Date: 20070430
Docket: IMM-2251-06
Citation: 2007 FC 461
Ottawa, Ontario, April 30,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
THAN SOE
(a.k.a. YE
YINT and THIT LWIN)
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY
PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Than
Soe was found to be inadmissible because he had engaged in a terrorist
activity, specifically the hijacking of an aircraft from Myanmar (Burma) to Thailand as part of a
protest against the regime in Myanmar. His application under
s. 34(2) of the Immigration and Refugee Protection Act (Act) to the
Respondent Minister, Minister of Public Safety and Emergency Preparedness, for
relief from this finding was denied because “his presence in Canada clearly
goes against our national interest”.
[2]
The
Applicant seeks judicial review of the Minister’s decision principally on the
grounds that (a) the Minister ignored relevant facts; (b) the Minister’s
reasons for decision failed to address matters set forth in a policy guideline
in respect of applications for relief from s. 34 inadmissibility findings; and
(c) the Minister exercised his discretion on an incorrect basis.
I. BACKGROUND
[3]
In
October 1989 Soe, along with a friend, hijacked an aircraft carrying 80
passengers diverting it from Burma (Myanmar) to Thailand. Soe and his
friend were pro-democracy activists who did the hijacking to draw attention to
the abuses suffered in his country at the hands of a military dictatorship. The
brutality of that regime is a well recognized fact.
[4]
In
March 1990 Soe was convicted in Thailand for the hijacking. He
was sentenced to six years imprisonment but was released after 2½ years.
[5]
In
August 1992, Soe was granted a pardon and amnesty by the Thai government. He
remained in Thailand until 1996.
During this period he was granted “Person of Concern Status” by the UNHCR
indicating that he was likely a refugee under the Convention.
[6]
In
1996 Soe entered the United States as a recipient of a United States
Information Agency Burmese Refugee Scholarship at Indiana State University. Before
coming to the U.S., he disclosed
to American authorities his role in the hijacking.
[7]
Having
entered the U.S., he was,
however, detained twice by U.S. Immigration and Naturalization Service (INS)
officials; firstly, in 1997 for one month and the second time in 2002 for eight
months.
[8]
During
this second detention a judge of the U.S. Immigration Court found that
Soe has established a well-founded fear of persecution and torture if he were
returned to Myanmar (Burma). Despite
this finding and a further finding that Soe was not a security threat to the U.S. or any other
country, the judge was unable to grant asylum because of the hijacking
incident. Soe was released from detention on a bond. A few months later in November
2003 he fled the U.S., breaching his bond, and entered Canada illegally.
[9]
In
December 2003, Soe made a refugee claim but in January 2004 he was found to be
inadmissible pursuant to s. 34(1)(c) of the Act. His admissibility hearing was
adjourned so that he could apply to the Minister for an exemption under s.
34(2).
[10]
On
March 27, 2006, the Minister denied the application. The Minister’s decision
was attached to a “Briefing Note for the Minister”; the two documents were said
to be the decision and reasons for decision respectively.
[11]
The
pertinent statutory provisions are:
|
34. (1)
A permanent resident or a foreign national is inadmissible on security
grounds for
…
(c)
engaging in terrorism;
…
Exception
(2) The
matters referred to in subsection (1) do not constitute inadmissibility in
respect of a permanent resident or a foreign national who satisfies the
Minister that their presence in Canada would not be detrimental to the
national interest.
|
34. (1) Emportent interdiction de
territoire pour raison de sécurité les faits suivants :
…
c) se livrer au terrorisme;
…
Exception
(2)
Ces faits n’emportent pas interdiction de territoire pour le résident
permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne
serait nullement préjudiciable à l’intérêt national.
|
[12]
An
important feature of the Minister’s decision is that unlike a myriad of other
powers and duties of the Minister which may be delegated to some official, a s.
34(2) decision cannot be delegated. It is one of only four provisions in the
Act which must be dealt with by the Minister directly.
[13]
The
Briefing Note, prepared by the President of Canada Border Services Agency,
provided the details of Soe’s case and a recommendation. The Minister then
signed the document which said “Based on my review of the material submitted,
Ministerial relief is … DENIED”.
[14]
The
Briefing Note recommended that Soe not be granted Ministerial relief because Canada should not
harbour individuals who have admitted to committing terrorist acts. The
determinative portion of the Briefing Note is as follows:
Mr.
Soe committed a serious offence that meets the threshold of terrorism.
Fortunately, no violence was used and luckily no one was injured or killed.
