2024 RLLR 21
Citation: 2024 RLLR 21
Tribunal: Refugee Protection Division
Date of Decision: February 9, 2024
Panel: Nicholas Leblanc
Counsel for the Claimant(s): Joseph W. Allen
Country: Bangladesh
RPD Number: TC3-26401
Associated RPD Number(s): N/A
ATIP Number: A-2024-01886
ATIP Pages: N/A
DECISION
[1] MEMBER: This is the decision in the claim for refugee protection made by XXXX XXXX, file number TC-326401. You are claiming to be a citizen of Bangladesh and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act. I have considered your testimony and the other evidence in the case and I am ready to render my decision orally. I found that you are a Convention refugee on the grounds of your political opinion for the following reasons.
[2] You allege to be a citizen of Bangladesh and allege a fear of persecution at the hands of the Bangladesh police and Awami League members due to your work in the media. You allege that you were a XXXX in Bangladesh and would XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX in Bangladesh. As a result you became a political target and fled the country on XXXX XXXX 2022. You allege if you returned you would be arrested and/or killed due to your criticisms of the government. You allege there is no state protection for you or an internal flight alternative.
[3] Your personal identity as a citizen of Bangladesh has been established by your testimony and the personal supporting documents filed in the exhibits, namely the certified true copy of your Bangladesh passport at Exhibit 1 and your birth certificate found at Exhibit 5. I therefore find on a balance of probabilities that your identity and country of reference have been established. I note that the Minister was invited under article 1(e) due to your indication in your TRV application that you are a permanent resident of South Africa, as well as a visa in your passport indicating that you are married to a South African citizen or permanent resident.
[4] At this time the Minister is not responding to the notice of intervention. You allege that you had an agent assist you in obtaining a visa to South Africa and that the agent arranged a fake spousal permit in South Africa due to the fear that you had in Bangladesh. At the hearing you testified that you were able to work and did receive access to medical treatment at — as you received vaccines when you needed them. You were also able to freely travel in and out of the country. You also testified that you were told to pay the South African girl monthly, and through this you could maintain your status in South Africa. However you also stated that you never met her and that you were not actually in a relationship or married to her.
[5] Considering the presumption of truthfulness which I find has not been rebutted in this case, I accept your explanation, that you are not a permanent resident of South Africa. I find your status in South Africa was obtained through fraudulent means due to a fear to your life, and I find that such status has likely elapsed now that you have been outside the country for nearly two (2) years. Furthermore you have provided evidence from some – from South African authorities on how to qualify for a permanent resident permit as a spouse or life partner, which indicates that an individual married to a South African national is able to apply for a permanent residence if the marriage has been over a five (5) year period before the application is submitted.
[6] I note that you have been outside of South Africa since XXXX 2022, and even if you were genuinely genuinely married to this individual, which you allege you were not and I find is the case, this relationship was in 2021 and therefore does not meet the five (5) year requirement. You testified that after three (3) years you would have had to had provided proof of the relationship, which is supported by the objective evidence at Exhibit 6, and evidence of this relationship would not have been available since it did not exist.
[7] I find the status that you did hold while improperly obtained, appears to have been a pathway to permanent residency. However you never met the woman, you were never in a genuine relationship with her. So I therefore find that you never had access to permanent status in South Africa, which was similar to South African nationals. So considering all the evidence before me, I find that at the time of making your TRV application to Canada, you were not a permanent resident of South Africa, and that was information provided by the agent who assisted you in applying for your TRV to Canada. I also find you do not have access to such status today, and I therefore find the issue of exclusion under article 1(e) has been resolved.
[8] I find there is a link between what you fear and a Convention ground, namely political opinion due to your profile as a XXXX who XXXX XXXX XXXX XXXX XXXX XXXX XXXX. I therefore assess your claim under section 96. I note in terms of credibility, to start, that a refugee claimant’s testimony carries with it a rebuttable presumption of truthfulness. In this case, there were no material inconsistency between your testimony and any of the other evidence in the case. So in short I have no reason to doubt the truthfulness of your evidence.
[9] I asked you a number of questions regarding your company XXXX XXXX (ph), and your profession as a XXXX. You described to me the training you took to get a XXXX XXXX and how you were able to establish a company. You told me about your company, including the people you employed and described how you were able to make money off the XXXX to (inaudible) of XXXX. You told me in a fairly detailed manner about a few of the XXXX XXXX XXXX, including the process you undertook XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.
[10] You told me in detail the issues you covered and why you thought it was important to XXXX XXXX XXXX. You provided a thorough summary of the XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and how the issues in Bangladesh led to you feeling compelled to XXXX XXXX XXXX, even though you knew there would be a risk in doing so. You also provided a detailed testimony on your issues in Bangladesh, which started for you after you XXXX XXXX XXXX on XXXX XXXX, 2019. You told me how on XXXX XXXX 2019 you were beaten by Awami League associates and were threatened due to the XXXX XXXX XXXX.
[11] You told me about the injuries you suffered and how you were brought to the hospital by nearby people. You told me how after you returned to Bangladesh from Saudi — from South Africa, you kept a low profile but eventually XXXX XXXX XXXX which led to you receiving a number of threatening phone calls from your agents of persecution. You detailed the attack you experienced in South Africa after you XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. Fearing for your life in South Africa, you decided to return to Bangladesh even though you were fearful there too.
[12] You explained that you had a newborn and decided that you would return and be with your family. However on July 12th 2022, you testified that you were visiting a friend when Awami League members came to your home and assaulted your wife and brother. You explained that you were informed by your brother and stayed at your friend’s home, not seeing your family again until you — and then you came to Canada on XXXX XXXX 2022.
[13] In support of your claim you provided at Exhibits 5 and 6 affidavits from your wife, including proof of your marriage, affidavits from three (3) friends, two (2) in Bangladesh, one (1) in South Africa. You have also provided evidence of your profile as a XXXX in Bangladesh, including proof of your ownership of the XXXX XXXX XXXX select — XXXX XXXX XXXX. Your business certificate, and XXXX XXXX XXXX XXXX XXXX XXXX and were perceived to be against the Bangladesh authorities, which led to the problems you faced in Bangladesh.
[14] I note that I did not ask you to cover all the incidents described in your BOC, and that was because I find on a balance of probabilities you have established your profile as a XXXX who XXXX XXXX XXXX XXXX XXXX XXXX XXXX of Bangladesh. I find this profile alone establishes a serious possibility of persecution of forward-looking risk. However even for the four (4) incidents you did describe, I found you provided detailed testimony on them and find that overall your allegations on a balance of probabilities.
[15] With respect to your returns to Bangladesh from South Africa, I do find it concerning that you would return on two (2) occasions given your profile and the issues you alleged to have experienced. I find the first time you had only experienced the one (1) issue and had been out of the country for a lengthy period of time, and therefore thought that they would have forgotten about you. So I find your explanation with respect to that return reasonable.
[16] With respect to your second return, I do find it concerning, especially considering that you had a visa for Canada. When I asked you about this, you told me how you had a newborn and due to some international pressure, you thought the government was being soft, so you thought the situation would be okay for you.
[17] While I sympathize with your situation, given the birth of your son and that you were in a different country, I do find it problematic that you returned even though you had the ability to travel to a safe country. However notwithstanding these issues, I find your returns to be insufficient to undermine your overall credibility and your subjective fear.
[18] In considering this I have also considered the forward looking risk that you would face upon return to Bangladesh based on your profile. I also note you lived in hiding and left as soon as you were able to. Once in Canada you made a claim less than a month after your arrival, which I find further supports your subjective fear. I therefore find that your subjective fear is established by your testimony and evidence, and I therefore believe what you have alleged on a balance of probabilities.
[19] I also find there is an objective basis for what you fear in Bangladesh. The objective documentation including the National Documentation Package for Bangladesh at Exhibit 3 as well as the country condition articles provided by Counsel in Exhibit 5 support your allegations and the issues experienced by individuals in opposition to the ruling Awami League.
[20] Item 11.7 of the NDP notes that although freedom of expression is a constitutional right in Bangladesh, authorities have long sought to limit freedom of expression, particularly in relation to the media. The Awami League government is reportedly harsh on critics and use a range of laws to prosecute dissident — or dissent.
[21] Item 2.7 states the objective — states that the Awami League also limits expression such as any — sharing any aggressive, false, or threatening information in data and media, including content hurting religious sensitivity. There have been reports of murders of online activists and death threats directed towards people engaged in such activities.
[22] Item 2.1 notes the 2018 Digital Security Act passed in order to reduce cybercrime and provides for sentences of up to 10 year imprisonment for spreading propaganda against the Bangladesh Liberation War, the national anthem, or the national flag. However, sources note that the government has widely used the Digital Security Act against persons questioning the government’s handling of the pandemic, as well as used it to issue other restrictions on freedom of speech including to file charges against journalists.
[23] Item 9.2 describes the existence of a second piece of legislation used to silence critics in Bangladesh, which is the Special Powers Act. According to objective sources, cases under the Special Powers Act are unreported, and few cases involving local activists are publicised. It further notes that the Special Powers Act primarily targets political activists, the opposition, and other critics of the government. Finally at 13.3, it notes that the Awami League is widely reported to be heavy handed in its efforts to stifle dissent, including using enforced disappearances, torture, and extrajudicial killings. So based on the documentary evidence set out, I find that you have established a future risk that you would be subjected to arrest, detention, harassment, and torture at the hands of Bangladesh authorities due to your XXXX and anti-government profile. As a result I find you have a well founded fear of persecution.
[24] In terms of state protection where agents of the state themselves are sources of persecution, the presumption of state protection may be rebutted without exhausting all avenues of recourse in the country. In this case you testified that the agents of persecution are members of the Awami League, the ruling party of Bangladesh, as well as the police who are working in collaboration with the Awami League. A report by Australia’s Department of Foreign Affairs and Trade states that victims of abuse have limited avenues for effective recourse in cases where the perpetrator belongs to a state agency.
[25] I also note that at Item 1.17 it notes that Bangladesh is ranked as one (1) of the most corrupt countries in the world. Corruption is pervasive at all levels of society and is endemic in the judicial system, police, and public services. As a result, political interference and corruption constrain the rule of law in Bangladesh, and the military, police, and lower courts can be heavily politicised, under-resourced, and subject to corruption. Based on your personal circumstances and your profile as well as the objective country documentation, I find that you have rebutted the presumption of state protection.
[26] Given that the agent of persecution in your case is the state, I find that the test for an internal flight alternative fails at the first prong. That is, that you face a serious possibility of persecution even if you were to relocate in Bangladesh, and therefore there is not a viable internal flight alternative available to you.
[27] So in conclusion based on the totality of the evidence, I find you to be a Convention refugee, therefore I accept your claim.
——— REASONS CONCLUDED ———