Date: 20080328
Docket: IMM-1248-08
Citation: 2008
FC 398
Ottawa, Ontario, March 28, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
KO
KO WIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
The Pre-Removal
Risk Assessment (PRRA) Officer accepted that the Burmese Junta violently
oppresses those it believes are its opponents. The country documentation also
clearly supports this fact. The Applicant protested in a very public manner outside
the Consulate of an ally of Burma,
with a placard and in a group actively condemning the crimes committed by the
Burmese regime. The photographs submitted by the Applicant attest to this
public demonstration. Given the public nature of this protest, a fact not in
dispute, it was unreasonable for the PRRA Officer to decide that the Burmese Junta
would not become aware of it. In addition, the PRRA Officer erred in applying a
standard of certainty to this issue. He stated: “However, these photos, by themselves,
were not found to be sufficient evidence to establish that he had attracted
attention of the authorities of Myanmar and would be subjected to persecution or
mistreatment…” (Emphasis added.) (PRRA Decision, pp. 4-5.)
[2]
The
standard to be used in assessing evidence relating to a sur place claim
is likelihood, or balance of probabilities. The PRRA Officer ought to have
asked himself whether, given the public nature of the Applicant’s
demonstrations against the government of Burma, it was likely to come to the attention of the
Burmese government. The PRRA Officer did not apply this standard and thereby
erred in law.
II. Background
[3]
The
Applicant, Mr. Ko Ko Win, was born on February 16, 1966, in Rangoon Burma, and is a citizen of Burma and of no other country.
[4]
The
Applicant left Burma on August 5, 2002. The
purpose of his travel to Canada was to visit his mother who was in Canada and was ill. The
Applicant has a wife, Ms. Aye Aye Myat and four children in Burma. Three of his children
are adopted and one is his biological child. Their names are Thura Phyo Aung,
Chit Phyo Lin, Chan Phyo Lin and Shun Le Snow, and ages are respectively, 20,
18, 18 and 5. They reside in Rangoon. The Applicant is in regular contact with them over the
telephone – some three times per week. He also sends money back for them. He
sends this money through an agent in Toronto who then arranges for it to reach his family in
Burma.
[5]
The Immigration
Refugee Board (Board) rejected the Applicant’s claim in a decision, dated
October 8, 2004. The basis for the claim was the determination that the
Applicant was not credible. The Board, held:
I
had numerous credibility concerns that were not resolved in the claimant’s
favour. The deficiencies in his evidence were more than sufficient to rebut the
presumption of truthfulness on his part.
(Board
Decision, p. 4.)
[6]
The
Board recognized that the Applicant was making a sur place claim, which
was based on the attendance at his residence, in Rangoon, of military
intelligence after he was already in Canada. The Applicant alleges that, because of his
association with an opponent of the Burmese military Junta, he was subsequently
the subject of inquiries by police.
[7]
Following
the military attacks against the monks and other anti government dissidents in Burma, in 2007, the Applicant
participated in demonstrations in Toronto condemning the actions of the Burmese
government. He participated in two rallies in Toronto outside the Chinese Consulate. Burma does
not have a Consulate in Toronto. China is a close supporter of
the Burmese regime. The demonstrations were considered large, including
coverage by City TV. The Applicant later saw clips of the demonstrations on
television and saw himself in those clips. The Applicant is at risk from these
photos and news reports, which is why he finally decided to submit the photos
to the PRRA Officer. (Motion Record, pp. 6, 113-116.)
[8]
In
the photos, the Applicant is holding a placard in the photos which says “The
people united will never be defeated.” (Motion Record, above.)
[9]
The
Burmese Student Organization in Canada is comprised of former Burmese university and
high school students who had escaped Burma following the riots of 1988 and lived along the
Burmese and Thai border for many years. They are involved in raising awareness
in Canada for the crimes of the
Burmese Junta. It was with this organization that the Applicant participated in
the demonstrations, in September 2007. The Applicant continues to be active
with this group. On March 27, 2008, a demonstration was scheduled to take place
at Toronto City Hall. The
Applicant is actively involved in this process, distributing information in
regard to planned demonstrations of dissent. This will be the six month
anniversary of the killings of the Monks in Burma. Canadian politicians are also participating
and will be present on that day. (Motion Record, pp. 6, 7.)
