Citizenship and Immigration. As part of the
agreement, the complainant was required to provide
new PRRA submissions by 5 November 2004,
which was extended to 26 November 2004, while a
stay of deportation was granted on 22 October 2004.
The second PRRA was denied on 8 June 2005. The
complainant was advised that he was to complete his
departure requirements on 18 June 2005. An
application for leave and judicial review of this
PRRA decision was filed at the Federal Court on 30
June 2005. A motion to stay the removal was filed in
the Federal Court on 8 July 2005. In the meantime,
the complainant was notified by the Canada Border
Services Agency that a travel document to Myanmar
had been obtained on his behalf, and that he was
scheduled to be deported on 18 July 2005.1
Action Committee for Free Burma, is a supporter of
the National League for Democracy, the Burmese
Children Fund as well as the Myanmar Heritage
Cultural Association. There is currently a warrant
out for his arrest in Myanmar for his involvement
with the soccer “union”. In addition, the complainant
argues that the fact the Canadian authorities have
applied for, and received, a passport on his behalf
has alerted the Myanmar authorities.
State party’s observations on admissibility
4.1 On 21 December 2005, the State party
contested the admissibility of the communication on
two grounds. Firstly, it argues that the complainant
has not exhausted domestic remedies. On 26 October
2005 the Federal Court granted the complainant’s
application for leave to apply for judicial review of
the decision on his pre-removal risk assessment
(PRRA). The hearing on the application for judicial
review was scheduled for 24 January 2006. If his
application is successful, the complainant will be
entitled to a new PRRA assessment. If the
application is not successful, the decision of the
Federal Court can be appealed to the Federal Court
of Appeal if the Federal Court judge certifies that the
case raises a serious question of general importance,
under section 74 (d) of the Immigration and Refugee
Protection Act (IRPA). A decision of the Federal
Court of Appeal can be appealed, with leave, to the
Supreme Court of Canada. Further, if the judicial
review is not successful, the complainant could also
apply for a further PRRA on the basis of any new
evidence that may have arisen since the last
determination, although in that case he would not
have the benefit of a statutory stay of removal.
However, he could apply for a judicial stay of
removal pending the disposition of that application.
The State party refers to the jurisprudence of the
Committee to find that judicial review is widely and
consistently accepted to be an effective remedy.2
2.6 On 15 July 2005 the Federal Court granted the
stay of execution of the removal order, on the basis
that the officer who performed the complainant’s
PRRA assessment had attributed little weight to the
arrest warrant and had not clearly indicated whether
the warrant was genuine or not.
2.7 In light of this finding, on 3 August 2005 the
Special Rapporteur on New Communications and
Interim Measures of the Committee lifted the
provisional interim measures previously issued by
the Committee.
The complaint
3.1 The complainant argues that he would be at
risk of arbitrary arrest, beatings and torture if he
were returned to Myanmar, where human rights
violations within the meaning of article 3, paragraph
2, of the Convention are said to be frequent.
3.2 Counsel refers to the United States
Department of State Report for Burma (2004) and its
reports of the human rights violations in Myanmar,
including the fact that in January 2004 seven
students who had formed an illegal football ‘union’
were given sentences ranging from seven to fifteens
years imprisonment. Counsel also provides reports
from
non-governmental
sources
containing
information on the human rights situation in
Myanmar, and that those suspected of prodemocratic political activity are killed, arrested and
detained without trial. Counsel refers to evidence
from a medical training programme manager at the
International Rescue Committee confirming that the
Burmese Government regularly detains those
deportees that it believes left Myanmar for political
reasons.
4.2 In the view of the State party, the PRRA
procedure is an effective remedy which should be
exhausted,
contrary
to
the
Committee’s
jurisprudence.3 The State party notes that during its
examination the complainant would not be removed.
If successful, the complainant will become a
protected person and barring serious security
concerns will be eligible to apply for permanent
resident status, and ultimately citizenship. It also
considers that the PRRA is more comprehensive
than the ‘post-determination refugee claimants in
3.3 The complainant highlights that he has been
active in pro-democratic Burmese groups since his
arrival in Canada. Specifically, he is involved in the
2
The State party refers to, inter alia, communication
N° 183/2001 B.S.S. v. Canada, Views adopted on 12 May
2004, para. 11.6.
3
The State party refers to communications N° 133/1999,
Falcon Ríos v. Canada, Views adopted on 23 November
2004, para. 7.4, and N° 232/2003, M.M. v. Canada,
admissibility decision of 7 November 2005, para. 6.4.
1
The State party subsequently informed the Committee
that the removal order had not been enforced.
8
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