Docket: IMM-2336-15
Citation:
2015 FC 1256
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 5, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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GILBERT CRUZE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Preliminary
[1]
On judicial review, to understand the evidence
(subjective and objective) of a refugee protection claimant’s story, one must
understand the encyclopedia of references, the dictionary of terms, the gallery
of portraits and the background music of the original claim to discover whether
there is harmony or cacophony in the inherent logic of the story’s background
music, based on the conditions in the applicant’s country of origin.
[2]
This ensures that a specialized tribunal has
considered the evidence, layer by layer, in accordance with its specialized
jurisdiction. This substantive examination falls within the domain of the
specialized tribunal, not the Federal Court, but upon judicial review, it is
the Federal Court that ensures that the specialized tribunal’s decision is
reasonable, in light of that tribunal’s mandate.
[3]
To understand whether a specialized tribunal’s
decision regarding an applicant’s objective and subjective fear is reasonable,
it is necessary to distinguish, understand and thus study the evidence in accordance
with this fear, thereby uncovering the anxiety, dejection, unhappiness,
sadness, depression, despair, anger, frustration, annoyance, resentment, active
and passive silence (and sometimes the cry from the heart that sticks in the
throat, such that it is the specialized tribunal that becomes the voice of
those who no longer have one, as it may be impossible to hear over the
pervasive silence) and, in contrast, the celebration or everyday routine of a
non-targeted citizen of the country in question. All of this must be taken into
account when analyzing whether a specialized tribunal’s decision is, on the
whole, reasonable in accordance with Ye v Canada (Minister of Employment and
Immigration), [1992] FCJ No 584, 34 ACWS (3d) 241 (FCA) [Ye],
of the Federal Court of Appeal; and in accordance with Dunsmuir v New Brunswick,
[2008] 1 S.C.R. 190, 2008 SCC 9 [Dunsmuir]; Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, [2011] 3 S.C.R. 654,
2011 SCC 61; Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), [2011] 3 S.C.R. 708, 2011 SCC 62, of the Supreme
Court.
II.
Introduction
[4]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of a decision of the Refugee Protection Division [RPD] of
the Immigration and Refugee Board of Canada, dated April 2, 2015, by which
the applicant’s refugee protection claim was rejected.
III.
Facts
[5]
The applicant, Gilbert Cruze, is a Christian
citizen of Bangladesh who worked as a chef.
[6]
The applicant was hired by the Dhaka Sheraton
Hotel in Dhaka, Bangladesh, in November 2003. He did not run into any
problems until April 1, 2011, when the hotel changed owners and was
renamed the Ruposhi Bangala Hotel [Hotel]. At that time, the applicant held the
position of head chef and was the only Christian in a management position at
the Hotel; all his other colleagues were Muslims. After the change in
ownership, the applicant alleges that corruption, nepotism and political
influence became common practice in the Hotel’s management.
[7]
Shiraz Rahma Hussain, at the time a demi-chef and
leader of the employee’s union at the Hotel, allegedly conspired to have the
applicant fired so that he could take over his position. The applicant alleges
that on June 20, 2011, while he was at a bus station, Mr. Hussain and
his gang of alleged members of Islamic extremist group Jamaat-e-Islami
assaulted and threatened to kill him. Mr. Hussain and his gang allegedly
told the applicant that he should forget about his job at the Hotel and that,
given that he was a [translation] “dirty Christian”, he should leave Bangladesh for good
by July 6, 2011.
[8]
The applicant fled Bangladesh and arrived in Canada
on July 6, 2011, on a work visa he had obtained in May 2011. The applicant
alleges that he did not know when he arrived in Canada that his work visa would
expire on February 28, 2012, and that he expected that his employer, a
restaurant named Moghel Tandoori, would take care of the visa extension
applications. In June 2012, he applied for a work visa extension, which
was denied in October 2012 because the application was submitted after his
temporary resident visa had expired.
[9]
In April 2014, the applicant filed his refugee
protection claim. The Refugee Protection Division [RPD] rejected this claim in
a decision dated July 8, 2014. On appeal, the RAD confirmed the RPD’s
decision. It is the RAD’s decision that is under judicial review here.