[10]
The
Applicant’s removal from Canada to Burma has now been scheduled
for Saturday, March 29, 2008.
[11]
The
Applicant is afraid of returning to Burma. The military regime has brutally abused anyone
perceived to be against them. His participation in the demonstrations in Toronto will, in all likelihood,
reach the regime. It is believed, by the Burmese community in Canada, that the Burmese
government has informers amongst them. In addition, newspapers and television
newscasts are monitored. The Applicant believes that, upon his forced return to
Burma, he will be interrogated and subjected to torture for the purpose of
eliciting information about dissidents in Canada.
The
PRRA decision
[12]
The
PRRA Officer made the following findings:
The
PRRA is a mechanism designed mainly for an applicant to present evidence
regarding new risk development either in terms of changes in his personal
circumstances or changes in the general country conditions in his home country
since the IRB’s rejection of his refugee claim, or evidence that was not
reasonably available to or could not be reasonably expected from him at the
time of the rejection, rather than to appeal the IRB’s decision or to request
to have his claim reassessed.
[13]
The
Applicant did not tender sufficient new evidence that, as defined above, would
lead the PRRA Officer to conclude differently from the Board:
The
base for the applicant’s PRRA application, however, was found to be the same as
the ground for his refugee claim and, therefore, was already reviewed by the IRB
panel.
…
The
applicant tendered in his PRRA application an English translation of a summons,
the original of which was attached to his H&C application. Although the
summons was issued on May 12, 2005, the document was not considered new
evidence as defined earlier for the following reasons.
[14]
The
PRRA Officer held that this summons was related to the same incident, already
reviewed by the Board, which found the Applicant generally lacking in
credibility and, specifically, that he fabricated the evidence that the
military intelligence is looking to arrest him to bolster his claim. Given this
finding, the PRRA Officer then decided that the summons, issued in May 2005, did
not constitute “new evidence and would not be further assessed”. (Emphasis
added.)
[15]
The
PRRA Officer then considered the photos tendered depicting the Applicant
protesting outside the Chinese Consulate in Toronto against the Burmese regime. He then found
that the photos, by themselves, constituted insufficient evidence that the
Applicant had attracted attention of the authorities of Myanmar and would be subjected
to persecution or mistreatment.
III. Issue
[16]
Does
the Applicant meet the tripartite test enunciated in Toth v. Canada (Minister of Employment and
Immigration)
(1988), 86 N.R. 302 (F.C.A ), that is, has the Applicant demonstrated:
a) a serious issue to be
tried;
b) irreparable harm; and
c) the balance of
convenience favours the Applicant.
IV. Analysis
Serious Issue
[17]
In Jaouadi
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 587, [2006] F.C.J. No. 753 (QL),
Justice Sean Harrington, stated the following with respect to establishing a
serious issue at the injunction level:
[10] Messrs. Justices Sopinka and
Cory writing for the Court in RJR-MacDonald said at page 348:
At the first stage, an applicant for
interlocutory relief (...) must demonstrate a serious question to be tried.
Whether the test has been satisfied should be determined by a motions judge on
the basis of common sense and an extremely limited review of the case on the
merits.
[11] Meeting the non-frivolous,
non-vexatious test is less onerous than meeting the test for leave in an
application for judicial review which requires a fairly arguable case (Bains
v. Canada (Minister of Citizenship and Immigration) (1990), 109 N.R. 239), and much lower than the onus in a judicial review on the
merits which is based on the balance of probabilities.
Issue 1: Did the PRRA Officer apply the wrong test for a
determination of new evidence under s. 113 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA)?
[18]
PRRA
Officers are directed on the evidence they are to consider in section 113(a) of
the IRPA:
|
Consideration of application
113. Consideration of an
application for protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
|
Examen de la demande
113.
