SITTIPHAN ANUPHAP v. NONGRUK ANUPHAP, 2023 FC 598

Date: 20230425 Dockets: IMM-3831-23 IMM-3838-23 Citation: 2023 FC 598 Toronto, Ontario, April 25, 2023 PRESENT: Madam Justice Go BETWEEN:SITTIPHAN ANUPHAP AND NONGRUK ANUPHAPApplicantsandTHE MINISTER OF CITIZENSHIP & IMMIGRATIONRespondent ORDER AND REASONS [1] Mr. Sittiphan Anuphap [the “Principal Applicant” or “PA”] and Ms.

Nongruk Anuphap [together, the “Applicants”] seek a stay ofremoval to Thailand, scheduled for April 27, 2023, until the final determination of the applications for leave and for judicial review of (i)a decision dated February 28, 2023 by a Senior Enforcement Officer [Officer] denying the Applicants’ application for permanentresidence on humanitarian and compassionate grounds [H&C Decision], and/or (ii) a decision dated February 23, 2022, by the Officerrejecting the Applicants’ Pre-Removal Risk Assessment application [PRRA Decision]. [2] Having considered the material filed by the parties, and having heard the submissions of counsel for the parties, I am granting theApplicants’ motions for a stay of their removal.

III. Context [3] The Applicants are citizens of Thailand. The PA is from Isaan and belongs to an ethnic minority group in Thailand. The PA came toCanada in November 2010 on a work permit. He was joined by Ms. Anuphap and their daughter in March 2013. The Applicantsmaintained their status in Canada until November 2016. [4] The Applicants submitted a PRRA application in September 2021 and provided follow-up submissions in 2021 and 2022. TheApplicants also made an H&C application in January, 2022.

After receiving the negative PRRA Decision and H&C Decision, theApplicants submitted applications for leave and for judicial review of both decisions on March 21, 2023. IV.

Issues and Legal Test for Obtaining a Stay [5] The only issue is whether a stay of removal should be granted in these circumstances. [6] In order to obtain a stay, the Applicants must meet the tripartite test articulated by the Supreme Court of Canada in Manitoba(Attorney General) v Metropolitan Stores (MTS) Ltd, (SCC), [1987] 1 SCR 110 [Manitoba], RJR-MacDonald v Canada(Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald], and R v Canadian Broadcasting Corp, 2018 SCC 5,which is the test to be applied to stays of removal: Toth v Canada (Minister of Employment and Immigration) (1988), (FCA), 86 NR 302, 11 ACWS (3d) 440 (FCA). [7] A stay of removal is warranted only if all three elements of the test are satisfied, namely: (

i) the underlying application for judicialreview raises a serious issue; (ii) the moving party will suffer irreparable harm if the stay is not granted and the removal order isexecuted; and (iii) the balance of convenience favours the granting of the order. [8] The application of this test is highly contextual and fact-dependent. As the Supreme Court of Canada explained, "“[u]ltimately, thequestion is whether granting the injunction would be just and equitable in all the circumstances of the case”:" Google Inc v EquustekSolutions Inc, 2017 SCC 34 [Google] at para 1. V. Analysis A.

Serious Issue [9] The Applicants argue that the Officer made several reviewable errors in the H&C Decision and the PRRA Decision. I need notaddress all the arguments made by the Applicants.

[ 10 ] I find that there are serious issues with respect to

a) the Officer’s failure to properly consider the evidence with respect to the risk faced by the Applicants, and

b) the Officer’s failure to consider holding a hearing. Failure to Properly Consider the Evidence [ 11 ] The Applicants’ PRRA application contained voluminous materials. Counsel for the Applicants made extensive submissions, attached sworn affidavits from the Applicants, and included numerous country condition reports with respect to Thailand. The PA claimed that he would face persecution based on his age, social status and his ethnic background. The PA also claimed that he has been openly supportive of the anti-monarchy movement in Thailand, and was at least a sympathizer of the Red Shirt movement.

The PA further stated that he has expressed his views openly on the internet, particularly on his Facebook profile. As such, the PA fears that authorities will find out about his posts, which would put him at risk of severe consequences including imprisonment and torture. [ 12 ] The Officer found that the Applicants have not provided sufficient evidence to demonstrate that they face more than a mere possibility of persecution or that there are substantial grounds for believing they would be at risk of torture or that they are likely to face a risk of cruel and unusual treatment or punishment.