People appeared sympathetic to his political statement; however, a threat of
actual bodily harm was apparent from the onset and a negative outcome could
have resulted from his actions. This activity/political statement could have
simply been an act of diverting an airline. However, he and another cohort
planned, executed and forced their way onto a plane carrying 80 passengers and
proceeded to hijack the aircraft. The Canada Border Services Agency (CBSA) is
of the opinion that Mr. Soe did commit a terrorist act. He did hijack a plane
and people could have been injured or killed. This fact cannot be ignored.
Mr.
Soe has been upfront and honest about his hijacking. He presently does not
appear to be a danger to Canadian society; however, his presence in Canada clearly goes against our national interest. Canada should not harbour individuals who have admitted to
committing terrorist acts. Unfortunately, there are no compelling reasons to
grant Mr. Soe refugee protection or permanent resident status in Canada. He is not employed, he has no family in Canada and he entered the country illegally. He is a well educated
individual, but CBSA feels he could request to return to Thailand since he received a pardon and amnesty. Moreover, Mr. Soe’s
common-law spouse is of Thai origin.
II. ANALYSIS
A. Reasons
[15]
The
Applicant had initially raised the issue that the Briefing Note cannot qualify
as the Minister’s reasons since the Note was not that of the Minister. At the
judicial review hearing, the Applicant withdrew this issue in the face of the
authorities of Miller v. Canada (Solicitor General), 2006 FC 912 and of Naeem
v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 173
(QL).
B. Standard
of Review
[16]
Chief
Justice Lutfy in Miller, above, conducted a pragmatic and functional
analysis of s. 34(2) and concluded that in regards to the decision to
grant or deny Ministerial exemption, the standard of review is patent unreasonableness.
This standard is of course dependent on the Minister’s process being in
accordance with fairness and natural justice and the Minister applying the
correct legal test. I adopt this standard of review as has Justice Mactavish in
Al Yamani v. Canada (Public Safety and
Emergency Preparedness), 2007 FC 381.
C. Relevant
Facts
[17]
The
Applicant says that the Minister erred in accepting CBSA’s conclusion that Soe
could request return to Thailand where he had received a
pardon and amnesty and where his common law spouse is a citizen. In particular,
the Applicant says that the Minister failed to consider (or at least failed to
address a key piece of contrary evidence) a UNHCR report.
[18]
Given
that the ability (or assumed ability) of Soe to be returned to Thailand, rather
than Myanmar, is stated as a fact in the Briefing Note, and forms part of the
rationale for the recommendation that the Minister reject the application, it
is evidently an important conclusion in the decision.
[19]
The
Briefing Note makes no reference to an extensive UNHCR opinion which was
contained in the Tribunal Record (provided originally in the context of U.S. proceedings
and accepted in the U.S.). The opinion calls into direct question the
conclusion on Soe’s ability to return to Thailand as well as raising the fear
of persecution upon his return to Myanmar.
[20]
The
UNHCR conclusion is clear, forceful and unchallenged. It concludes in
unequivocal terms that Soe cannot return to Thailand – the
salient part of the opinion is:
It is the opinion of the UNHCR Branch
Office in Thailand that there is virtually no
chance that Thailand would re-admit Mr. Soe. Thailand is not a party to the 1951
Convention or its 1967 Protocol and has no domestic legislation or procedure in
place regarding recognition of refugees. Refugees without valid passports and
visas are considered illegal immigrants and are at risk of arrest and
immigration detention in very poor conditions. There are camps for Burmese
refugees along the Thai-Burmese border, where there are currently around
110,000 refugees; however responsibility for admission to these camps lies with
the Royal Thai Government, which has established a policy of no further formal
admissions. Because Mr. Soe has no valid visa to enter Thailand and cannot gain
formal admission to the existing refugee camp, he is not able to return to Thailand
[21]
As
indicated earlier, the Briefing Note never refers to the UNHCR opinion or even
the substance of the opinion. Soe’s ability to return to Thailand is, after
reference to the terrorism incident, the most frequently referenced
circumstance in the Minister’s reasons.
[22]
It
is a well established principle that while the decision-maker need not refer to
every fact in a case, the failure to refer to critical facts suggests that the
decision-maker made the decision without regard to the evidence before it (see Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425
(QL) and also Tryus v. Canada (Minister of Citizenship and Immigration),
[2004] F.C.J. No. 737 (QL)). As a result, the Minister’s finding cannot stand
up to the standard of review and therefore is patently unreasonable. The
exercise of the Minister’s discretion may well have been different if it was
recognized that the Applicant could not return to Thailand and might
well be forced to go to Myanmar (Burma) where persecution and
torture are an issue.
