Date: 20091223
Docket: IMM-2548-09
Citation: 2009
FC 1311
Ottawa, Ontario, December 23, 2009
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MUNKHTSETSEG TUMEN ULZII
TEGSHZAYA TUMEN ULZII
UJINGOO TUMEN ULZII
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Gankhugag
Bumuutseren was a double agent. He is a Mongolian who spied for both Mongolia and China. When all came to light, things did not
go well for him. He was jailed in China and apparently tortured before being
deported to Mongolia, where he was also detained.
Fearing that the secret police in Mongolia
were persecuting him, he, his new wife, and their young children, one his and
one hers, came to Canada in order to seek asylum. The
claim as originally filed was based on the husband’s situation. However, he was
deemed inadmissible in virtue of section 34 of the Immigration and Refugee
Protection Act and so his refugee claim was not heard. Section 34(1)(a) of IRPA
provides that a foreign national is inadmissible on security grounds for
engaging in an act of espionage or an act of subversion against a democratic
government, institution or process as they are understood in Canada.
[2]
As a
result, Mr. Bumuutseren’s wife, Munkhtsetseg Tumen Ulzii, became the principal
claimant at the refugee hearing, basing herself on the narrative contained in
her husband’s personal information form.
[3]
She, and
the two children, were held not to be United Nations Convention refugees or
otherwise in need of Canada’s protection. This is a
judicial review of that decision.
[4]
Although
deemed inadmissible, Mr. Bumuutseren was still in Canada at the time of the hearing (and
apparently still is) and testified at the hearing, as did Ms. Tumen Ulzii. The
Panel of the Refugee Protection Division of the Immigration and Refugee Board
which conducted the hearing accepted that Mr. Bumuutseren had serious physical
and emotional health problems.
[5]
The entire
case turns on credibility. The Panel is entitled to deference as long as the
result falls within a range of reasonable articulate, transparent outcomes (Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47). However, one must always keep in
mind the difference between a proper inference drawn from facts, and outright
speculation. A finding based on speculation is in and of itself unreasonable (Canada
(Minister of Employment and Immigration) v. Satiacum (1989), 99 N.R. 171
(F.C.A.)). The Panel dwelt on four issues, home invasions, threatening phone
calls, a failure to claim asylum in Korea and Mr. Bumuutseren’s earlier trip to
Canada during which he did not claim
refugee status, but rather returned to Mongolia to retrieve his wife and children. The Panel’s
findings in this regard led it to conclude that the secret police were not
after them.
[6]
The
husband said there were several instances during the night when their house was
invaded. However in her written statement Ms. Tumen Ulzii made no reference
thereto. Her testimony was that she had no personal knowledge of any invasion.
It was her husband who told her so. When questioned, he said that he had left
ashes on the floor in their home and noticed that they had been disturbed as
had some dishes. He was not questioned extensively in light of medical reports
which indicated that he is still suffering intensely from the effects of his
imprisonment and torture, is extremely afraid of anyone who looks Chinese or
Mongolian, and experiences frequent flashbacks. It was accepted that his mental
state was fragile.
[7]
While the
Panel’s finding that the invasions did not occur was reasonable, it had to keep
in mind that Ms. Tumen Ulzii had never claimed personal knowledge of such
invasions.
[8]
With
respect to threatening phone calls, Ms. Tumen Ulzii testified she had received
a call in which an unidentified male voice said that if her husband did not
return to Mongolia she and the children would be wiped out. There were other
calls in which the caller simply hung up. Given that her phone was supposed to
be an untraceable mobile phone, there was fear that the secret police had
targeted her and the children.
[9]
The Panel
found Ms. Tumen Ulzii was not threatened because she had said in an earlier
written declaration that there had been many threatening phone calls, while in
fact there was but one. I cannot accept this reasoning. In the context of Mr. Bumuutseren’s
past history and the one explicit call, what is the basis for not concluding
that that hang ups were not threatening?
[10]
This led
Mr. Bumuutseren to return from Canada to Mongolia to help facilitate the departure of his
wife and children .He was asked why he returned. He said it was to assist his
wife as she did not know how to get a visa. As Ms. Tumen Ulzii is highly
educated, had been well-traveled and admitted she knew how to obtain a visa,
this explanation was not accepted. She did leave dangling, however, a concern
as to whether she would have been able to obtain a visa for her husband’s
daughter, a point which should have been pursued more thoroughly.
[11]
The Panel
concluded that Mr. Bumuutseren did not fear persecution as otherwise he would
not have returned to Mongolia to aid his wife and children.
While one does not have to be a hero, there is no reason to suggest that Mr. Bumuutseren
was such a coward that he would not come to the aid of his wife and children,
whether objectively they needed it or not.
[12]
En route
to Mexico (they claimed refugee status
when the plane stopped in Canada), they stayed five days in South Korea. The Panel thought they would
have made a claim for protection at the first possible opportunity, and so
doubted subjective fear on their part. However the jurisprudence is
well-established that failure to claim at the very first opportunity is not in
and of itself determinative. In this case they were already safe, in the sense
of being out of Mongolia, and were en route to Canada, where Mr. Bumuutseren had
already laid the groundwork.
[13]
All this
led the Panel to believe that the secret police were not pursing the
applicants. The family was able to obtain a letter from the Mongolian Ministry
of Health and Social Welfare to facilitate Canadian visitors’ visas. The family
did not need exit visas to leave Mongolia,
and no reference was made to country conditions to suggest that the secret
services’ tentacles were as widespread and efficient as the Panel apparently
thought.
[14]
In
conclusion, and taking into account Mr. Bumuutseren’s entire history, and Ms.
Tumen Ulzii’s personal testimony which rather than an embellishment upon her
husband’s was actually more muted, I find that the decision was unreasonable.
ORDER
FOR REASONS GIVEN;
THIS COURT ORDERS that
1.
This
application for judicial review is granted.
2.
The
Board’s decision is set aside.
3.
The matter
is referred back to the Immigration and Refugee Protection Board for a fresh
determination by a new Panel.
4.
There is
no serious question of general importance to certify.
“Sean Harrington”
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