IV.
RAD decision
[10]
In its decision dated April 2, 2015, the RAD
confirmed the RPD’s decision determining that the applicant was not a
Convention refugee or a person in need of protection under the IRPA. The RAD
acknowledged that, as a specialized tribunal, it had to review all the evidence
to determine whether the RPD’s decision was justified, having regard to the
evidence and the contents of the record presented before the RPD. The RAD
nonetheless had to show deference to the RPD’s findings on credibility or any
other findings where the RPD had a particular advantage.
[11]
The RAD concluded that the RPD was justified in
concluding that the applicant’s delay in claiming refugee protection and his
failure to discuss or mention having been the victim of religious persecution undermined
his credibility. According to the RAD, the refugee protection claim should be
the first resort of a person fearing persecution, not the last, as is the case
here.
[12]
Moreover, the RAD rejected the applicant’s other
three arguments to the effect that the RPD had made negative findings regarding
the applicant’s credibility that were unfounded. First, the RAD rejected the
applicant’s argument that the RPD made a negative finding simply because the
applicant answered frankly that he had left Bangladesh to come to Canada on a
work visa. The RAD found that the RPD’s decision could not be segmented like
this, noting that the RPD had also raised the fact that the applicant had begun
making preparations to work in Canada in July 2010. Second, the RAD
rejected the applicant’s argument that the RPD had erred in making a negative
finding regarding the applicant because he had failed to record in his Basis of
Claim Form [BOC Form] that he had been accused of cooking pork and criticizing
the prophet Mohammed. The RPD had mentioned in its decision that a person
accused of blasphemy would have noted this in his or her BOC Form, which the
applicant had not done. The RAD rejected this conclusion, finding that the
applicant placed too much emphasis on the word [translation]
“blasphemy” and that the RPD had simply
wanted to covey that Muslim fundamentalists take a very dim view of negative
comments about the prophet Mohammed and that, in his BOC Form, the applicant
mentioned only that he was called a [translation]
“dirty Christian” who should leave Bangladesh
for good. Third, the RAD concluded that it agreed with the RPD’s finding that
if the applicant had truly been persecuted as a Bangladeshi Christian, he would
have discussed his problems in Bangladesh with other Christians from Bangladesh
after coming to Canada. Religious persecution is not viewed as a personal issue
that cannot be discussed openly. In short, the RAD concluded that the applicant
had not been persecuted because of his religious beliefs and that his problems
were instead related to the fact that Shiraz Rahma Hussain wanted his position
as head chef at the Hotel. Given that Mr. Hussain took over the
applicant’s position, and that the applicant no longer works at the Hotel,
Mr. Hussain would have no reason to continue looking for the applicant.
Taking all these factors into consideration, the RAD determined that the
applicant is not a Convention refugee or a person in need of protection, and
that the applicant would probably have no trouble finding a job at another
international hotel chain in Bangladesh.
V.
Issues
[13]
The Court is of the view that the application
raises the following issues:
1)
Did the RAD err in finding that the delay in
claiming refugee protection undermined the applicant’s credibility?
2)
Did the RAD err in finding that the applicant’s
problems were related to his envious co-worker and that he was not persecuted
because of his religious beliefs?
VI.
Statutory provisions
[14]
The following provisions of the IRPA apply:
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Convention refugee
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Définition de « réfugié »
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
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96. A qualité de réfugié au sens de la
Convention — le réfugié — la personne qui, craignant avec raison d’être
persécutée du fait de sa race, de sa religion, de sa nationalité, de son
appartenance à un groupe social ou de ses opinions politiques :
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(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
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a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
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(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
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b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
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Person in need of protection
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Personne à protéger
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97. (1)
A person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
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97. (1) A qualité de personne à
protéger la personne qui se trouve au Canada et serait personnellement, par
son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de
nationalité, dans lequel elle avait sa résidence habituelle, exposée :
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(a) to a danger, believed on substantial grounds to exist,
of torture within the meaning of Article 1 of the Convention Against Torture;
or
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a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
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(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i)
the person is unable or, because of that risk, unwilling to avail themself of
the protection of that country,
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(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
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(ii)
the risk would be faced by the person in every part of that country and is
not faced generally by other individuals in or from that country,
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(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
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(iii)
the risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
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(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
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(iv)
the risk is not caused by the inability of that country to provide adequate
health or medical care.
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(iv) la menace ou le risque ne résulte pas de l’incapacité du
pays de fournir des soins médicaux ou de santé adéquats.
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(2) A person in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A également qualité de personne à protéger la personne qui se
trouve au Canada et fait partie d’une catégorie de personnes auxquelles est
reconnu par règlement le besoin de protection.
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VII.
Positions of the parties
A.
Applicant’s position
[15]
On the one hand, the applicant submits that the
RAD erred in concluding that the refugee protection claim should have been the
applicant’s first course of action. The applicant submits that it was a mistake
for the RAD to conclude as it did because the case law of this Court has
already held that what counts is the result, that is, that the person
persecuted in his or her country be in Canada (Papsouev v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No 769, 168 FTR 99 [Papsouev]).
Since the applicant thought that his work permit would give him access to
permanent residence under the Canadian experience class, the result was the
same: allowing him to remain in Canada.
[16]
Second, contrary to what the RAD concluded, the
applicant submits that he did not try to divide up the RPD’s decision. In his
testimony before the RPD, the applicant clearly answered that he had come to
Canada to work, given that he had a work permit. Moreover, his efforts to
obtain the work permit came well before his problems in Bangladesh.
[17]
Third, the applicant submits that Mr. Hussain’s
feelings towards him are based on the fact that he is a Christian. The tension
created by the RAD between Mr. Hussain’s professional and monetary
interests and the possibility that the applicant was targeted because he is
Christian is an error in law. The applicant notes that he was physically
attacked and insulted in regard to his religious beliefs. The applicant submits
that, contrary to what the respondent claims, the applicant’s prospective fear
is not a fresh issue and was argued before the tribunal.
[18]
Finally, the applicant submits that the RAD
relied solely on one item of documentary evidence regarding the situation of
Christians in Bangladesh, namely, the 2012 International Religious Freedom
Report, and that the RAD had a duty to consider the situation that a
Bangladeshi Christian would have experienced if he had to return to Bangladesh
in 2014. Neither the RPD nor the RAD conducted such an analysis. The applicant
submits that although the RAD had documentary evidence on the situation of
Christians in Bangladesh, it concluded that the applicant had merely suffered
discrimination in his workplace, not persecution, and that he could likely find
other employment in Bangladesh. The applicant submits that there was no
evidence in the record that would allow the RAD to affirm the existence of new
international chains or the current practices of these chains. In short, the
applicant submits that the RAD’s decision is not reasonable.
B.
Respondent’s position
[19]
On the other hand, the respondent submits that the
RAD was reasonable in confirming the RPD’s decision. Regarding the first issue,
the respondent submits that the RAD could reasonably conclude that the
applicant’s behaviour in submitting a late claim was inconsistent with the
behaviour of a person fearing for his or her life. This behaviour was a factor
that could be taken into consideration when assessing the applicant’s
credibility (Exantus v Canada (Minister of Citizenship and Immigration),
2015 FC 39 [Exantus]; Nijjer v Canada (Minister of
Citizenship and Immigration), 2009 FC 1259). The respondent
submits that a refugee protection claim should not be used as an alternative
means of entering Canada.
[20]
The respondent submits that the applicant’s
argument that the RPD and the RAD failed to analyze his prospective fear is a
fresh argument that was not made before the RAD and therefore cannot be pleaded
on judicial review. The respondent submits that the onus was on the applicant
to prove a prospective fear of persecution (Katwaru v Canada (Minister of
Citizenship and Immigration), 2010 FC 196; Pour-Shariati v Canada
(Minister of Employment and Immigration), [1995] 1 FCR 767, [1994] FCJ No
1928). Moreover, the RAD concluded that the applicant’s problems were related
to Mr. Hussain’s envy, not the applicant’s religious beliefs, which means
that Mr. Hussain would have no reason to keep looking for the applicant. The
respondent also submits that the documentary evidence is, on its own,
insufficient to conclude that the applicant is at risk as a Bangladeshi
Christian. The respondent submits that the RAD’s findings to the effect that
the applicant does not have a real prospective fear of persecution are
therefore reasonable. In short, the respondent submits that the applicant has
not proven that the RAD erred in its findings. Therefore, the RAD’s decision is
reasonable.
