Date:
20121113
Docket:
IMM-8504-11
Citation:
2012 FC 1317
Ottawa, Ontario,
November 13, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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MYO KHINE NAY
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated
October 27, 2011, which found that the applicant was neither a Convention
refugee nor a person in need of protection pursuant to sections 96 and 97 of
the Immigration and Refugee Protection Act, SC 2001, c 27. For the
reasons that follow the application is granted.
Facts
[2]
The
applicant is a citizen of Burma (Myanmar). He lived in Taiwan from 2000 to 2008, studying pharmacy and working. While there, he donated money to
monks who provided humanitarian relief in Burma.
[3]
The
applicant entered Canada as a student on April 9, 2009. In October of 2009, he
claims to have learned that the Burmese military arrested a monk, Uananda,
while raiding a monastery and that the military found a list of donors during
the raid. The applicant alleges that his friend, Khin Zaw Hlat, was arrested
because his name was on the list and that the authorities found the names of
donors at his home as well. He says that his name would also be on these
lists. The applicant alleges that his sister called him from Burma to say that the authorities went to their home and demanded their father call him back to the
country because of his fundraising activities in Taiwan.
[4]
The
applicant claimed refugee protection on October 14, 2009.
[5]
Since
arriving in Canada the applicant has been involved with a Burmese Buddhist
temple. He says that the authorities still harass his parents about when he
will return and that his father was detained by the police. He believes that
the Burmese authorities may know where he is because there are photos of him
with Canadian monks.
Decision Under Review
[6]
The
Board decided that the applicant did not provide sufficient credible evidence
to establish that there is serious possibility he is at risk.
[7]
The
Board considered the applicant’s evidence to be contradictory on an essential element
of his claim. The applicant was asked why the monk would keep a list of
donors. The applicant said that in accordance with Buddhist practice only the
monastery keeps a list. The Board then asked why his friend was also found
with a list. The applicant said that donors communicate through email and so
those involved in fundraising have a list.
[8]
The
Board also decided that the applicant’s testimony lacked corroboration:
•
There
was no documentation to show that a monk returning from Taiwan had been arrested in 2009.
•
The
applicant could not produce his own email correspondence about the donations.
He said that his records were destroyed by a computer virus.
•
The
applicant claimed he is a member of the All Burma Monks Alliance. However, the
supporting letter he provided named two different associations: International
Burmese Monks Organization and Burma Buddhist Association of Ontario.
[9]
The
Board determined that the applicant had been involved in humanitarian efforts,
but was not a major donor with a prominent profile.
[10]
The
Board also found that there was no evidence that the applicant’s activities in Canada had been transmitted back to Burma. The applicant did not provide any evidence that
similarly situated individuals had been persecuted after returning to Burma from Canada.
Issue
[11]
The
issue for this judicial review is whether the Board reasonably decided that the
applicant is not a Convention refugee nor a person in need of protection: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[12]
The
decision must be set aside.
[13]
The
applicant argues that the Board placed too high a burden on him. Specifically,
the applicant claims that the Board should not have expected him to have been
able to provide documentation such as a media report about a specific monk’s
arrest. He notes that in Burma the press is not free and the regime monitors
the internet, mail and phones. I agree with this submission.
[14]
The
respondent relies on Bin v Canada (Minister of Citizenship and Immigration),
2001 FCT 1246 for the principle that the Board can take into account a lack of
corroborating evidence. In that case, Justice Pelletier explained “… where a
claimant's story has been found to be implausible, a lack of documentary
corroboration can be a valid consideration for purposes of assessing
credibility.” In Bin, the applicant’s story included “a number of
internal contradictions and inconsistencies.” Additionally, the documents
sought as corroborating evidence would have been reasonably available.
[15]
The
Court has cautioned against reliance on the absence of media reports of an
event as a failure to produce corroborating evidence. In the absence of
evidence or a reasonable basis to believe that an event would be normally
reported in the media, the absence of a media report is proof of nothing and a
negative credibility inference is, in this context, based on pure speculation: Xu
et al v Minister of Citizenship and Immigration, March 4,
2011, IMM-4394-10; Argueta v Canada (Citizenship and Immigration), 2011
FC 1146; and Ahortor
v Canada (Minister of Employment and Immigration), [1993]
FCJ No 705.
[16]
Similarly,
the Board noted that the applicant did not provide evidence to corroborate his
testimony that he is a member of All Burma Monks Alliance. The letter he
provided referred to the International Burmese Monks Organization and the Burma
Buddhist Association of Ontario.
[17]
I
cannot see the significance of this discrepancy. There is ample evidence that
the applicant is a member of national and international umbrella Buddhist
organizations in Canada. He provided donation receipts and letters from the
Burma Buddhist Association of Ontario and photos of himself with monks. The
significance of the difference, if any, between All Burma Monks Alliance and the
International Burmese Monks Organization is not material to the issues before
the Board.
[18]
Additionally,
the applicant submits that the Board ignored two relevant pieces of evidence:
documentary evidence relating to his fundraising in Taiwan and evidence that
his father was arrested.
[19]
The
Board accepted that the applicant participated in fundraising. Therefore, the
Board is not required to detail the evidence on this point.
[20]
In
my view, the second omission is significant. As noted, the Board did not find
that the applicant lacked credibility generally. The Board believed certain
elements of his claim. Therefore, the Board was required to consider the
applicant’s allegations that Burmese authorities visited his home on February
2, 1011, April 11, 2011, May 25, 2011 and September 5, 2011. He claims that
his father had to go with the police officers some days, and was detained
several times, most recently from July 18, 2011 to July 20, 2011.
[21]
The
respondent correctly notes that the Board referred to this claim when reciting
the applicant’s allegation. However, it is not referred to at any point in the
Board’s analysis. If believed, the allegation could demonstrate that the
applicant is wanted by Burmese authorities. As such, it is unreasonable for
the Board to neglect to consider it.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board for
reconsideration before a different member of the Board’s Refugee Protection
Division. There is no question for certification.
"Donald J.
Rennie"
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