Date: 20081202
Docket:
IMM-47-08
Citation:
2008 FC 1342
Ottawa, Ontario, December 2,
2008
PRESENT: The Honourable
Mr. Justice Blanchard
BETWEEN:
SAM
OR PHAN
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the panel), dated November 19,
2007, determining that the applicant is not a “refugee” pursuant to section 96
of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the IRPA), or a “person in need of protection” within the
meaning of section 97 of the IRPA. The application was made under
subsection 72(1) of the IRPA.
II. Factual background
[2]
The
applicant is a 63-year-old citizen of Cambodia. She has been widowed
since 1977 and claims to have lost her husband at the hands of Pol Pot
henchmen. She has four children, two of whom are Canadian citizens and live in Canada. The other
two live in Cambodia.
[3]
The
applicant was a French teacher and administrative official with the Department
of Education in Phnom Penh, until she retired in 2005, after which she
continued to work at the French cultural centre in Phnom Penh.
[4]
The
applicant became a member of the Sam Rainsy Party, an opposition party, in
1997. She opposed corruption and the lack of democracy in the country led by
the Cambodian People’s Party – the CPP. She became more active in the Sam
Rainsy Party several months before her retirement in 2005. She states that
her activities consisted of distributing books to local communities, school
supplies to students and food to labourers’ families and to the needy. She also
claims to have been involved in the preliminary meetings of the community
elections scheduled for April 2007. She attended all the propaganda work
meetings. In her personal information form (PIF), she wrote that since 1997, [translation] “I worked to
promote the awareness of and to instill democratic ideas regarding the rights
and duties of citizens of democratic countries, in the spirit of people of my
neighbourhood, particularly the young people.”
[5]
The
applicant alleges that her activities did not go unnoticed by CPP officials.
She testified that officials from different ministries attended the course that
she was giving at the French cultural centre. In this course she talked about [translation] “the
country’s current affairs.” She said that she also talked about political
statements [translation] “sometimes
two or three minutes before the class . …”
[6]
In
her PIF, the applicant wrote that on September 14, 2005, she was threatened by
CPP officials, who told her to stop working for the opposition party. However,
in her testimony, she says that she was threatened on the telephone and [translation] “by the
sound of the voice, by the tone of the voice” she figured out that the threats
were made by CPP officials.
[7]
The
applicant stated that there was gunfire in the direction of her home in
November 2005. She also said that she was attacked in July 2006. During
that attack, her attackers insulted her, telling her: [translation] “Old woman,
shut up if you want to live.”
[8]
The
applicant, fearing a violent death like that of her late husband, decided to
leave the country. As she already had a Canadian visa to visit her daughters,
she came to Canada on August 6, 2006, and filed her refugee claim on
September 14, 2006, claiming refugee status on the basis of her political
activities with the Sam Rainsy Party.
III. Impugned decision
[9]
The
panel determined that the applicant was not a Convention refugee or a person in
need of protection. This is a summary of the panel’s decision dated November 19, 2007:
- The
panel does not believe that the applicant, on a balance of probabilities,
provided credible or trustworthy evidence supporting the existence of a
connection between the problems she experienced in her country and her
political activities;
- the
applicant is merely a member of the Sam Rainsy Party, and she only became
active in 2003;
- the
activities that she led seemed to be largely community-based, and she was
never hindered from carrying out any of her political activities;
- apart
from her book distribution, the applicant’s only other activities amounted
to sharing her thoughts and reflections with her students at the French
cultural centre;
- the
incidents the applicant refers to appear to be tied to anonymous persons
and since the applicant herself has no evidence establishing that these
incidents were connected to alleged involvement in political activities,
the panel determined that the applicant had been the victim of crime or
criminal activities;
- the
documentary evidence, while it refers to attacks against representatives
of the Sam Rainsy Party, seems to emphasize the fact that the attacks are connected
to actual political activities in the course of electoral campaigns. The
applicant never participated in such a campaign; and
- finally,
the fact that the applicant was able to travel outside the country on many
occasions while she was a member of the Sam Rainsy Party establishes that
she was not considered a threat to the party in power.
IV. Issue
[10]
Did
the panel err in determining that there was no connection between the
persecution suffered by the applicant and her political activities?
V. Standard of review
[11]
The
determination that there was no connection between the attacks and the
applicant’s political activities bears on a question of fact. The case law is
consistent that the appropriate standard for such determinations is that of
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, 1
S.C.R. 190 at paragraph 51).
