Federal Court Decisions

Date: 19971209

Docket: IMM-296-97

BETWEEN:

     SYLVERINE ALADDIN HSIT

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

RICHARD J.:

[1]      This is an application for judicial review of the decision of the Post Claim Determination Review officer dated November 26, 1996, wherein it was determined that the applicant was not at risk if returned to Myanmar. The applicant seeks an Order quashing that decision.

[2]      The applicant was found not to be a Convention refugee on March 14, 1995. She then became eligible for a risk assessment to determine if she was a member of the Post Determination Refugee Claimant in Canada class.

[3]      In the risk assessment, the immigration officer found that, based on the information before him, there was no "objective basis for a risk to the applicant's life of extreme sanctions or inhumane treatment upon return to Myanmar".

[4]      The applicant raised two grounds in its memorandum dated February 20, 1997:

1)      Was the Applicant denied fairness as a result of the conduct of the immigration officer who did the PDRCC review because the officer considered extrinsic evidence without giving the Applicant an opportunity to respond to it?

2)      Did the officer err in law because she misapplied the definition by rejecting the case based on generalised risk?

[5]      Other than the question of fairness and the application of an erroneous test, counsel for the applicant also advanced the ground that the officer had not considered the totality of the evidence.

[6]      I find that the immigration officer failed to consider the totality of the evidence before her with respect to three findings she made and as a result these findings were made in a patently unreasonable manner.

[7]      The first finding concerns the applicant's credibility. In the risk analysis, the Post Claim Determination Officer states that she is not prepared to totally disregard the finding of the Refugee Board that the applicant was not credible. The following passages are contained in the officer's risk assessment leading to the decision under attack.

Based on the information before me, there is not an objective basis for a risk to the applicant's life of extreme sanctions or inhumane treatment upon return to Myanmar.

I would note that the CRDD panel concluded that the applicant was not credible as her story of her professed fears as expressed, and her reasons for the delay in making the claim were implausible. This forum is not to reassess the merits of a refugee claim. However, nor can this forum operate in a vacuum. Because the applicant has not provided me with any new information addressing the panel's concerns, I am not prepared to totally disregard the panel's findings.

[8]      In its decision, the Refugee Division had found that:

Once the claimant was in Canada, the delay in making a refugee claim is attributable to the time required to fabricate or highly exaggerat [sic] the bones of a claim.

[9]      However, the record prepared by the respondent and delivered to this Court on September 10, 1997, contains the written submission dated November 25, 1995, made by the applicant through her solicitor.

[10]      Under the heading of Credibility, the solicitor gave the following explanation.

The Refugee Division concluded that the applicant is not credible. She did not make her refugee claim for six months. The fact is that she tried to make her claim on August 4, 1993, only one week after she arrived in Canada. But the officer at the Canada Immigration Centre, 5343 Dundas Street West, Etobicoke, Ontario said that he must take away her passport. She was afraid of what might happen. So she withdrew her application. It was only after she met counsel that she felt confident to apply again (Appendix V).

[11]      Appendix V is a copy of an envelope addressed to the Canadian Immigration Centre with the name and return of address of the applicant. It is stamped as having been received at the Etobicoke CIC on August 4, 1993.

[12]      This constitute new evidence which was germane to the issue of credibility. It was clearly overlooked or ignored by the officer who stated that the applicant had not provided any new information addressing the panel's concerns on the applicant's credibility.

[13]      The second finding concerns the applicant's passport. The officer determined that there was no link between the applicant's personal circumstances and the country conditions. She noted that the applicant left Burma with a valid passport with her photo and name on it.

[14]      However, in her Personal Information Form dated December 6, 1994, she declared that she had paid a bribe in order to obtain her passport. The officer did not consider this evidence.

[15]      The third finding concerns the circumstances of the applicant's family in Myanmar. The officer noted that according to her Personal Information Form, her spouse and her four children are all living in Myanmar, are working and attending school. She further noted that the evidence before her does not lead her to conclude that they are experiencing difficulties.

[16]      However, in the written submission made to the officer by the applicant's solicitor, it is clearly stated that the applicant last received a letter from her husband two years ago, in December 1993, and that she does not even know where her family is and how they are doing. She has lost contact with them.

[17]      The officer then found that there was insufficient objective evidence to validate the applicant's belief that she will be arrested by Burmese security forces and detained upon return to Myanmar. This finding was based in part on the applicant's evidence and in part on documentary evidence.

[18]      The officer stated:

After having carefully considered all of the evidence before me, I am of the opinion that there is no more than a mere possibility that the applicant would be subjected to a risk as outlined in the PDRCC definition if she were removed to Myanmar.

[19]      The officer did not consider the totality of the evidence before her. The evidence she overlooked is not incidental or of little probative value.

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[20]      Under these circumstances, the application is allowed, the decision is set aside and the matter is referred back to the respondent for redetermination.

     __________________________

     Judge

Ottawa, Ontario

December 9, 1997