Il est disposé de la
demande comme il suit :
a) le demandeur d’asile débouté ne
peut présenter que des éléments de preuve survenus depuis le rejet ou qui
n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il
n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les
ait présentés au moment du rejet;
|
[19]
The
recent decision of this Court in Elezi v. Canada (Minister of
Citizenship and Immigration), 2007 FC 240, [2007] F.C.J. No. 357 (QL), has
considered the issue of new evidence and ss. 113(a). In that case the
PRRA Officer concluded that he would not consider twenty of the thirty
documents because they were not “new evidence” under ss. 113(a) of the
IRPA. In considering this decision, the Court held that the standard to be
applied in determining whether the officer erred in interpreting the section
itself was one of correctness.
[20]
In
assessing the meaning of ss. 113(a) the Court, in Elezi, above,
agreed that it was to be read disjunctively as contemplating three distinct
scenarios.
[26] I am prepared to
accept that subsection 113(a) refers to three distinct possibilities and
that its three parts must be read disjunctively… As for evidence that arises
after the Board's decision, there is no need for an explanation. The mere fact
that it did not exist at the time the decision was reached is sufficient to
establish that it could not have been presented earlier to the Board.
[21]
The
Court did limit the range of what constitutes new evidence and rejected the
argument that, merely because the evidence dated after the hearing, it can be
considered new. The Court reviewed the case law in the area and held:
[27] …the case law has insisted that new
evidence relate to new developments, either in country conditions or in the
applicant's personal situation, instead of focusing on the date the evidence
was produced…
[22]
In
reviewing the evidence and finding it probative and of a nature which refuted
the Board’s conclusions, the Court, in Elezi, accepted that the evidence
was new and rejected the argument that evidence had to disclose new risks, per
se, to qualify as admissible:
[38] …Had he submitted this
evidence at his Board hearing, the Board may well have written a very different
decision. Yet, these documents do not raise any "new" risks, per se. The risks outlined were the same as those Mr. Elezi claimed during his hearing
before the Board. Was it then reasonable for the PRRA officer to exclude all
these documents on that basis? In my opinion, no.
[23]
In
the recent decision of this Court in Mendez v. Canada (Minister of
Citizenship and Immigration), 2005 FC 111, [2005] F.C.J. No. 115(QL), the
Court quashed a PRRA Officer’s decision on the grounds that the Officer had
erred in deciding that a letter that had post-dated the Board’s decision was
not new evidence. The Court stated:
[17] As I expressed during the hearing of the present
application, in my opinion, the PRRA Officer made an error in the application
of s.113(a) with regard to the letter signed by Mr. Flores. Section 113(a)
requires a careful determination on the admissibility of evidence on three
available grounds. In my opinion, precision is required in making a finding
under this provision since important ramifications follow on the determination
of the risk to be experienced by an individual applicant. In my opinion, the
PRRA Officer failed to meet this expectation.
[18] Mr. Flores' letter of March 17, 2004 clearly
post-dates the Refugee Board's decision in the present case. It appears that
the PRRA Officer failed to understand this fact by lumping it in with the
tendered evidence which pre-dates the Refugee Board's decision…
[24]
The
Federal Court of Appeal recently pronounced on the meaning of new evidence in Raza
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 111, [2005] F.C.J. No. 115 (QL):
[13] As I read paragraph 113(a),
it is based on the premise that a negative refugee determination by the RPD
must be respected by the PRRA officer, unless there is new evidence of facts
that might have affected the outcome of the RPD hearing if the evidence had
been presented to the RPD. Paragraph 113(a) asks a number of questions,
some expressly and some by necessary implication, about the proposed new
evidence. I summarize those questions as follows:
1. Credibility: Is the evidence credible, considering its source and the
circumstances in which it came into existence? If not, the evidence need not be
considered.
2. Relevance:
Is the evidence relevant to the PRRA application, in the sense that it is
capable of proving or disproving a fact that is relevant to the claim for
protection? If not, the evidence need not be considered.
