Date: 20040326
Docket: IMM-869-03
Citation: 2004 FC 457
Ottawa, Ontario, this 26th day of March, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
CIN LAM THANG
Applicant
and
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Cin Lam Thang is a citizen of Myanmar. He arrived in Canada in 2000 claiming a fear of persecution on religious and political grounds in his home country. A panel of the Immigration and Refugee Board rejected Mr. Thang's claim for refugee status because it did not believe his testimony. Mr. Thang then applied for a pre-removal risk assessment under the Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 112. The officer who conducted the risk assessment concluded that Mr. Thang would probably not be at risk of persecution, torture or cruel and unusual treatment if he were returned to Myanmar. Mr. Thang argues that the officer made serious errors in her analysis of his application and asks me to order a re-determination by a different officer.
[2] I have concluded that the officer made an error by failing to consider an important document that Mr. Thang submitted as part of his application. On that basis, I will grant his application for judicial review.
I. Issue
[3] Mr. Thang presented a number of arguments relating to the officer's handling of the relevant evidence. I find that most of those arguments are simply disputes about the weight the officer gave certain evidence and I find no merit in them. I will confine myself to the issue on which I will allow this application for judicial review:
. Did the risk assessment officer err in failing to consider an Amnesty International analysis of the risks Mr. Thang would face if returned to Myanmar?
II. Analysis
[4] Mr. Thang is a member of the Chin ethnic group and is Christian. He participated in political and religious activities in Myanmar connected both to his ethnicity and his religion. He alleged that these activities resulted in his being interrogated and beaten by state officials in 1997. However, he did not leave Myanmar until 2000 after learning that he was likely to be arrested.
[5] Once in Canada, Mr. Thang became involved in the Chin Human Rights Organization (CHRO). He is concerned that these activities have elevated his political profile and increased the likelihood that he will be mistreated if returned to Myanmar. The risk assessment officer disagreed, noting that there was little documentary evidence of mistreatment of CHRO members, other than information coming from the organization itself. The officer concluded that there was little chance that Mr. Thang would be seriously mistreated on his return.
[6] The officer listed numerous documents that she had considered in making her decision. However, absent from the list was a document specially prepared by Amnesty International supporting Mr. Thang's application. The document was based on a review of conditions in Myanmar and interviews with Mr. Thang, and included input from a researcher in England. The Amnesty International document stated:
· Mr. Thang has been involved in demonstrations at the Burmese Embassy in Ottawa and has campaigned against investments in Myanmar by Canadian companies;
· he is a member of the Board of Advisors of the CHRO;
· he may be under surveillance by the embassy;
· his Canadian profile increases the likelihood of his being targeted and arrested if returned;
· his refugee claim in Canada, in itself, may have elevated his profile and increased his risk;
· he could be arrested, unfairly tried, imprisoned, tortured or persecuted on ethnic, religious, or political grounds if returned to Myanmar.
[7] There is a presumption that decision-makers have considered all of the evidence before them, even if they do not refer specifically to each item: Gourenko v. Canada (Solicitor General), [1995] F.C.J. No. 682. However, the more central a document is to the issue to be decided, the greater the obligation on the decision-maker to deal with it specifically: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425. This is particularly so when the document contradicts the decision-maker's own conclusions: Cepeda-Gutierrez, above.
[8] Here, the document in issue is a specific, detailed analysis of the applicant's personal circumstances conducted by a credible source, who arrived at a conclusion contrary to the officer's findings. The officer had a duty at least to refer to that report in her reasons. No doubt, there were grounds on which the officer might have disagreed with Amnesty International's conclusion. That is quite another matter. But the officer should have stated why she found the report unpersuasive.
[9] Accordingly, I will allow this application for judicial review and order that Mr. Thang's application be re-assessed by a different officer. Neither party proposed a question of general importance for me to certify and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed;
2. Mr. Thang's application shall be reconsidered by a different visa officer; and
3. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.
| Immigration and Refugee Protection Act, S.C. 2001, c. 27
Application for protection
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
Exception
(2) Despite subsection (1), a person may not apply for protection if
(a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act;
(b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible;
(c) in the case of a person who has not left Canada since the application for protection was rejected, the prescribed period has not expired; or
(d) in the case of a person who has left Canada since the removal order came into force, less than six months have passed since they left Canada after their claim to refugee protection was determined to be ineligible, abandoned, withdrawn or rejected, or their application for protection was rejected.
Restriction
(3) Refugee protection may not result from an application for protection if the person
(a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;
(b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or
(d) is named in a certificate referred to in subsection 77(1).
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Loi sur l'immigration et la protection des réfugiés, 2001, ch. 27
Demande de protection
112. (1) La personne se trouvant au Canada et qui n'est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).
Exception
(2) Elle n'est pas admise à demander la protection dans les cas suivants_:
a) elle est visée par un arrêté introductif d'instance pris au titre de l'article 15 de la Loi sur l'extradition;
b) sa demande d'asile a été jugée irrecevable au titre de l'alinéa 101(1)e);
c) si elle n'a pas quitté le Canada après le rejet de sa demande de protection, le délai prévu par règlement n'a pas expiré;
d) dans le cas contraire, six mois ne se sont pas écoulés depuis son départ consécutif soit au rejet de sa demande d'asile ou de protection, soit à un prononcé d'irrecevabilité, de désistement ou de retrait de sa demande d'asile.
Restriction
(3) L'asile ne peut être conféré au demandeur dans les cas suivants_:
a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée;
b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d'au moins deux ans ou pour toute déclaration de culpabilité à l'extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d'un emprisonnement maximal d'au moins dix ans;
c) il a été débouté de sa demande d'asile au titre de la section F de l'article premier de la Convention sur les réfugiés; d) il est nommé au certificat visé au paragraphe 77(1).
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-869-03
STYLE OF CAUSE: CIN LAM THANG v. THE SOLICITOR GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 2, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
DATED: March 26, 2004
APPEARANCES:
Laila Demirdache FOR THE APPLICANT
Alex Kaufman FOR THE RESPONDENT
Susanne Pereira
SOLICITORS OF RECORD:
LAILA DEMIRDACHE FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
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