[23]
There
are other factual issues in the reasons which are contested by the Applicant.
These include the potential for violence, the use of a gun and the existence of
a real bomb. Much of this information came from Myanmar, a place
that the Applicant says is notoriously unreliable. Given the disposition of
this case, nothing further need be said. One can expect the new determination
will carefully review the reliability of this information.
III. APPLICATION
OF GUIDELINES
[24]
Related
to this issue of failure to consider the evidence is the Applicant’s position
that the officer preparing the Briefing Note failed to address issues listed in
the department’s Guidelines.
[25]
The
Citizenship and Immigration Canada department has a Guideline in respect of
Evaluating Inadmissibility, a portion of which addresses the exercise of the
Minister’s discretion in the national interest. The Guidelines give
instructions to officers preparing Ministerial Briefing Notes as to the issues
which should be addressed. These issues are set forth more particularly by a
series of questions which are to be answered.
[26]
The
Applicant argues that the Minister’s decision did not contain any analysis of
the questions in the Guideline and ignored consideration of key issues. Therefore,
the Applicant says, the Minister failed to address the evidence and issues
which are vital to the Applicant’s case.
[27]
The
Guidelines are not law and there is no requirement that a Ministerial Briefing
Note (or reasons for decision) must address each and every question in the
Guideline. The basis of the claim for Ministerial discretion will frame the
relevant questions to be asked. The Guidelines are helpful in assessing whether
the Minister’s decision was an unreasonable exercise of discretion (see Al
Yamani, paragraph 71).
[28]
In
the Certified Tribunal Record of the record which was before the Minister is a
letter from the Applicant’s then counsel dated December 14, 2005 in which
counsel made submissions in respect of some of the issues in the Guidelines.
[29]
While
it is unclear to which Briefing Notes the letter is addressed, the final
Briefing Note being dated three months later, the Applicant outlines his case
in respect of the Guideline questions. In respect of the questions in the
Guidelines, he specifically refers to the question “Has the person adopted the
democratic values of Canadian society?” The Applicant wrote:
This final question, which was not asked
and answered in the CBSA materials, thus apparently not a consideration in
making the recommendation, is perhaps the one most critical to the inquiry. The
evidence …”
[30]
The
final Briefing Note and the one which forms the reasons for decision likewise
neither asked or answered the question nor did it respond to the Applicant’s
position that the question was “the one most critical to this inquiry”.
[31]
However,
like many other aspects of the Applicant’s submissions which found their way
into the Briefing Note analysis one way or the other, the Briefing Note did
refer to the Applicant as a pro-democracy activist. It cannot be said that the
Minister ignored the Applicant’s adoption of democratic values. Their case, on
this specific fact, is distinguishable from the facts in the Al Yamani
case.
[32]
More
problematic is the conclusion that the Minister should not exercise his
discretion because “Canada should not harbour individuals who have
admitted to committing terrorist acts”. Presumably this rationale is also applicable
where the individual denied committing the terrorist act but the evidence
confirms that he did. It is the commission of the terrorist act, not the
admission of commission of the act, which grounds the refusal to exercise the
Ministerial discretion.
[33]
The
Briefing Note goes on to observe that there are no compelling reasons to grant
protection or permanent residence. The factors examined are largely those
related to a close connection to Canadian society, including jobs and family in
the country.
[34]
The
difficulty with this analysis is that it renders the exercise of discretion
meaningless. It is tantamount to saying that an individual who commits an act
described in s. 34(1) cannot secure Ministerial discretion because they
committed the very act that confers jurisdiction on the Minister to exercise
discretion under s. 34(2).
[35]
Quite
apart from this “Catch-22” conclusion, the Minister never adequately explains
why the discretion should not be exercised because the individual committed an
act prescribed by s. 34(1). An applicant is entitled to the real reasons
for the refusal to exercise discretion other than that the person has committed
an act described in s. 34(1).
[36]
Whether
one describes this part of the Minister’s decision as a failure to provide
adequate reasons, a failure to address the proper legal issue or a fettering of
discretion by limiting the scope of the analysis, the Minister’s decision in
this regard cannot be sustained.
IV. CONCLUSION
[37]
For
all these reasons, the application for judicial review is allowed, the
Minister’s decision is quashed and the matter is remitted to the Minister for a
re-determination.
[38]
For
the reasons described in Miller, above, no question will be certified.
JUDGMENT
IT IS ORDERED THAT the
application for judicial review is allowed, the Minister’s decision is quashed
and the matter is remitted to the Minister for a re-determination.
“Michael
L. Phelan”
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