2023 RLLR 122

Citation: 2023 RLLR 122
Tribunal: Refugee Protection Division
Date of Decision: December 7, 2023
Panel: Janet Walker
Counsel for the Claimant(s): Douglas Lehrer
Country: Bangladesh
RPD Number: TC3-00079
Associated RPD Number(s): N/A
ATIP Number: A-2024-00768
ATIP Pages: 000007-000014

DECISION

[1]       XXXXX (“the Claimant) claims to be a citizen of Bangladesh and no other country. He seeks refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act1 (the “IRPA”).

ALLEGATIONS

[2]       The Claimant’s allegations are found in his Basis of Claim2 Form and narrative, and his Basis of Claim Amendment3. In summary, the Claimant and his family are Roman Catholics who have been persecuted by Jamaat-e-Islami and Shabir criminals for a period of over 20 years. During this time, his mother and his sisters were harassed for not wearing the hijab, and his father lost his land and several businesses. The family moved to Gazipur where they remain in hiding, after relocating several times within Bangladesh. The family made numerous attempts to report these persecutory incidents to the authorities, but police protection was not forthcoming. After Shabir criminals threatened the Claimant with kidnapping in XX 2020 he obtained a travel visa to continue his studies in Canada, with a view to obtaining a work permit and becoming a Permanent Resident. When he was unable to renew his study permit in 2022, the Claimant filed a claim for refugee protection.

DETERMINATION

[3]       The Panel finds that the Claimant is a Convention refugee under section 96 of the IRPA.

ANALYSIS

Determinative Issue

[4]       The determinative issue in this claim is credibility.

Nexus

[5]       As the Claimant’s alleges persecution based on his Roman Catholic faith, his claim was assessed under section 96 of the IRPA.

Identity

[6]       The Panel finds that the Claimant’s identity as a citizen of the People’s Republic of Bangladesh has been established by his passport, a true copy of which was provided in the evidence.4 The Panel further finds that his personal history and religious identity have been established by the Claimant, who provided proof of his baptism and confirmation in the Roman Catholic faith.5

Well-Foundedness of Persecution

Credibility

[7]       In making its determination, the Panel had regard to the Federal Court jurisprudence on the issue of credibility. Maldonado6 stands for the principle that when a claimant swears to the truth of certain allegations, this creates a presumption that those allegations are true, unless there is reason to doubt their truthfulness. The Panel was also mindful of the challenges that Claimants face in the hearing room.

[8]       The Panel found the Claimant to be credible, noting that his hesitancy in some of his answers was due to his nervousness. The Panel found that he did not embellish his claims, and was forthright in explaining his plan to escape persecution in Bangladesh by completing his education in Canada, obtaining a work permit, and becoming a Permanent Resident. While the Panel questioned his focus on this path rather than claiming refugee protection, it has no reason to doubt his belief that this plan would ensure his safety.

Subjective Fear

[9]       The Panel’ s decision to allow his claim rests on the core issue, namely that the Claimant suffered discrimination amounting to persecution as child and young adult due to his faith, and later became the target of direct threats to his life from Shabir criminals. In this respect, the Panel found his testimony to be credible.

[10]     The Panel finds, on a balance of probabilities, that the Claimant established his profile as an adherent of the Roman Catholic faith. When questioned, he identified the tenets of Roman Catholicism, its rites and rituals, and described his participation in the Church both in Bangladesh and in Canada. In addition to those documents supporting his baptism and confirmation into the Roman Catholic faith, the Claimant provided a letter from his parish in Toronto which indicated that he has been actively involved since shortly after his arrival in Canada.7

[11]     The Claimant’ s religious profile was further supported by other documentary evidence, including affidavits from family members, family friends and his father’s employees.8 This documentation also supported the well-foundedness of his fear of persecution from Jamaat-e­ Islami and Shabir criminals as an adherent of the Roman Catholic faith.

[12]     The Panel finds that the Claimant has established his profile as a Roman Catholic and that he has a well-founded fear of persecution from Islamic fundamentalist groups on that basis.

Objective Evidence

[13]     The objective country evidence found in the National Documentation Package for Bangladesh9 supports the well-foundedness of the Claimant’s fear of persecution as a member of a religious minority at the hands of Jamaat-e-Islami and Shabir criminals.

[14]     According to the United Kingdom (UK) Home Office Report on Policial Parties and Affiliations, Jamaat-e-Islami is committed to establishing an Islamic state and society. It rejects secularism, socialism and nationalism, principles of state that are established by the Constitution of Bangladesh.10 Jamaat-e-Islami is the largest Islamic “party” in Bangladesh, although it was officially de-registered as an official party in 2013.11 It nevertheless remains a highly organized and powerful group, with access to large-scale networks and associate organizations, including the Shabir criminals, who are active on campuses of educational institutions, and foment violence at their behest. 12

[15]     The objective country evidence supports the Claimant’s allegations that the situation for Christians is unsafe, noting that there are significant attacks on places of worship and on homes.13 It indicates that the government has failed to protect them, and that the perpetrators

enjoy impunity, and that the situation of Christians is becoming increasingly dire with the rise of Islamic extremism.14

[16]     The Panel finds that the Claimant has established, on a balance of probabilities, that there is an objective basis for his well-founded fear of persecution as a Roman Catholic from Islamic fundamentalist groups in Bangladesh.

State Protection

 

[17]     There is a presumption that except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. To rebut the presumption of state protection, a claimant must provide clear and convincing evidence of the state’s inability to protect its citizens.15

[18]     The Claimant testified that protection would not be forthcoming because his agents of persecution are Islamic fundamentalists in Bangladesh and the police, who he believes are working in collusion, have declined to assist him and his family.

