Bar Council of Dhaka is dated August 3, 1996. As per Ali’s [the principal applicant] PIF, he was in hiding in Savar from June 14, 1996 to September 26, 1996. It is implausible that he could obtain the i.d. in Dhaka if he was in Savar.

The letter from the Nationalist Lawyer’s Forum of Dhaka states: “He was an executive Committee Member of the Dhaka Bar Association Unit of the Bangladesh Jatiyotabadi Ainjibi Forum from June 1991 to March 1996.” It seems as though he was no longer a member after March 1996. Applicant was not actively involved in politics. As per his PIF, he was Office Secretary Dhaka District Committee from 1979 to 1984. He may have been Assistant Public Prosecutor for the party in power at the time. However, applicant no longer occupies that position. Due to his leaving Bangladesh in 1996, he is no longer involved with the BNP. Thus, the applicant is no longer involved in politics, and the risks emanating from opposing political parties no longer apply.

Applicant also submitted a copy of an article from The Bangladesh Observer dated October 6, 1992, which refers to him as the prosecutor in an arms case. There is no evidence to sustain that the person in question was released from prison. Assuming it is true, there is no evidence to suggest that the police would not protect him, as the person is a criminal. Furthermore, as applicant was not an active member in politics and, having been a lawyer in the capital of Bangladesh, it is, in my opinion, unlikely that the police would refuse to protect him.

Ali claims that AL goons fractured his son’s hand in April 1996, when unable to find him. There is no mention of having taken his son to the doctor.

Applicant went into hiding on June 14, 1996, after having been attacked by open fire while in his law chamber. He did not ask for police protection. He went into hiding. He claims that the `goons’ searched for him at his home on August 24, 1996. It is implausible that they would have waited that long to search for him if they were targeting him specifically.[2]

[12]      As a result, the immigration officer determined that the applicants “would not be subject to any of the risks included in the definition of the PDRCC class.”

ISSUES

(1) Did the officer exceed her jurisdiction by making adverse findings of credibility where none had been made by the Refugee Board in the first place?

(2) If not, was the officer’s decision unreasonable?

ANALYSIS

(1) Jurisdiction to make adverse findings of credibility

[13]      In numerous instances before this Court, applicants have challenged the PCDO’s decision on the basis that the PCDO should not have relied on the Refugee Division’s reasons and by doing so has fettered his or her discretion. In the case before me, the circumstances are quite unique in that the PCDO did not rely on the Refugee Division’s findings, but rather conducted a completely new assessment of the applicants’ claim.

[14]      The applicants’ case before the PCDO, was almost exclusively based on adverse findings of credibility. In fact, the PCDO found that certain documents before her cast a doubt on the genuineness of the principal applicant’s story.

[15]      Counsel for the applicants argues that it is not appropriate for a PCDO to conduct a fresh assessment of an applicant’s credibility where the Refugee Division has already made a positive assessment thereof. Where no issue has been taken with the Refugee Division’s factual findings, counsel contends that there is no jurisdiction for the PCDO officer to review those findings.

[16]      Although counsel recognizes that technically the PCDO is not bound by the findings of the Refugee Division, she urges that this should not apply to the detriment of the individual applicant or be applied in such a way as to distort the quasi-appellant nature of the PDRCC process.

[17]      As stated many times in case law, the standard for successful judicial review is very high. In fact, this Court will only intervene in decisions rendered by the PCDO if the officer exercised his or her discretion pursuant to improper purposes, irrelevant considerations, with bad faith or in a patently unreasonable manner.[3]

[18]      In the case at bar, I am of the view that the PCDO committed a reviewable error by exercising her discretion pursuant to improper purposes. My reasons follow.

[19]      According to the legislative scheme of the Immigration Act[4] and Regulations,[5] after a negative decision of the Convention Refugee Determination Division, applicants become eligible for a risk assessment to determine whether they are members of the PDRCC class. The PDRCC class definition is set out in subsection 2(1) of the Regulations which read as follows:

2.(1) …

“member of the post-determination refugee claimants in Canada class” means an immigrant in Canada

(a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, …

…

(c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country,

(i) to the immigrant’s life, other than a risk to the immigrant’s life that is caused by the inability of that country to provide adequate health or medical care,

(ii) of extreme sanctions against the immigrant, or

(iii) of inhumane treatment of the immigrant.

[20]      Thus, to be declared members of the post-determination refugee claimants in Canada class, the applicants have to show that if removed to their country of origin, they would be subjected in every part of that country to a risk to their lives or to a risk of extreme sanctions or of inhumane treatment; the risk has to be personal and objectively identifiable.

[21]      Counsel for the respondent submits that the PCDO has the jurisdiction to evaluate the credibility of the evidence before him or her. He relies mainly on the case of Atapour et al. v. Canada (Minister of Citizenship and Immigration),[6] wherein Rouleau J. found that based on the Singh (Pakar) et al. v. Canada (Minister of Citizenship and Immigration)[7] decision the PCDO must conduct an independent assessment of the credibility of the evidence, review all the evidence and draw inferences and attribute probative value to the evidence put before him or her. However, in Singh, Denault J. allowed a PDRCC application given that the PCDO limited her analysis of the risks of return to Malaysia to the wife’s situation, thereby failing to assess the risk the husband could run if he should be removed from Canada. Denault J. held that this oversight showed that the reviewing officer did not consider the totality of the evidence. A careful review of the Singh decision reveals that there is in fact no mention that a PCDO must conduct an independent assessment of the credibility of the evidence before him or her.

[22]      Counsel for the respondent also refers to decisions such as Lishchenko v. Canada (Minister of Citizenship and Immigration),[8] Samoylenko v. Canada (Minister of Citizenship and Immigration),[9] and Kailay v. Canada (Minister of Citizenship and Immigration),[10] wherein this Court stated that the mere fact that the PCDO came to the same conclusion as the Refugee Division does not mean that the PCDO fettered her discretion. In Kailay, I stated that the PCDO is permitted to consider and rely upon the reasons of the Refugee Division provided the officer does not consider himself or herself bound by that decision. He argues that the same logic applies in the present case and that the PCDO is entitled to come to his or her own conclusion with regard to the credibility of the applicants’ allegations.

[23]      I do not agree. In the present case, it appears that the PCDO has in fact substituted her opinion for that of the Refugee Division. In my view, the PCDO conducted a new refugee determination analysis rather than a risk analysis, re-evaluating the applicant’s credibility, and thus exceeding her jurisdiction. I do not believe that the role of the PCDO is to give a “second chance” to an applicant to have his claim revisited. Although it has been described as a type of “quasi-appeal”,[11] I am not ready to conclude that it is an appeal de novo. If this was so, it would have been easy for the legislator to state as such in a express statutory provision.

[24]      As I stated in Baranchook v. Canada (Minister of Citizenship and Immigration):[12]

Logic dictates that the PDRCC “net” could only catch those refugees that have fallen through the Convention Refugee “net”. In other words, the PDRCC process requires that an individual qualify for Convention Refugee determination and fail (for instance because he could not establish a link between his fear of persecution and the grounds enumerated in the definition of a Convention Refugee) in order to qualify for a PDRCC consideration. The PDRCC process is a much narrower mechanism.[13]

[25]      The present case is an ideal illustration of the PDRCC process operating as a safety net. The applicant’s fear may have been outside the scope of protection offered by the Convention, nevertheless, there may very well be a risk to his life if he were to return to Bangladesh.

[26]      It has been established[14] that the Refugee Division has full jurisdiction with respect to credibility determinations given its opportunity and ability to assess the claimants, their demeanour, coherence and consistency in oral testimony. The Refugee Division is empowered to make adverse findings of credibility based on the implausibility of an applicant’s story.

[27]      In my opinion, the PCDO process is an administrative one. As such, the officer’s role is limited to a review of the evidence in the record, including any new documents and submissions presented by the applicants. Thus, it is not open for the officer to conduct a new assessment of an applicant’s credibility and to reverse the credibility findings of the Refugee Division. Just as Nadon J. stated in Hussain v. Canada (Minister of Citizenship and Immigration),[15] that an immigration officer does not sit in appeal or review of the Refugee Board’s decision in a humanitarian and compassionate application, where its purpose is not to reargue the facts which were originally before the Refugee Board, I am of the view that the same applies to a PDRCC application.

[28]      In the present case, the Refugee Division did not make any negative findings with respect to the principal applicant’s credibility. The Refugee Division rejected the applicants’ claim on the basis of an absence of nexus between the applicants’ well-founded fear of persecution and one of the grounds enumerated in the Convention.

[29]      The PCDO’s role in a PDRCC application is to conduct a risk assessment. In the present case, I am of the opinion that the PCDO exceeded her jurisdiction in substituting her opinion for that of the Refugee Division which warrants the intervention of this Court.

[30]      Counsel for the respondent submits that the IFA’s conclusion was not challenged and that there were sufficient grounds for the PCDO to conclude that the applicants would not face a risk if returned. I disagree. I am unable to conclude that the officer would have come to the same conclusion if he would have found the application credible.

[31]      This application for judicial review is allowed. The matter is sent back for redetermination by another post-claim determination officer in accordance with these reasons.

[32]      Counsel for the applicants have requested the following question for certification:

Is it open to a Post-Determination Claim Officer (PDCO) to find a refugee claimant seeking landing as a member of the Post-Determination Refugee Claimants in Canada (PDRCC) class not to be credible, where the Refugee Division, after a full oral hearing into the claim, has already found the same claimant to be credible?

[33]      I am satisfied that this question contemplates an issue of general importance on the role of the PCDO’s process. I will, therefore, certify the proposed question.

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