2023 RLLR 261
Citation: 2023 RLLR 261
Tribunal: Refugee Protection Division
Date of Decision: November 2, 2023
Panel: Jora Sandhu
Counsel for the Claimant(s): Gurpreet Singh Badh
Country: Myanmar
RPD Number: VC3-04648
Associated RPD Number(s): VC3-00369
ATIP Number: A-2024-01360
ATIP Pages: N/A
DECISION
INTRODUCTION
[1] This is the decision of the Refugee Protection Division (RPD) in the claims of XXXX XXXX (“the principal claimant”), and XXXX XXXX XXXX (“the associate claimant”) as citizens of Myanmar, who are claiming refugee protection pursuant to section 96 and subsection 97(1)(a)(b) of the Immigration and Refugee Protection Act (the “Act“).[1]
ALLEGATIONS
[2] The following is a brief synopsis of the allegations put forth by the claimants in their Basis of Claim (BOC) forms[2] and during their testimony.
[3] The claimants allege persecution or risk of harm at the hands of the military junta government in Myanmar due to their anti-government political opinion, support for the Civil Disobedience Movement (CDM), and public support of the National Unity Government (NUG). The claimants allege that they are citizens of Myanmar, also known as Burma. They claim to have a well-founded fear of persecution at the hands of the Myanmar military government by reason of their political opinion. Specifically, the claimants fear mistreatment and persecution by the military junta government as a result of their ongoing financial support of the Civil Disobedient Movement (CDM), on the basis of their ongoing social media activity supporting the opposition movement and anti-government political opinion.
[4] The claimants both allege, they became involved with the CDM while in Canada after the Myanmar military staged a coup and overthrew the elected government in 2021. The claimants criticized the Myanmar military on social media and began to recruit more CDM supporters while in Canada. In Canada, the claimants have XXXX and participated in XXXX XXXX and protests against the military coup in Myanmar. The claimants participated in the ‘XXXX XXXX XXXX XXXX XXXX’ at the XXXX XXXX XXXX on XXXX XXXX, 2021. On XXXX XXXX, 2021, the claimants participated in the protest called the ‘XXXX XXXX XXXX XXXX’ in front of the XXXX XXXX XXXX. The claimants continue to recruit and rally the Myanmar community in North America on social media to XXXX and to support the CDM. On XXXX XXXX, 2021, the claimants participated in XXXX XXXX XXXX in front of the XXXX XXXX XXXX and also the XXXX XXXX XXXX XXXX protests held on XXXX XXXX, 2021. On XXXX XXXX, 2022, the claimants helped XXXX the ‘XXXX XXXX XXXX XXXX’. Since the claimants have left Myanmar, the claimants indicate that authorities in Myanmar have visited their home asking about their whereabouts to neighbours.
DETERMINATION
[5] I find that the claimants are Convention refugees pursuant to section 96 of the Act.
ANALYSIS
Identity
[6] The claimants’ personal identities as nationals of Myanmar have been established, on a balance of probabilities, by their sworn testimony and a copy of their identity documentation on file, including a copy of their Burmese passports.[3]
Credibility
[7] In line with the Federal Court’s decision in Maldonado v. Canada, a claimant’s sworn testimony creates a presumption that the individual’s allegations are true unless there is a reason to doubt their truthfulness.[4] In this case, I found the claimants to be generally credible, consistent, sincere, and forthright in their testimony. The claimants provided sufficient detail but did not appear to exaggerate their evidence. For example, the claimants provided detailed and spontaneous testimony about their political views, goals, and opinions. The claimants provided ample description about their various roles and political activism, and their aspirations for change in Myanmar. To these and many other questions, the claimants gave responses which were materially consistent with their narratives, and responses which provided further detail about the claimants’ allegations. The claimants also submitted the following documents in support of their claim:
· Photos from protests the claimants participated in XXXX to XXXX 2021.
· Screenshots of social media posts of rallies and protests the claimants shared under their names.
· Photos of XXXX activity for CDM and NUG.
[8] I give full weight to the above-mentioned photos as I find them authentic and probative in establishing, on a balance of probabilities, the credibility of the claimants’ allegations.
[9] Based on the straightforward testimony of the claimants, I find them to be credible witnesses and accept their allegations as true, on a balance of probabilities, including:
· That the claimants are involved with the CDM and NUG.
