Date: 20081010
Docket: IMM-1248-08
Citation: 2008
FC 1154
Ottawa, Ontario, October 10, 2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
KO
KO WIN
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of a decision rendered on February 4, 2008 by G.
Wang, a Pre-Removal Risk Assessment Officer (the PRRA Officer), which rejected
the applicant’s Pre-Removal Risk Assessment (PRRA) application on the grounds
that he would not be subject to risk of persecution, torture, risk to life or
risk of cruel and unusual treatment or punishment if returned to his country of
nationality or habitual residence, in this case, Myanmar (the impugned
decision).
[2]
In granting
the stay of removal in the within case, Justice Shore provided extensive reasons (Win
v. Canada (Minister of Citizenship and
Immigration),
[2008] F.C.J. No. 542, 2008 FC 398). The Applicant now invites the Court to
follow Justice Shore’s reasoning and conclude
that:
- The PRRA Officer failed to undertake
a proper 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; and
- The PRRA Officer arbitrarily
discarded the new evidence tendered by the applicant relating to a sur
place claim as a result of the applicant’s participation in
anti-Myanmar government rallies that took place in the aftermath of the
government crackdown on the Buddhist monks in September and October 2007.
[3]
The
grounds of review raised by the applicant are both well founded. Indeed, the
above-mentioned errors are determinative and authorize the Application Judge to
set aside the impugned decision and to refer the matter back for
redetermination. While not bound by reasons issued by the Motion Judge in the
course of ascertaining whether a serious issue is raised, and having had the
benefit of reading the whole record and of hearing full arguments by the
parties, I feel comfortable today endorsing Justice Shore’s general
comments and reasoning. Accordingly, I will allow the present application.
[4]
For the
purposes of paragraph 113 (a) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), as this provision has been recently
interpreted by this Court and the Federal Court of Appeal, a PRRA Officer should
ask itself a number of questions when assessing evidence that is being
proffered as being “new”.
[5]
Despite
the contrary suggestion made at the hearing by the respondent’s able counsel, I
am unable to find in the impugned decision rendered by the PRRA Officer, any
clear indication or rationale permitting me to infer that the PRRA Officer
applied or even considered the test developed by the Federal Court of Appeal in
Raza v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 1632, 2007 FCA 385 (Raza).
[6]
The
relevant questions have been summarized as follows at paragraph 13:
[…]
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).
[7]
It
is not suggested by the Federal Court of Appeal that the questions listed above
must be asked in any particular order, or that in every case the PRRA Officer
must ask each question: “What is important is that the PRRA officer must
consider all evidence that is presented, unless it is excluded on one of the
grounds stated (…) above” (Raza, at para. 15). In the case at bar, the
PRRA Officer peremptorily decided that the summons dated May 2005 (the new
summons), did not qualify as “new evidence” because the alleged grounds for the
new summons had already been assessed by the Immigration and Refugee Board,
Refugee Protection Division (the RPD).
[8]
However,
the new summons was 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 RPD
in Canada had already considered
and rejected his claim. This evidence was therefore “new in the sense that it
is capable of (…) proving (…) an event that occurred or a circumstance that
arose after the hearing in the RPD, or (…) contradicting a finding of fact by
the RPD (including a credibility finding)” (third question mentioned in Raza).
Thus, as stated in Raza, “ 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)” (fifth question, paragraph (b) of Raza).
That said, it was open to the PRRA Officer to accord whatever weight he
believed appropriate to the new summons; however to completely disregard it
because it was not “new evidence” is a reviewable error in this case.
[9]
It
is not the role of this Court, in a judicial review application, to reweigh the
evidence if it otherwise appears that the PRRA Officer misunderstood or failed
to properly apply the applicable test under paragraph 113 (a) of the Act. Indeed,
the Application Judge should not assess the evidence on record in order to
answer relevant questions which have been left unanswered by the PRRA Officer
(such as credibility). To do so would be to second guess the PRRA Officer and
usurp the role of this very specialized body. Moreover, I am not satisfied that
this is an instance where the Application Judge should exercise its judicial
discretion not to set aside a decision because it is likely that a new
redetermination or hearing before a different PRRA Officer could only result
again in the dismissal of the PRRA application made by the applicant (see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board,
[1994] 1 S.C.R. 202). This is so because I have also found that the
PRRA Officer arbitrarily discarded other new evidence tendered by the applicant
and which directly relates to his refugee sur place claim.
[10]
With
respect to the refugee sur place claim made by the applicant, credible
evidence of the applicant’s political activities while in Canada that are
likely to substantiate any potential harm upon return in Myanmar, must be
expressly considered even if the motivation behind these activities may be
non-genuine (Ejtehadian v. Canada
(Minister of Citizenship and
Immigration), [2007] F.C.J. No. 214, 2007 FC 158 (QL) at para. 11). The standard to be used
in assessing evidence related to a sur place claim is likelihood, or
balance of probabilities (and not certainty, as implied by the PRRA Officer in
the impugned decision) (Win
v. Canada (Minister of Citizenship and
Immigration),
[2008] F.C.J. No. 542 at paras. 2, 29 and 30, 2008 FC 398).
[11]
In this regard, I note that the PRRA Officer accepted, as a fact,
that the applicant, since his arrival to Canada and after the hearing of the
RPD, participated in large public demonstrations against the Myanmar
government (which were repeated in numerous cities around the world). Those
demonstrations took place in front of the Chinese consulate in Toronto. While
several photos had been taken of the applicant participating in same and
produced in support of his application, the PRRA Officer nevertheless notes:
“However, these photos, by themselves, were not found to be sufficient evidence
to establish that [the applicant] had attracted attention of the
authorities of Myanmar and would be subjected to persecution or mistreatment…”
(emphasis added). This clearly amounts to a reviewable error.
[12]
It appears
from the tribunal record that the Chinese government is a strong ally of the Myanmar government.
Accordingly, it is unreasonable to suggest, as does the respondent in his
memorandum of law, that the applicant must prove that the Chinese consulate officials
have themselves taken pictures or videos of the demonstration in Toronto and then forwarded
those images to the Myanmar government. In the case
at bar, the PRRA Officer simply ought to have asked himself, given the public
nature of the applicant’s demonstrations against the government of Myanmar,
whether it was likely to come to the attention of the Myanmar authorities.
[13]
Overall,
I find the impugned decision unreasonable. Accordingly, the present application
is allowed. The impugned decision is set aside and the matter is referred back
for redetermination by another PRRA Officer. Counsel agree that this case does
not raise any questions of general importance.
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