I summarize the Officer’s key findings with respect to the PA as follows: The Officer found some of the articles submitted by the Applicants out-dated, including an

article dated 2014 about the treatment of Isaan community members, and another one dated 2010 about the protest led by Red Shirts, among others, against the ruling government. The Applicants did not provide a translation of the PA’s Facebook posts (which were neither in English or French).

Given the lack of translation for the PA’s Facebook posts, the Officer concluded that there is little evidence to support the PA’s claims of expressing anti-monarchy views online, and little evidence that the PA’s social media posts would potentially subject him to risks in Thailand; The PA did not submit corroborative evidence to support his claim of being a sympathizer of the Red Shirt movement.

While country conditions reveal that democratic deterioration and frustrations over the role of the monarchy in Thailand has triggered mass demonstrations, the Applicants provided little evidence to demonstrate how the generalized conditions amount to personalized risk. [ 13 ] In making these findings, I agree with the Applicants that there is a serious issue, first of all, with respect to the Officer’s rejection of some of the country conditions evidence solely because of the dates of the articles.

As the Applicants point out, the majority of the materials they submitted are from the National Documentation Package [NDP] of the Immigration and Refugee Board [IRB].

In light of this, the Officer’s decision not to give these articles weight, despite them being considered by the IRB, raises a serious issue. [ 14 ] I reject the Respondent’s submission that the Officer’s findings are “far more expansive than a simple dismissal due to the documents being dated.” This submission seems to be contradicted by the Officer’s own finding, stating: … given the dates of the articles , it is not unreasonable to suggest that these articles do not sufficiently reflect the current state of affairs in Thailand in regards to members of the Isaan community.

As such, these articles provide little support to speak to forward-looking risks the [PA] may face as an individual from Isaan. [Emphasis added] [ 15 ] Further, the Officer was similarly dismissive of at least one of the articles with respect to the government’s treatment of the anti- government groups because of its date: There have been plenty of changes in the country and government since this

article was written, such as the transition of the country to a military-dominated semi elected government in 2019. The [Applicants] also submitted an

article entitled Thailand: Will It Be Civil War? This

article was published by The Atlantic and details protest of the government by groups opposed to the ruling government, such as those who call themselves the Red Shirts. The

article speaks to the nature of these protests and actions taken by authorities, such as "picking off protesters with sniper rifles from afar". This

article was published on May 17, 2010. It is important to note that Thailand underwent a coup in 2014 and as mentioned earlier, the structure of the government changed in 2019. [ 16 ] Other than commenting on the date of this article, and noting the change in the structure of the government since then, the Decision did not assess, one way or another, the issue reflected in the articles – namely the government’s and the military’s treatment of those who oppose the government – and its impact, if any, on the Applicants’ forward-looking risk assessment. [ 17 ] At the hearing, the Applicant further submitted that the Officer did not consider a more recent

article dated July 19, 2022 by Dr. Tim Rackett, “ Un-Thai Lives matter! Thai Identity politics as a race war ” [Rackett article], in which Dr. Rackett attributed the rise of the Red Shirt movement to the underlying social divisions in the North and Northeast regions, and racism against certain ethno-regional groups in Thailand. The Respondent submitted that this

article was not central to the Applicants’ PRRA application, which relied primarily on the 2014

article cited above. [ 18 ] I disagree with the Respondent. The Rackett

article was excerpted and relied on by the Applicants in their PRRA submissions, to not only explain the link between the ethno-regional discrimination and the rising social unrest, but also to highlight the discrimination experienced by Northeastern rural Thai and descendants of Lao with dark skin. This evidence directly relates to the Applicant’s profile, as he came from Isaan, which is located in the Northeastern region of Thailand. The Officer did not refer to the Rackett

article in the Decision when it found little evidence speaking to the discrimination faced by those coming from Isaan. Whether or not the Officer ignored or misconstrued the evidence, a serious issue is raised by the lack of reference to on-point evidence cited by the Applicants, which contradicted the Officer’s findings.