VIII.
Standard of review
[21]
The RAD’s findings regarding the applicant’s
credibility are a question of fact, while the RAD’s findings regarding the
concept of persecution are a question of mixed fact and law. These findings
must be reviewed in accordance with the reasonableness standard (St Louis v Canada
(Minister of Citizenship and Immigration), 2015 FC 996; Perez
v Canada (Minister of Citizenship and Immigration), 2015 FC 1100).
The RAD’s decision is reasonable if it is justifiable, transparent and
intelligible and falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir, above at para 47).
IX.
Analysis
A.
Timing of claim
[22]
The RAD paid particular attention to the
applicant’s delay in filing his claim for refugee protection, stating that it
agreed with the RPD’s conclusion that [translation]
“claiming refugee protection would be the
‘first’ resort of a person fearing persecution, not the ‘last’ resort” (RAD
Decision, para 26).
[23]
Although it is true that a delay in filing a
claim for refugee protection is an element that may be considered in the
assessment of a claimant’s credibility (Exantus, above at para 29),
it is not true that a refugee protection claim must be the first course of
action (Kaissi v Canada (Minister of Citizenship and Immigration), 2013 FC 234;
Papsouev, above; Espinosa v Canada (Minister of Citizenship and Immigration),
2003 FC 1324 [Espinosa]). Nonetheless, if a refugee protection
claimant is unable to provide any satisfactory explanation for the delay, this
could be fatal to his or her claim (Espinosa, above at para 17).
[24]
In the present case, the applicant explained in
his testimony why he had waited before filing his refugee protection claim. The
RPD found that the applicant’s explanations were not credible and therefore
rejected them:
[41] The tribunal acknowledged that the
claimant does not speak English or French well. There are also some cultural
factors that may prevent individuals from disclosing some personal matters.
[42] In the present case, the tribunal
did not find a person who feared persecution because of his religion would be a
highly private matter that would prevent that person from talking to members of
his community or for that matter a catholic priest of his own community. The
tribunal found the claimant not credible since there is a large discrepancy
between his behaviour, by not speaking to father Thomas and other members of
his church about his problems and his fear to return to Bangladesh or to seek
help, and his allegation of fear of harm or persecution if he was to return to
Bangladesh.
[Emphasis added.]
[25]
The RPD acknowledged that certain cultural
factors may have influenced the applicant’s behaviour. However, simply stating
this does not demonstrate that the RPD actually considered the applicant’s
cultural background. From the ample evidence filed by the applicant, it appears
that Christians in Bangladesh are often the victims of discrimination, even
persecution, and that a culture of silence has taken hold in Christian
communities:
Bangladeshi Christians are very secretive
because they fear “retaliation” for their faith, she said. Persecution
generally comes from community pressure, such as refusing to share a village
water well with Christians, or refusing to hire them. Employment discrimination
against Christians can result in poverty. While the government is not directly
responsible, officials don’t do anything about the persecution, so it
continues. [Emphasis added.]
(Exhibit P-2, Applicant’s Record, Christians
suffer violent persecution in Bangladesh, WNG.org, January 15, 2014)
This culture of silence, recognized by objective evidence, causes
people to lead an internalized existence whereby they do not openly reveal
their fears so as not to draw attention to the differences that set them apart
from the majority culture.