[19]     The objective country evidence indicates that where a claimant receives persecution from state actors, it is more likely than not that protection is unavailable. For example, the report of the UK Home Office indicates that “[w]here the person’s fear is of persecution and/or serious harm by the state, they will not be able to avail themselves of the protection of the authorities.”16

[20]     Further, the 2018 Freedom in the World Report for Bangladesh indicates that “[ e]ndemic corruption and criminality, weak rule of law, limited bureaucratic transparency, and political polarization have long undermined government accountability.”17

[21]     The Australian DFAT country information report on Bangladesh found that “corruption is pervasive at all levels of society, and is particularly pervasive in the judicial system, police, and public services. Low salaries for employees in these sectors frequently lead to them demanding facilitation payments to supplement their income.”18 The DFAT report further found that within Bangladesh, “anti-corruption legislation is inadequately enforced, and prosecutions for corruption are rare.”19

[22]     The NDP makes clear that the fundamentalist religious and political group, Jamaat-e­ Islami, is the agent of persecution and the state has condoned their activities. Thus, in these circumstances, there is clear and convincing evidence that the state is unable or unwilling to protect the claimant. Accordingly, the panel finds that the Claimant has met the burden of proof, on a balance of probabilities, and the presumption of state protection has been rebutted.

Internal Flight Alternative

[23]     The Federal Court of Appeal established a two-part test for assessing an IFA in Rasaratnam and Thirunavukkarasu:

  1. As per Rasaratnam, “the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists”20 and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA.
  1. Moreover, the conditions in the part of the country considered to be an IFA must

be such that it would not be unreasonable in all the circumstances including those particular to the claim, for him to seek refuge there.21

[24]     The claimant bears the burden of proof to demonstrate that he would be persecuted on a convention ground, or subject personally, on a balance of probabilities, to a risk to life or a risk of cruel and unusual treatment or punishment in all of Bangladesh.

[25]     Regarding internal relocation, the UK Home Office Report for Bangladesh states that “[i]f the person’s fear is of persecution or serious harm at the hands of the state, they may not be able to relocate to escape that risk.”22

[26]     The Claimant testified that the influence of the Jamaat-e-Islami is prevalent throughout all segments of society and they wield their influence economically, socially, and through criminal acts. It was for this reason that the Claimant relocated with his family within Bangladesh several times. He testified that while his family is living in a Christian community in Gazipur, they are essentially in hiding, and no longer enjoy a normal life. Moreover, his letters of support indicate that the Shabir criminals continue to canvas the Dhaka neighbourhood where the Claimant lived prior to his departure, in an effort to ascertain the whereabouts of the Claimant and his family.23 The letters indicate that Claimant’ s safety would not be forthcoming and the fundamentalist group, Jamaat-e-Islami, were diligently pursuing the claimant and his family members.

[27]     Having carefully considered the totality of the evidence, the Panel finds that there is a serious risk of persecution throughout Bangladesh. Thus, in the particular circumstances of the Claimant, who has been pursued by radical Islamic groups that operate with impunity throughout Bangladesh and are supported by the Bangladeshi police, an internal flight alternative is unavailable. Therefore, the first prong of the test for the internal flight alternative has not been satisfied.

CONCLUSION

[28]     For the above reasons, the Panel finds XXXXX to be a Convention refugee under section 96 of the IRPA. The Claimant has established that there is a reasonable chance of persecution from Islamic extremists due to his religious beliefs if he were to return to Bangladesh today.

——— REASONS CONCLUDED ———

1 The Immigration and Refugee Protection Act (IRPA), S.C. 2001, c.27, as amended, sections 96 and 97(1).

2 Exhibit 2, Basis of Claim, TC3-00079.

3 Exhibit 6, Claimant’s Personal Disclosure, Basis of Claim Amendment, November I 0, 2023.

4 Exhibit l, Package of Claims Referral Information from CBSA/IRCC, October 31, 2023.

5 Exhibits 5, 7, 8 and 9, Claimant’s Personal Disclosure, November 10, 2023.

6 Maldonado, Pedro Enrique Juarez v. MC.I. (F.C.A., no. A-450-79), Heald, Ryan, MacKay, November 19, 1979.

Reported: Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34

(F.C.A.).

7 Exhibit 5, supra note 5.

8 Supra note 5.

9 Exhibit 3, National Documentation Package for Bangladesh, August 31, 2023.

10 Exhibit 3, Item 4.10, U.K. Home Office Report, Bangladesh: Political Parties and Affiliations, Section 7; Item 4.9, Facing Jamaat-e-Islami in Bangladesh, section IV.

11 Ibid., Item 1.17, Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information

Report on Bangladesh, November 30, 2022 at pp. 24-25.

12 Supra note 10, Section 7.3.

13 Exhibit 3, supra note 9, Item 2.19, Solidarity Group For Bangladesh, Human Rights in Bangladesh at p. 21; Item

12.2, U.S. Commission on International Religious Freedom, Challenges to Religious Freedom in Bangladesh at p. 4.

14 Supra note 10, Item 4.9.

15 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

16 Supra note 9, Item 9. I, Country Policy and Information Note: Bangladesh, U.K. Home Office, April 2020, section 2.3.3.

17 Supra note 9, Item 2.4

18 Supra note 9, Item 1.17 at p. 34.

19 Ibid.

20 Rasaratnam, Sivaganthan v. M.E.I (F.C.A., no. A-232-91), Mahoney, Stone, Linden, December 5, 1991. Reported: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at para 9.

21 Thirunavukkarasu, Sathiyanathan v. M.E.I (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993.

Reported: 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.).

22 Supra note 9, Item I. 10 at p. 7.

23 Exhibit 5, supra note 5.