Failure to consider holding a hearing [19] The Applicants further submit that the Officer made a credibility finding and failed to conduct a hearing as required by subsection113(

b) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and

section 167 of the Immigration and Refugee ProtectionRegulations, SOR/2002-227. The Applicants point to the Officer’s refusal to assign probative value to the PA’s Facebook posts becausethey were not translated into English or French, and argue that the Officer was looking for reasons to deny their application.

Citing caselaw confirming that when there is an issue of credibility in relation to evidence that could be determinative to a claim, the Applicantssubmit the Officer should have held a hearing: Tekie v Canada (Minister of Citizenship and Immigration), 2005 FC 27 at para 16; Zemov Canada (Citizenship and Immigration), 2010 FC 800 at paras 17-18; Zmari v Canada (Citizenship and Immigration), 2016 FC 132 atpara 17; and Hurtado Prieto v Canada (Citizenship and Immigration), 2010 FC 253 at para 33. [20] I agree with the Respondent that it was the Applicants who failed to provide the translation of the Facebook posts, after havingstated that they would do so.

I also agree with the Respondent that the burden is on the Applicants to make their case. [21] However, in this case, I find that there is a serious issue as to whether the Officer should have at least considered holding a hearingto assess the PA’s claim that his anti-monarchy stance would put him and his spouse at risks. I say this for the following reasons. [22] First, the PA specifically noted in his affidavit that his internet postings would expose him to persecution. The Applicants’ PRRAsubmissions quoted from the NDP, which confirms that the Thai authorities have broadly applied the provisions of

Article 112 of theCriminal Code to investigate, prosecute or detain lèse-majesté critics and political opponents. These measures have been used to detainand/or arrest activists based solely on their social media posts. The Officer acknowledged in the Decision that Thai authorities monitorsocial media posts and activities.

In light of this acknowledgement on the part of the Officer, whether or not the PA would be at risk dueto his social media posts is determinative of his claim. [23] Second, in finding that there is little evidnece to support the claim that the PA has been critical of the monarchy and governmentonline, the Officer reasoned: I am unable to assign probative value to the [PA’s] Facebook posts as a result of not meeting the language requirements,hence rendering me unable to review them appropriately… Moreover, the applicants have submitted little corroboratingevidence to support the [PA’s] claim of being a sympathizer of the Red shirt movement.

The applicants have providedvarious documentary evidence to speak to lese-majeste charges and I find that this evidence has probative value in regards toillustrating the mistreatment of individuals and groups critical of the monarchy.

While the research is consistent with theevidence presented by the applicants in regards to depiction of punishment assigned to those who speak negatively, or aresuspected of speaking negatively of the monarchy, the evidence provided does little to speak to personalized risks for the[PA]. [24] In finding that the evidence provided “does little to speak to personalized risks” for the PA, the Officer in my view, went beyondsimply noting that the Facebook posts could not be evaluated due to the lack of translation.

Instead, the Officer’s reasons suggest that acredibility finding was made in rejecting all the evidence regarding the PA’s social media activities, including the PA’s affidavit, and byfinding that the Applicants have not provided corroborating evidence with respect their sympathy for the Red Shirt movement. [25] The Respondent submitted at the hearing that it was reasonable for the Officer to find the PA’s affidavit alone insufficient tosupport his claim. However, I note the Officer did not refer to the PA’s affidavit.

There is also case law suggesting that an officer’sfailure to explain why they reject affidavit evidence in the absence of corroborative evidence amounts to a veiled credibility finding: ABv Canada (Minister of Citizenship and Immigration), 2020 FC 498 at para 91. [26] Given that the PA’s views as expressed through his social media posts are central to his claim, and given that the Officer made animplicit credibility finding when they found that the Applicants did not provide corroborative evidence to demonstrate personalized risks,the Officer’s failure to consider holding a hearing gives rise to a serious issue. [27] In light of the above, I find that the first branch of the tripartite test is satisfied on this error alone.

I need not consider the othererrors alleged by the Applicants. B. Irreparable Harm [28] Irreparable harm refers to harm which cannot be compensated in money; it is the nature rather than the magnitude of the harm whichis to be examined: RJR-MacDonald at para 64. In the context of a stay of removal, the harm usually relates to the risk to the individual(s)of harm upon removal from Canada.