3. Newness:
Is the evidence new in the sense that it is capable of:
(a) proving the
current state of affairs in the country of removal or an event that occurred or
a circumstance that arose after the hearing in the RPD, or
(b) proving a
fact that was unknown to the refugee claimant at the time of the RPD hearing,
or
(c)
contradicting a finding of fact by the RPD (including a credibility finding)?
If not, the evidence
need not be considered.
4. Materiality:
Is the evidence material, in the sense that the refugee claim probably would
have succeeded if the evidence had been made available to the RPD? If not, the
evidence need not be considered.
5. Express
statutory conditions:
(a) If the
evidence is capable of proving only an event that occurred or circumstances
that arose prior to the RPD hearing, then has the applicant established either
that the evidence was not reasonably available to him or her for presentation
at the RPD hearing, or that he or she could not reasonably have been expected
in the circumstances to have presented the evidence at the RPD hearing? If not,
the evidence need not be considered.
(b) If the evidence is capable of
proving an event that occurred or circumstances that arose after the RPD
hearing, then the evidence must be considered (unless it is rejected because it
is not credible, not relevant, not new or not material).
[25]
The Court
of Appeal further held that the evidence cannot be rejected merely because it
addresses the same risk issue considered by the Board. The Court added,
however, that a PRRA Officer may properly reject such evidence if it cannot
prove the relevant facts as of the date of the PRRA application are materially
different from the facts as found by the Board. (Raza, above.)
[26]
In
the case at bar, the PRRA Officer did not undertake an analysis of credibility,
relevance newness or materiality with respect to the police summons issued for
the Applicant, in May 2005, following the hearing and decision in his refugee
case. The PRRA Officer stated that the summons, dated May 2005, would not be
assessed further as it was not new evidence because the alleged grounds for the
summons had already been assessed by the Board. The failure of the PRRA Officer
to assess the summons is an error. This summons is evidence of a fact which
allegedly occurred in May 2005, that being that the police had appeared at the
Applicant’s residence in Rangoon on a date after the Board in Canada had already considered
and rejected his claim. This evidence was, therefore, evidence of a new fact
which arose after the hearing and fits within the criteria as set out by the Federal
Court of Appeal in Raza, above. It falls within ss. 5(b) above ion that
it is evidence of an event which occurred after the hearing. Once admitted and
considered, it was open to the PRRA Officer to accord whatever weight he believed
appropriate to the summons; however, to completely disregard it, because it was
not considered new evidence, is an error in law.
Issue 2: Did the PRRA Officer err in his assessment of evidence
that the Applicant was a refugee sur place?
[27]
A
refugee sur place is defined in the literature:
The
Convention refugee definition does not distinguish between persons who flee
their country in order to avoid the prospect of persecution and those who,
while already abroad, determine that they cannot or will not return by reason
of the risk of persecution in their state of nationality or origin…
In
addition to claims grounded in either new circumstances or a dramatic
intensification of pre-existing conditions in the country of origin, a sur
place claim to refugee status may also be based on the activities of the
refugee claimant since leaving her country. International law recognizes that
if while abroad an individual expresses views or engages in activities which
jeopardize the possibility of safe return to her state, she may be considered a
Convention refugee. The key issues are whether the activities abroad are likely
to have come to the attention of the authorities in the claimant’s country of
origin….
(The Law of
Refugee Status, James Hathaway, Butterworths, 1991.)
[28]
The
standard to be applied by the Board in assessing sur place claims has
been stated by the Federal Court, in Ejtehadian v. Canada (Minister of
Citizenship and Immigration), 2007 FC 158, [2007] FCJ No. 214 (QL). Justice
Edmond Blanchard held:
[11] The IRB's
articulation of the test in a sur-place claim is
incorrect. In a refugee sur-place claim,
credible evidence of a claimant's activities while in Canada that are likely to
substantiate any potential harm upon return must be expressly considered by the
IRB even if the motivation behind the activities is non-genuine:
[29]
The
PRRA Officer accepted that the Burmese Junta violently oppresses those it
believes are its opponents. The country documentation also clearly supports
this fact. The Applicant protested in a very public manner outside the Consulate
of an ally of Burma, with a placard and in
a group actively condemning the crimes committed by the Burmese regime. The
photographs submitted by the Applicant attest to this public demonstration. Given
the public nature of this protest, a fact not in dispute, it was unreasonable
for the PRRA Officer to decide that the Burmese Junta would not become aware of
it. In addition, the PRRA Officer erred in applying a standard of certainty to
this issue. He stated: “However, these photos, by themselves, were not found to
be sufficient evidence to establish that he had attracted attention of
the authorities of Myanmar and would be
subjected to persecution or mistreatment…” (Emphasis added.) (Reasons, pp. 4-5.)
