BETWEEN:
and
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
REASONS FOR ORDER
[1] The judicial review concerns an adverse pre-removal risk assessment (PRRA) which concluded that the Applicant would not be subject to risk of persecution, torture, risk to life or risk of cruel and unusual punishment if returned to his country of nationality, Myanmar.
[2] Myanmar (Burma) is currently ruled by a highly authoritarian military regime. Democratic movements, in particular, student-led democratic movements, have been and continue to be suppressed in a brutal fashion.
[3] The Applicant claimed that he joined a non-political soccer union at the urging of a friend. Such sports associations violate the laws of Myanmar.
[4] Having arrived in Canada under a student's visa, the Applicant made a refugee claim. He alleged that his mother had informed him that the authorities were looking for him because he had distributed anti-government literature. He also claimed that his father had been arrested and interrogated about the Applicant's activities. He also said that his friend, who had urged him to joint the soccer association, had been arrested. The Applicant's refugee claim was denied.
[5] At his subsequent first PRRA, the Applicant produced new evidence - a letter from his father describing events of arrest and fears for his return, and a copy of a warrant for the Applicant's arrest. That PRRA decision was negative from which the Applicant sought judicial review. By agreement, the Minister quashed the first PRRA and referred it to another officer for a new decision. That decision was likewise negative. It is this second PRRA decision which is the subject matter of this judicial review.
[6] The Applicant says that the PRRA officer erred in (a) determining that the Applicant would not be at risk under sections 96 and 97of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") for distributing anti-government literature; and (b) in not accepting the evidence of the existence of a warrant for his arrest.
ANALYSIS
Sections 96 and 97 of IRPA
[7] In my view, it is not necessary to engage in an analysis of this aspect of the judicial review. The Applicant is, in reality, challenging the IRB's determination that he does not qualify under sections 96 or 97 of IRPA.
[8] A PRRA is not an appeal of the IRB's decision; it is an opportunity for an applicant to raise new evidence, not available to be heard by the IRB, to support the position that an applicant ought not to be removed. (See Hausleitner v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 786, 2005 FC 641.)
[9] Therefore, this aspect of the judicial review must fail.
Re: Warrant for Arrest
[10] In the Officer's decision, the Officer assigned little weight to the warrant document. Having assigned little weight to a letter from the Applicant's father and from a lawyer, the Officer went on to say:
Also, the warrant was issued in December 2003 and it does not appear that further action has been initiated against the Applicant or his parents. In addition, despite having several opportunities to clarify information surrounding the copies of the warrant, inconsistencies still remain with respect to who is in possession of the actual copy of the warrant received from authorities. Based upon the sum of the information, and that I find it unlikely that the Applicant participated in an underground soccer team, I assign this warrant document little weight.
[11] As to the standard of review, I adopt Justice Martineau's analysis in Figurado v. Canada(Solicitor General), [2005] 4 F.C.R. 387, 2005 FC 347, [2005] F.C.J. No. 458,:
In my opinion, in applying the pragmatic and functional approach, where the impugned PRRA decision is considered globally and as a whole, the applicable standard of review should be reasonableness simpliciter (Shahi v. Canada(Minister of Citizenship and Immigration), [1999] F.C.J. No. 1826 (T.D.) (QL), at paragraph 13; Zolotareva v. Canada (Minister of Citizenship and Immigration) (2003), 241 F.T.R. 289 (F.C.), at paragraph 24; Sidhu v. Canada (Minister of Citizenship and Immigration), 2004 FC 39, at paragraph 7). That being said, where a particular finding of fact is made by the PRRA officer, the Court should not substitute its decision to that of the PRRA officer unless it is demonstrated by the applicant that such finding of fact was made in a perverse or capricious manner or without regard to the material before the PRRA officer (paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27] of the Federal Courts Act; Harb v. Canada (Minister of Citizenship and Immigration) (2003), 238 F.T.R. 194 (F.C.A.), at paragraph 14).
[12] Justice Mosley in Kim v. Canada(Minister of Citizenship and Immigration), [2005] F.C.J. No. 540, paragraphs 8-22, conducted a comprehensive analysis of the applicable standard of review of PRRA decisions and concluded that, in respect of facts, it is patent unreasonableness; mixed fact and law, the standard was reasonableness simpliciter; and for questions of law, correctness.
[13] Therefore, it is important to classify the Officer's finding as to the weight to be given the warrant. If that finding is one of attributing legal significance to the document in Myanmar, as a matter of foreign law, or a determination of the existence of a warrant, it is a question of fact - for which the standard of review is patent unreasonableness.
[14] If, on the other hand, the Officer's finding is that the document is a forgery or at least suspect, that is more in the nature of mixed law and fact to be decided on the basis of reasonableness simpliciter. There is a clear cross-over of considerations between this determination and that referred to in the preceding paragraph.
[15] Having reviewed the record in detail, it appears that the Officer was particularly concerned that the document was only a copy or perhaps a copy of a copy. There was much discussion in the evidence about the location of the original and of the copy left by the authorities with the Applicant's family.
[16] The difficulty with the Officer's decision is that he does not say that the warrant is a forgery but treats it as if it was. There is no articulation of the basis upon which the Officer treated the warrant as a forgery. The copy of the warrant has the seal of the state, official-looking writing and other indicia of "officialdom", yet the Officer fails to say why, in the face of this apparently official document, it should be disregarded.
[17] Therefore, to the extent that the Officer was making a finding of forgery or was suspect, there was no basis articulated or apparent for so doing. It was an unreasonable finding in an area where the Officer has no specialized expertise.
[18] If the Officer's conclusion is that, as a fact, no warrant was issued or that as a matter of foreign law, the document has no legal significance, there is no evidence upon which to base such conclusions. Those conclusions are patently unreasonable.
[19] The Court need not deal with the other aspects of this judicial review. The PRRA decision will be quashed, and the matter remitted to the applicable Respondent to be determined by a different officer.
[20] There is no question for certification.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4023-05
STYLE OF CAUSE: THU AUNG
And
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 24, 2006
REASONS FOR ORDER: The Honourable Mr. Justice Phelan
APPEARANCES:
| Ms. Nicole Hainer
|
|
| Ms. Caroline Christiaens
|
SOLICITORS OF RECORD:
| ELGIN, CANNON & ASSOCIATES Barristers & Solicitors Vancouver, British Columbia
|
|
| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia |