Date: 20030716
Docket: IMM-3662-02
Citation: 2003 FC 881
Between:
SINA YONN
Applicant
And:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU J.
[1] This is an application for judicial review of a July 19, 2002 decision of the Refugee Division of the Immigration and Refugee Board that the applicant is not a Convention refugee.
[2] The applicant is a citizen of Cambodia, born on October 10, 1974. He claims to have a well-founded fear of persecution based on political opinion.
[3] According to the applicant, while he was living in Cambodia, he was in contact with a group of student supporters of the opposition party of Sam Rainsy. The group tries to alert public opinion to the brutality of the Hun Sen regime. The applicant was not a member of the group, but he did collaborate with them.
[4] The applicant claims that in April 2001, he went to live in Cuba and to work there as a chauffeur for his uncle, the Cambodian ambassador to Cuba. Three weeks after he arrived in Cuba, he received a letter from a friend in Cambodia, and because he was in a hurry, he took it with him to work. In the letter, his friend asked him to promote the Sam Rainsy party among Cambodian students in Cuba. After reading the letter, he hid it in his desk drawer because he had to go right away to drive someone from the embassy. The next day, the letter was no longer in the drawer where he had left it.
[5] The applicant says that a week later, he was summoned by the embassy's political attaché, who accused him of being a spy for the Sam Rainsy party. He was ordered to return to Cambodia.
[6] That same day, the applicant purportedly spoke to his uncle, who explained that he had to fire him, but promised to help him out. That evening, the applicant spoke to his father and found out that the police had summoned his parents to force them to persuade him to return to Cambodia to face charges. His parents advised him not to return to Cambodia; they feared for his safety.
[7] The applicant says that his uncle and aunt helped him to flee to Canada. He claimed refugee status in Canada on June 14, 2001.
[8] On July 19, 2002, the Refugee Division rejected the applicant's claim after finding that it lacked credibility for the following reasons:
(a) The claimant acknowledged that having the letter in his possession would put him at risk; it is implausible that he would have kept the letter and left it in a desk drawer in the Cambodian embassy.
(b) The documentary evidence indicates that the Sam Rainsy party is not an illegal entity. Therefore, an embassy official could not accuse the claimant of a criminal act.
(c) The fact that the claimant remained in Cuba for a month is not plausible, given the seriousness of the charges against him.
(d) It is not plausible that the claimant's uncle could continue working as ambassador if he lied to the staff of the Canadian embassy in Cuba about the purpose of the claimant's visit to Canada and aided and abetted the claimant's escape against the wishes of the Cambodian authorities.
(e) Given that the claimant was not a member of the Sam Rainsy party, the Refugee Division did not believe that he "would be at risk in the same way as other individuals associated with the party appear to have been".
[9] It is clear from these reasons that the Refugee Division based its adverse credibility finding in this case on a number of implausibilities. The respondent contends that these inferences were reasonable and consistent with the applicable legal principles. Before I begin my analysis of the decision, I would first mention the principle in Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.), according to which there is a presumption that the applicant's allegations are true.
[10] The Refugee Division found it implausible that the applicant would have kept the letter from his Cambodian friend in a desk drawer at the embassy. In its decision, the Refugee Division stated that the applicant "had no answer" to this question. As a matter of fact, the applicant explained that he took the letter with him to work because he was in a hurry and left it in his desk drawer because he had to go right away to drive someone from the embassy. This explanation is perfectly reasonable, but the Refugee Division appears to have disregarded it. The implausibility finding in relation to the letter is thus patently wrong.
[11] The Refugee Division found it implausible that the applicant would remain in Cuba for a month, given the seriousness of the charges against him. However, the documentary evidence shows that he had a visa and a Cuban driver's licence. His position in Cuba was stable, so there was no reason for the local authorities to be looking for him.
[12] The Refugee Division then found it implausible that the applicant's uncle would be able to continue to work as ambassador under the circumstances. This finding is based on speculation. There are various reasons why his uncle might keep working at the embassy. The Cambodian government may not have known how he helped his nephew, or he may have had connections with senior officials in the Cambodian government. In my view, the Refugee Division's findings in relation to these supposed implausibilities are unreasonable.
[13] The Refugee Division also found it implausible that the applicant would be accused of a criminal act, given that the Sam Rainsy party is not an illegal entity. This finding is problematic. The Refugee Division itself noted that the Hun Sen regime put the safety of members of the Sam Rainsy party at risk. Even though the opposition party is theoretically legal, individuals associated with it are clearly targeted. The finding that the applicant would not be accused of a criminal act because the party is a legal entity is patently wrong.
[14] Finally, the Refugee Division did not believe that the applicant would be at risk of being persecuted if he had to return to Cambodia, because he was not a member of the Sam Rainsy party. This finding is patently wrong for two reasons. The Refugee Division erred in fact when it observed only that "there have been examples of attacks on members of the party's leadership". Actually, the documentary evidence indicates that ordinary party members have been attacked, not just the leaders. The issue here is not whether the applicant is a member of the Sam Rainsy party, but whether the agents of persecution perceive him as being associated with it: Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. The applicant submitted a photo of himself with Sam Rainsy as evidence of his association with the party. Furthermore, his testimony shows that he participated in a number of activities of the Sam Rainsy party in Cambodia and that he received a letter from a party member when he was in Cuba. This evidence establishes that the applicant may be perceived as being associated with the Sam Rainsy party.
[15] I find that the Refugee Division made a number of errors warranting the intervention of this Court. Accordingly, the application for judicial review is allowed. The decision of the Refugee Division dated July 19, 2002, is set aside, and the matter is referred back for redetermination by a newly constituted panel.
"P. ROULEAU"
JUDGE
OTTAWA, Ontario
July 16, 2003
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET: IMM-3662-02
STYLE OF CAUSE: SINA YONN
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 25, 2003
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE ROULEAU
DATE OF REASONS: July 16, 2003
APPEARANCES:
Louis NADEAU FOR THE APPLICANT
Marie-Claude DEMERS FOR THE RESPONDENT
SOLICITORS OF RECORD:
Louis NADEAU
3-5022 Côte-des-Neiges
Montreal, Quebec
H3V 1G6
Tel: 514-341-5330
Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Montreal, Quebec
Respondent
Date: 20030716
Docket: IMM-3662-02
Ottawa, Ontario, the 16th day of July 2003
Present: the Honourable Mr. Justice Rouleau
Between:
SINA YONN
Applicant
And:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision of the Refugee Division dated July 19, 2002, is set aside. The matter is referred back for redetermination by a newly constituted panel.
"P. ROULEAU"
JUDGE
Certified true translation
Peter Douglas