[26]
Although certain acts may seem implausible from
a North American perspective, they may be plausible in the environment where
the applicant comes from (Ye, above). That being the case, the RAD
should not have been so quick to apply North American logic and reasoning to
the applicant’s behaviour without giving consideration to his age, cultural
background and previous social experiences (R.K.L. v Canada (Minister of
Citizenship and Immigration), 2003 FCT 116 at para 12; Rahnema v Canada
(Solicitor General), [1993] FCJ No 1431). In short, it was not
reasonable for the RPD to conclude as it did, and the RAD had a duty to correct
this error.
B.
Persecution of Christians in Bangladesh
[27]
The applicant filed numerous newspaper articles describing
acts of violence and persecution towards Christians in Bangladesh. The
objective documentary evidence clearly shows that religious minorities in Bangladesh,
including Christians, may be victims of violence and harassment, and that
sometimes the state itself may have perpetrated such acts or been slow in
protecting religious minorities against acts of violence:
The constitution states that Islam is the
state religion, but reaffirms the nation is a secular state that “shall ensure
equal status and equal rights in the practice of the Hindu, Buddhist, Christian,
and other religions.” Government officials, including police, were sometimes
slow to protect members of minority religious groups from violence, and there
were several reports of involvement of government-affiliated actors in such
violence. The government took steps to assist victims and restore religious and
private property damaged in the violence.
There were reports of societal abuses and
discrimination based on religious affiliation, belief, or practice. There were
a large number of arson attacks and looting of minority religious sites and
private homes across the country, especially against the Hindu community. Members
of the Sunni Muslim majority at times harassed and physically attacked members
of the Hindu, Christian, Buddhist, and Ahmadiyya Muslim minority religious
groups. The government and many civil society leaders stated that violence
against members of minority religious groups normally had economic or criminal
dimensions, and could not be attributed solely to religious belief or
affiliation.
. . .
[T]he U.S. embassy expressed strong
concern over acts of religious intolerance and encouraged the government to
protect the rights of members of minority religious groups.
[Emphasis added.]
(United States, Department of State, Bangladesh
2013 International Religious Freedom Report, July 28, 2014).
[28]
The RAD concluded in its decision that the
problems experienced by the applicant in Bangladesh were because of Mr. Hussain’s
desire to take over the applicant’s job, not because of the applicant’s
religious beliefs; and that, given that the applicant had left the Hotel, he
would no longer be targeted by Mr. Hussain and his gang if he were to
return to Bangladesh (RAD Decision, para 30).
[29]
In concluding as it did, the RAD does not appear
to have taken into consideration the documentary evidence that shows that
religious minorities in Bangladesh are often targeted by Islamic extremist
militant groups, such as Jamatt-e-Islami. The fact that the applicant was the
only Christian employee in a management position at the Hotel seems to
strengthen the argument that he was targeted because of his religious beliefs
and not simply because of his position.
[30]
Given the applicant’s situation, the RAD
erred in concluding that the applicant’s problems were linked solely to
Mr. Hussain’s desire to take over the applicant’s position and not to his
religious beliefs; and that, if the applicant were to return to Bangladesh,
these assailants would no longer have a reason to hunt him down. This
conclusion is entirely inconsistent with the ample documentary evidence filed
by the applicant which shows that Christians are frequently targeted by Islamic
extremist militant groups. It is important to bear in mind that, according to
the evidence, as head chef, the applicant was in charge of the food and that
the extremists referred to him as the [translation]
“dirty Christian”, which according to
tradition and custom implies a lack of cleanliness with regard to Islamic
extremist ideology.
[31]
In short, given the situation of religious
minorities in Bangladesh, it appears that the RAD will have to conduct a
thorough re-examination of the refugee protection claim, given the possibility,
according to both the subjective and the objective evidence, that the applicant
may face a real risk of persecution.
[32]
Realizing that the applicant’s situation is a
paradox, according to the specified objective evidence, as a consequence of the
culture of silence that prevails among Christians in Bangladesh, according to
the circumstances, it appears that a new and more thorough examination of the
evidence by the specialized tribunal would be necessary to ensure that a
decision is made while taking into account the evidence as a whole, in the
prevailing context in Bangladesh.
X.
Conclusion
[33]
The Court concludes that the RAD’s decision does
not fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law. The application for judicial review is
therefore allowed.
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