[30]
The
standard to be applied in assessing evidence relating to a sur place
claim is likelihood, or balance of probabilities. The PRRA Officer ought to
have asked himself whether, given the public nature of the Applicant’s
demonstrations against the government of Burma, it was likely to come to the attention of the
Burmese government. The PRRA Officer did not apply this standard and thereby
erred in law.
Issue Three: Standard of Review
[31]
In light of the Supreme Court of Canada decision in Dunsmuir
v. New Brunswick, 2008 SCC 8, the standard of review of a decision
of a PRRA Officer, is correctness, and on findings of fact, reasonableness. The
standard of patent unreasonableness is no longer of application.
Irreparable
harm
[32]
Irreparable
harm can be established when the Applicant can show that the potential harm is
irreparable and not compensable in damages. (Toth, above.)
[33]
Where
an Applicant would
face some risk of serious mistreatment, the extent of which has yet to be
evaluated, on return to his country, these circumstances amount to irreparable
harm. (Monemi v. Canada (Solicitor General), [2005] F.C.J. No. 10
(QL), by Justice James O’Reilly.)
[34]
The
Applicant has demonstrated that he faces a risk of serious mistreatment if
returned to Burma, including
the risk of torture and death. This mistreatment would not be compensable in
damages. This amounts to irreparable harm.
[35]
In
the enclosed opinion from Mr. Paul Copeland, noted advocate and authority of
human rights in Burma, writes:
I am aware that Ko Ko Win attended
demonstrations in front of the Chinese Consulate in Toronto. I helped organize those demonstrations
and other demonstrations in Toronto against the brutal crackdown against the
pro-democracy demonstrators in Burma.
Case law from the United Kingdom, as well
as reports from Burma are to the effect that persons who are returned to Burma
after making a refugee claim in another country are frequently subject to
imprisonment and mistreatment.
(Motion
Record, pp. 176.)
[36]
It
is the Court’s determination that Mr. Ko Ko Win is at most significant imminent
risk of imprisonment, mistreatment and torture if returned to Burma.
[37]
The
human rights reports on Burma indicate that failed
asylum seekers returned to Burma are at risk of
imprisonment, and any dissent is treated harshly including lengthy imprisonment
and torture.
[38]
The
Applicant is at risk of severe mistreatment upon his return to Burma, including
possible imprisonment and torture. This arises because of his protest against
the Burmese Junta and because he is a failed refugee claimant.
[39]
In
addition, if the Applicant is deported before this Court considers the
outstanding leave application, this application will be rendered moot. The
outcome would most significantly constitute irreparable harm to life and limb.
Balance of
Convenience
[40]
As
the Applicant has demonstrated that there is a serious issue in the within
application and has also demonstrated irreparable harm, the balance of
convenience lies in his favour. (Membreno-Garcia v. Canada (Minister of
Employment and Immigration), (1992), 17 Imm. L.R. (2d) 291, at 295, by
Justice Barbara Reed.)
[41]
While
the Respondents have an obligation to expel persons who are subject to a valid
removal order, this duty is superceded by legitimate concerns for human safety. (Monemi, above.)
VII. Conclusion
[42]
The Applicant
has met all three branches of the Toth test, the execution of his
removal is stayed pending the final disposition of the Applicant’s PRRA
application.
ORDER
THIS COURT ORDERS that the Applicant has met all
three branches of the Toth test, the execution of his removal be stayed pending
the final disposition of the Applicant’s PRRA application.
“Michel M.J. Shore”
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