[12]
The
reasonableness of a decision is concerned “mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law,” Dunsmuir v. New
Brunswick,
2008 SCC 9 at paragraph 47.
VI. Analysis
[13]
The
panel determined that there was no connection between the persecution suffered
by the applicant and her political activities. This was a determinative finding
of the panel.
[14]
The
panel acknowledges that the documentary evidence refers to attacks against
representatives of the Sam Rainsy Party and specifically those connected with
true political activities. The applicant’s political activities, summarized
above, were not challenged by the panel. Her membership in the Sam Rainsy Party
was not, either. However, the panel determined that the alleged threats and
physical attack against the applicant were the product of criminal activity and
not related to the applicant’s political activities.
[15]
The
panel did not refer at all to the applicant’s credibility. We must therefore
presume that the applicant’s credibility was not questioned by the panel. In
this case, according to the applicant’s testimony, the alleged threats
explicitly referred to her political activities. I refer to certain relevant
passages from her testimony at the hearing before the panel:
(a) At
page 155 of the tribunal record:
[translation]
Q. Was this the
first. . . the only time that you had trouble in your country?
A. It was the
second time, but the first time was in . . . was in September,
yes, but that, that was just the verbal threat, then on the telephone.
Q. By whom?
A. The sound of
the voice, the tone of the voice, I deduced that they were
. . . they were CPP officials, i.e. people who . . .
Q. Was . . .
A. . . .
from the party of the Cambodian people.
Q. Okay, but what
was the message?
A. The message
was: “Old woman, mind your own business, drink at the pagoda instead
of . . .,” because in my country, people, especially people my
age . . . people my age, 60, 55 years old like that . . .
- Um-hum.
A. . . .
you drink at the pagoda to say your prayers, something like that.
(b) at page 160 of the
tribunal record:
[translation]
Q. Okay, so, can
you tell me what is happening, what happened in July?
A. Yes. In July,
on July 19, yes it was July 19. When I went home, it was . . .
that day then I thought that it was a bad day for me, my son had trouble, he
could not come to pick me up and I took a moto-taxi, right, a moto-taxi there
and we arrived nearby my home.
So, about
400, 500 metres from my home, there were two motorbikes approaching me and. . .
the one that was in a group, he gave me . . . he punched me here
from behind.
- Um-hum.
A. Insulting me,
saying: “Old woman, shut your mouth if you want to live.” So, I fell to the
ground, but before falling, I had the . . . by reflex I put my arm like this.
- Um-hum.
A. Yes and then I
fell into the road and there. Along my body here, this part and this part . . .
- Okay.
A. . . .
it was very painful and then, I was brought home.
[16]
Also,
in the personal information form, the applicant had already explained the
source of the threats she had experienced. She wrote the following in the PIF:
[translation]
I was threatened several times
by the people from the party that is now in power in Cambodia, i.e. the “Cambodian People’s Party” and
that was because of my activities as a member of the “Sam Rainsy Party” with my
students and the inhabitants.
[17]
The
panel’s finding to the effect that the threats and physical attacks allegedly
made against the applicant were the result of criminal activity is speculative.
There is no tangible evidence to this effect. Indeed, the applicant’s
testimonial evidence is to the effect that these threats and the attack are connected
to her political activities. Although she was unable to identify her attackers,
she testified that they expressly told her to be quiet if she valued her life.
This evidence is inconsistent with the panel’s finding. Although the panel was
entitled to reject this testimony of the applicant, considering the relevance
and the importance of this evidence in the context of the refugee claim, and
that the panel did not impugn the applicant’s credibility, it had to
specifically address this evidence and explain why it was not accepted. This
was not done. I have no choice but to find that the panel failed to consider
this evidence of the applicant on an essential point of her claim, Cepeda‑Gutierrez
v. Canada (M.C.I.), [1998]
F.C.J. No. 1425 (Lexis) at paragraph 17. The panel therefore
made its decision without taking into account the evidence before it. This
omission amounts to a reviewable error.
VII.
Conclusion
[18]
For
these reasons, the application for judicial review will be allowed. The matter
will be referred for reconsideration by a differently constituted panel in
accordance with these reasons.
[19]
The parties did not propose a serious question
of general importance for certification as contemplated by paragraph 74(d)
of the IRPA. I am satisfied that such a question is not raised in this matter.
Therefore, no question will be certified.
JUDGMENT
THE
COURT ORDERS AND DECIDES that:
1. The application for judicial review be allowed.
The matter shall be referred for reconsideration by a differently constituted
panel in accordance with these reasons.
2. No
serious question of general importance is certified.
“Edmond P. Blanchard”
Certified true
translation
Kelley A. Harvey, BCL,
LLB
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