· That the claimants’ home in Myanmar was visited by police and authorities in 2022 to locate the claimant, XXXX XXXX XXXX.
· That the claimants are posting their anti coup and anti Myanmar military government views and support for CDM and NUG on social media under their names.
[10] Based on these findings of fact, the overall credibility of the claimants’ testimony, and the presumption of truthfulness, I find that, on a balance of probabilities, the claimants are credible witnesses and have a subjective fear of persecution in Myanmar based on their political opinion.
Nexus
[11] A Convention refugee as determined in section 96 of the Act, a claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group, or political opinion. In this case, I find that the claimants’ allegations establish a nexus to the Convention grounds of political opinion. Therefore, their claims will be assessed under section 96 of the Act.
Well-Founded Fear of Persecution
[12] In Ward,[5] the Supreme Court of Canada held that the test for establishing a fear of persecution is bi-partite in nature. Refugee claimants must establish both that they have a subjective fear of persecution if they return to their home country, and that their fear is well-founded in an objective sense. The subjective component relates to the existence of fear of persecution in the mind of the refugee and the objective component requires that the refugee’s fear be evaluated objectively to determine if there is a valid basis for that fear.[6] The law is very clear that the definition of Convention refugee is forward-looking. As articulated by the Federal Court of Appeal in Mileva, “[t]he question raised by a claim to refugee status is not whether the claimant had reason to fear persecution in the past, but rather whether he now, at the time his claim is being decided, has good grounds to fear persecution in the future.”[7] Based on all the evidence before me and the circumstances of this claim, I find that the claimants have a well-founded fear of persecution in Myanmar and that the forward-looking risk faced by the claimants is more than speculative based on the evidence that the claimants have put forward.
[13] I also find that the objective evidence in the National Documentation Package (NDP) for Myanmar supports the claimants’ allegations and the objective basis for this claim.
[14] Myanmar has struggled to maintain a commitment to human rights ever since it won its independence from the British in 1948. As a consequence of decades under military rule, the country established its own parliamentary system whereby 25 percent of any available seats in the government would be reserved for the military. History has demonstrated that the military in Myanmar continue to wield significant power, which is perhaps best demonstrated by the fact that in 2021, they summarily dissolved Parliament and appointed a military head of government. The government has also refused to allow the UN to continue monitoring the country since then. As a result, Item 1.8[8] notes that the people of Myanmar are facing unprecedented political, socioeconomic, human rights and humanitarian crises, which have escalated dramatically since the military coup. The situation in Myanmar has continued to deteriorate, in part, due to ongoing fighting by the government forces and various separatist forces around the country, as well as the government and military’s focus on harming political dissidents.
[15] Item 2.1[9] explains that following the coup, the CDM, which the claimants have publicly supported, opposed the military regime. In response, the regime responded with repressive tactics, such as mass arrests of its political opponents and the use of widespread lethal violence against unarmed persons. According to Item 2.8[10], police and soldiers massacred protestors in cities and towns across the country, and that the military junta has arbitrarily detained over 11,000 activists, politicians, and journalists. Military tribunals have sentenced 84 people to death in summary proceedings that did not meet international fair trial standards. Item 1.6[11] confirms that since the military coup in February 2021, there has been an increase in violence against civilians by state forces. The same source states that the police and military, plainclothes authorities, and general administration department officers, such as township and ward administrators, have all carried out arbitrary detentions since the coup. Security forces arbitrarily detain individuals during unlawful nighttime raids without warning or warrant, and sometimes blindfolded. Once detained, security forces confiscate phones, effectively cutting communication with family members, lawyers, or others. In the overwhelming majority of arrests, there is no indication of charges against the detainees. The majority of families of detainees receive no information from the military forces as to the wellbeing or the whereabouts of their family members, and many of these detentions amount to enforced disappearances. Item 2.6[12] similarly states that security forces have arrested many individuals suspected of participating in anti-coup demonstrations, or in the opposition CDM.
[16] As a result of the foregoing, I find that the claimants’ have established that they have a subjective fear of persecution based on their anti-government political opinion and active support for the CDM and NUG that is objectively well-founded in Myanmar.
State Protection
[17] I find that the claimants have rebutted the issue of state protection in this case.
[18] In assessing the issue of state protection, there is a presumption that the state is capable of protecting its citizens, except in situations where the state is in complete breakdown.[13] Similarly, if the fear of persecution is credible and there is an absence of state protection, one can presume that persecution will be likely, and that the fear is well-founded.[14] To rebut this presumption, the onus is on the claimant to establish, on a balance of probabilities and through clear and convincing evidence, that the state’s protection is inadequate.[15] The more democratic a state, the harder it is to displace this presumption.[16]
[19] Given that the state is the agent of persecution, that the state firmly opposes and is intolerant of persons who speak out against the government[17], and the objective evidence referred to above with respect to the state’s treatment of opponents and supporters of the CDM, I find that adequate state protection would not be reasonably forthcoming to the claimants. As such, I find that this presumption has been rebutted in this case.
Internal Flight Alternative (IFA)
[20] I find that the claimants do not have a viable IFA in Myanmar.
[21] In Rasaratnam,[18] the Federal Court of Appeal developed a two-prong test to assess whether an IFA is viable. The test entails the consideration of two matters: (1) Whether the claimants would be at risk in the IFA, and (2) whether it is reasonable in all the circumstances, including those particular to the claimants, for them to relocate there. Both prongs must be satisfied to find that a claimant has a viable IFA to escape the harm that they fear.[19]
[22] The military is in control of its territory, despite the ongoing military disputes that it is having in various parts of the country. Even in those locations where authority is currently being contested, the military exerts enough control that they would be able to locate an individual.[20] I find that the claimants, as vocal public dissidents of the military junta government, and vocal supporters of the NUG and CDM, face a serious possibility of persecution through all parts of Myanmar.
[23] Considering the totality of the evidence in this case, including the circumstances particular to the claimants, and the objective evidence that confirms that arrests, detentions, disappearances, and torture by military authorities is pervasive across the country for those perceived to be working against the military government and in opposition, I find that the claimants would face a serious possibility of persecution in Myanmar. As such, I find that the claimants do not have a viable IFA.
CONCLUSION
[24] For the foregoing reasons, I find that the principal claimant, XXXX XXXX, and associate claimant, XXXX XXXX XXXX, are Convention refugees pursuant to section 96 of the Act; therefore, I accept their claims for refugee protection.
——— REASONS CONCLUDED ———
[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Exhibit 2.
[3] Exhibit 1.
[4] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.).
[5] Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689.
[6] Rajudeen, Zahirdeen v. M.E.I. (F.C.A., no. A-1779-83), Heald, Hugessen, Stone (concurring), July 4, 1984. Reported: Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), at 134.
[7] Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.) at para 8.
National Documentation Package, Myanmar (Burma), 31 October 2023, tab 1.8: Myanmar. Humanitarian Needs Overview 2023. . United Nations. Office for the Coordination of Humanitarian Affairs. 15 January 2023.[8].
[9] National Documentation Package, Myanmar (Burma), 31 October 2023, tab 2.1: Burma. Country Reports on Human Rights Practices for 2022. United States. Department of State. 20 March 2023.
National Documentation Package, Myanmar (Burma), 31 October 2023, tab 2.8: Myanmar: Year of Brutality in Coup’s Wake. Human Rights Watch. 28 January 2022.[10].
[11]National Documentation Package, Myanmar (Burma), 31 October 2023, tab 1.6: Country Policy and Information Note. Myanmar (Burma): Critics of the military regime. Version 5.0. United Kingdom. Home Office. June 2023.
[12]National Documentation Package, Myanmar (Burma), 31 October 2023, tab 2.6: Myanmar: Hundreds Forcibly Disappeared. Human Rights Watch. 2 April 2021.
[13] Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689.
[14] Ward, [1993] 2 S.C.R. 689.
[15] Sokoli v. Canada (Citizenship and Immigration), 2018 FC 1072 (“Sokoli”), para. 15.
[16] Canada (Citizenship and Immigration) v. Kadenko [1996] FCJ No. 1376.
[17]National Documentation Package, Myanmar (Burma), 31 October 2023, tab 2.8: Myanmar: Year of Brutality in Coup’s Wake. Human Rights Watch. 28 January 2022.
[18] Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
[19] Zablon v Canada (Minister of Citizenship and Immigration), 2013 FC 58 at para 20.
[20]National Documentation Package, Myanmar (Burma), 31 October 2023, tab 2.32: “Nowhere is Safe”: The Myanmar Junta’s Crimes Against Humanity Following the Coup d’État. Fortify Rights. 24 March 2022.