It may also include specific harm that is demonstrated in regard to any persons directly affected bythe removal, and who will be remaining in Canada: see Tesoro v Canada (Minister of Citizenship and Immigration), 2005 FCA 148 atpara 28. [29] The law requires that irreparable harm be established based on evidence, not assertions or speculation: Atwal v Canada (Citizenshipand Immigration), 2004 FCA 427 at paras 14-15.

However, the test for irreparable harm is also not one of absolute certainty: Suresh vCanada (Minister of Citizenship and Immigration), (FCA), [1999] 4 FC 206 (CA) at para 12. [30] Irreparable harm may arise from a risk to life, liberty, or safety that the individual would be exposed to if removed to their country oforigin: Begashaw v Canada (Minister of Citizenship and Immigration), 2009 FC 462 at para 54, citing Sivakumar v Canada (Minister ofEmployment and Immigration), (FCA), [1996] 2 FC 872 (CA); Hernandez v Canada (Solicitor General), [1993] FCJNo 950 (TD); Membreno-Garcia v Canada (Minister of Employment and Immigration), (FC), [1992] 3 FC 306 (TD);Suresh v Canada (1998), (ON SC), 49 CRR (2d) 131, 77 ACWS (3d) 163. [31] In the context of this case, there is considerable overlap between the evidence and arguments with respect to serious issues and thoserelating to irreparable harm.

The nature of the harm in this case to the Applicants is such that it cannot be quantified through damages.

[32] In light of the overlap between the first two prongs of the tripartite test, I also find that the potential mootness of the underlyingapplication for judicial review amounts to irreparable harm: Matthew v Canada (Minister of Citizenship and Immigration), 2022 FC 924at paras 21-22. [33] I find the cases cited by the Respondent distinguishable as the Applicants in this case did identify a serious issue with the Officer’srisk assessment, unlike the applicant in Carter v Canada (Citizenship and Immigration), (FC).

Further, the applicantin Abure v Canada (Public Safety and Emergency Preparedness), (FC), did not meet the elevated test required for astay motion based on a deferral decision, which is not the case here. [34] As such, I am satisfied that irreparable harm has been established. C.

Balance of Convenience [35] In the third branch of the test, the Court has to consider where the balance of convenience lies, taking into consideration the publicinterest to be weighed together with the interests of private litigants: Manitoba at paras 34 and 38. [36] I acknowledge the Respondent’s position that there is public interest in enforcing removals as per

section 48 of the IRPA, and thatthe Applicants are seeking extraordinary equitable relief. However, it is for that reason that this Court must consider "whether grantingthe injunction would be just and equitable in all the circumstances of the ""case:" Google at para 1. [37] In this case, the Applicants’ PRRA application was the first opportunity for them to have their risks assessed. As such, it isimportant to ensure that the risk assessment was done properly.

While I note that the Applicants have overstayed in Canada withoutstatus since 2016, I also consider that they do not have any criminal record in Canada. [38] Given the irreparable harm facing the Applicants on the one hand, and the delay in the Ministerial execution of the removal on theother, I find that the balance of convenience lies with the Applicants. [39] Since the application for leave and judicial review of the H&C Decision is likely to be heard and determined on the same scheduleas the application for leave and judicial review of the PRRA Decision, it is unnecessary to address the Applicants’ arguments regardingthe existence of a serious issue to be determined with respect to the reasonableness of the H&C Decision.

I will however grant the staymotion pending a final determination of the applications for leave and for judicial review of both the H&C and the PRRA Decisions. ORDER in IMM-3831-23 and IMM-3838-23 THIS COURT ORDERS that the Applicants’ motions are granted and their removal is stayed pending the determination of theApplicants’ applications for leave and, if leave is granted, pending the determination of their applications for judicial review.

"Avvy Yao-Yao Go" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKETS: IMM-3831-23 AND IMM-3838-23 STYLE OF CAUSE: SITTIPHAN ANUPHAP AND NONGRUK ANUPHAP v THE MINISTER OFCITIZENSHIP & IMMIGRATION PLACE OF HEARING: HELD VIA VIDEOCONFERENCE DATE OF HEARING: April 25, 2023 ORDER AND reasons: GO J. DATED: April 25, 2023 APPEARANCES:

Clare Yacyshyn For The Applicants Nadine Silverman For The Respondent SOLICITORS OF RECORD : Wennie Lee Lee & Company Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent