Date: 20061124
Docket: IMM-374-06
Citation: 2006 FC 1409
Halifax, Nova Scotia, November 24, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MEHMET
UGURLU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of an immigration officer dated January 20, 2006, rejecting the applicant’s
pre-removal risk assessment application (PRRA).
[2]
The
applicant seeks an order setting aside the decision of the immigration officer
and referring the matter for re-determination by a different officer.
Background
[3]
The
applicant, Mehmet Ugurlu, is a citizen of Turkey. Prior to
his arrival in Canada, the applicant lived in the United
States
for two years but did not make an asylum claim while living there. The
applicant came to Canada in August 2003 and claimed refugee protection,
alleging persecution on the basis of his Kurdish ethnicity, political views and
membership in a particular social group, namely, individuals targeted by the
Turkish mafia. On October 21, 2003, the applicant’s refugee claim was declared abandoned
due to his failure to complete a Personal Information Form (PIF) in time.
Leave was twice denied for this decision.
[4]
On
December 16, 2005, the applicant met voluntarily with Citizenship and Immigration
Canada (CIC) officials. During this meeting, he was asked whether he feared returning
to Turkey. The
applicant indicated that he did fear returning to Turkey and was
immediately declared a flight risk. He was detained from December 16, 2005,
until late January 2006. The applicant eventually filed a PRRA application in
January 2006, in which he submitted that he faced a personal risk of
persecution in Turkey based upon his Kurdish ethnicity, perceived political
views, status as an asylum seeker and because he was targeted by the mafia. The
applicant submitted that his detainment prevented him from obtaining
documentary evidence in support of his claim.
[5]
On
January 20, 2006, the PRRA application was rejected on the basis that effective
state protection existed in Turkey and that the applicant would therefore not
be subject to persecution if deported. It was also found that the applicant
would not be at risk of loss of life, torture or cruel and unusual punishment
if returned to Turkey. The applicant received the PRRA decision on
January 23, 2006. On January 24, 2006, the applicant was notified that he would
be deported the next morning. The applicant brought an emergency motion to stay
the removal order and a temporary stay was granted. On January 30, 2006, the
Court ordered that the removal order be stayed pending the outcome of the applicant’s
application for judicial review of the PRRA decision. This is the judicial
review of the PRRA decision.
Reasons for
the Decision
[6]
The
officer began by stating that the applicant is an ethnic Kurd who likely faced
serious discrimination during childhood, but concluded that the evidence failed
to show that Kurds are currently persecuted in Turkey. In
addition, there was no evidence that the applicant was perceived as hostile to
the state.
[7]
Next,
the officer concluded that the applicant’s submissions regarding the detention
of returning asylum seekers were not supported by human rights sources of
adequate quality. The officer noted that the detainment of asylum seekers was
an issue in the 1980s, but concluded that Turkish authorities would now consider
the applicant to be an economic migrant. The officer also considered the
applicant’s submissions regarding his risk of torture if returned to Turkey. He noted
that the applicant’s submissions relied upon sources dating from 1997 to 2002. These
sources indicated that torture was common in Turkey during the
given period. The officer noted that conditions in Turkey are now
different, as a result of the end of the civil war and the country’s desire to
enter the European Union.
[8]
The
officer proceeded to consider the applicant’s claim of persecution by the
Turkish mafia. The applicant’s problems with the mafia began in 1999 when his
father borrowed 150 million Turkish lira and was unable to repay the debt. The
applicant gave a cheque for two billion Turkish lira to the mafia members hired
to collect the debt. An interest rate of ten percent per day was charged upon
the original debt. The officer determined that the debt was worth $150 Canadian
dollars and that the amount paid to cover it amounted to $2,000 Canadian
dollars. The applicant claimed that he contacted the police and that the mafia
bribed them. He claimed that he was then tortured and detained by the police
for three days, while they made references to his Kurdish ethnicity.
[9]
The
applicant left Turkey following this incident and lived in the United
States
for two years. The applicant stated that while living there, he received threatening
phone calls from the Turkish mafia indicating that they would kill his family
if he did not give them more money. The applicant stated that he came to Canada because he
had lost his chance to claim asylum in the United States. The
applicant submitted that he was charged with failure to repay his debt and was
wanted by the Turkish police. The officer noted his consideration of a
document which indicated that the applicant was wanted by the police, in
addition to other supporting documentation regarding this matter.
[10]
The
officer indicated that the main issue to be determined was whether the Turkish
state was so ridden by crime that effective state protection was impossible. The
officer reviewed the applicant’s evidence and accepted that the situation in Turkey in the
mid-1990s was characterized by government corruption and that it was likely
that there was no effective state protection from the mafia at the time.
However, the officer found that this lack of state protection did not persist.
His research indicated that although organized crime and official corruption
still existed in Turkey, it did not do so with impunity, nor to the extent that
the state was dominated by criminals. The officer accepted the applicant’s
evidence of victimization by extortionists who paid off the police, but found
no evidence that effective state protection was no longer available. Instead,
the evidence indicated that effective state protection would be available in Turkey today. The
officer noted that Turkey is a democratic state which has made strides in
human rights and in retraining its security services.
[11]
The
officer concluded that the applicant had failed to demonstrate that Turkey could not
provide state protection, and as such did not meet the definition of a
Convention refugee or a person in need of protection within the meaning of
sections 96 and 97 of IRPA. The officer held that there was no reasonable
chance or serious possibility that the applicant would be persecuted in Turkey, or was at
risk of loss of life, cruel or unusual punishment or torture.
Issues
[12]
The
applicant submitted the following issues for consideration:
1. Did the officer err in law by failing to
give any weight to documentary evidence that supported the applicant’s claim
while failing to refer to specific documentary evidence that discredited the
applicant’s claim?
2. Did
the officer err in law by ignoring relevant evidence that supported the
applicant’s claim and contradicted the officer’s determination?
Applicant’s
Submissions
[13]
The
applicant submitted that the officer had an obligation to cite up-to-date
evidence after disregarding the applicant’s documentary evidence (see Tekie
v. Canada (Minister of Citizenship
& Immigration),
2005 FC 27). It was submitted that the officer made several patently
unreasonable findings by ignoring or attributing little weight to the
applicant’s documentary evidence without seeking contradictory evidence upon
which to base his opinion (see Miral v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 254 (QL)). In particular:
1. The
officer accepted documentary evidence showing that torture was common in
prisons but had no evidentiary basis for finding that conditions in the country
had changed. Evidence that Kurdish prisoners were treated more harshly was also
ignored.
2. The
officer discredited documentary evidence regarding the treatment of returned
asylum seekers without citing contradictory evidence.
3. The
officer accepted that the applicant was victimized by the mafia but reached an
unsupported conclusion which was directly contradicted by the documentary
evidence when he stated that official corruption and organized crime exist but
do not dominate the state.
4. Official
documents proved that the applicant was beaten, hospitalized, complained to the
police, is wanted by the police, and will be detained if returned to the
country. The officer’s determination was contradicted by these documents and he
failed to provide reasons why they did not carry weight.
5. The
officer’s determination that the applicant should seek protection from the very
individuals he fears (the police) demonstrates a misunderstanding of his claim.
The applicant submitted that the officer must state why he found the documents
establishing his fear of the police lacked credibility or why he preferred
contradictory evidence. The officer appeared to completely ignore the evidence
submitted regarding the applicant’s fear of the police (see Madelat v. Canada (Minister of Employment and Immigration) (1991), 179 N.R. 94 (F.C.A)).
[14]
The
applicant submitted that the officer erred in determining the amount in
Canadian dollars of the debt and cheque given to the mafia. The debt was in
fact worth $546.65 and the cheque was in the amount of $7,288.74. The applicant
submitted that the officer negligently relied on false information in rejecting
the applicant’s claim and that he may not have reached the same decision if faced
with the correct figures.
[15]
The
applicant noted that he was detained at the time of his PRRA and was not given
the opportunity to retrieve documentary evidence in support of his claim. It
was submitted that the officer should, in the interest of justice, have made
inquiries into this information and provided additional time for the applicant
to procure it.
[16]
The
applicant submitted that he was not given adequate opportunity to present his
refugee and PRRA claims and that this issue was ignored by the officer. The
applicant submitted that under subsection 113(b) of IRPA, the officer should
have exercised his discretion and held a hearing. Section 167 of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations) sets
out the factors to be taken into consideration when determining whether a
hearing is required. The applicant submitted that a hearing should have taken
place if the officer had concerns regarding the evidence submitted to prove the
legitimacy of his fear. It was submitted that the officer ignored this evidence
and that this was a patently unreasonable error in law.
[17]
The
applicant submitted that it would be a violation of the principles of fairness
and fundamental justice if an officer were to make an adverse credibility
finding against an applicant without a hearing (see Kaberuka v. Canada
(Minister of Citizenship and Immigration), [1995] 3 F.C. 252). The
applicant also submitted that the officer made an implied adverse credibility
finding.
Respondent’s
Submissions
[18]
The
respondent submitted that the standard of review applicable to the officer’s
PRRA decision is patent unreasonableness. The respondent submitted that the
Court should not re-weigh the evidence placed before the officer, as a high
level of deference should be given to a PRRA officer’s conclusions regarding
country conditions. The respondent submitted that the applicant failed to
demonstrate that the officer’s assessment of his risk or state protection
findings were patently unreasonable (see Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437 at paragraph 19).
[19]
The
respondent stated that an officer’s principal objective when considering a PRRA
application is to assess the weight of the evidence. It was submitted that the
officer reviewed all of the applicant’s evidence and gave detailed reasons for
declining to attribute significant weight to it. The respondent submitted that
the decision does not disclose reviewable errors. It was submitted that the
applicant’s arguments amount to a general objection about the manner in which
the officer weighed the evidence. (see Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3).
[20]
The
respondent submitted that the allegation that the officer’s failed to refer to
relevant evidence was unfounded. The respondent submitted that the officer
summarized the documents and gave specific reasons why less weight was
attributed to them. For example, the officer found that: (1) certain documents
were not supported by good quality human rights sources; (2) the applicant’s
situation would be seen as a case of economic migration by Turkish authorities;
and, (3) evidence referring to the situation in Albania and press
law was not relevant.
[21]
The
respondent submitted that the officer conducted his own research which revealed
that criminal organizations no longer act with impunity and do not dominate the
Turkish state. The respondent submitted that there was no proof that the
officer failed to consider all of the evidence. The respondent maintained that
it is settled law that an officer is presumed to have considered all of the
evidence unless it can be shown otherwise. It was submitted that the assessment
and weight to be given to the evidence is a matter within the officer’s discretion
and expertise (see Hassan v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)). The respondent
submitted that the applicant failed to demonstrate that the officer refused to
consider evidence, ignored evidence or made an erroneous finding with respect
to evidence.
[22]
The
respondent submitted that the PRRA application was not the applicant’s only
opportunity to present his refugee claim in Canada. The
applicant’s refugee claim was declared abandoned in October 2003 and leave for the
decision was twice denied. The respondent submitted that the applicant had
ample opportunity to present his claim (see El Jarjouhi v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 466 (QL)). The respondent
submitted that the onus was on the applicant to establish his claim. It was
submitted that the applicant’s statement that his detention prevented him from
retrieving evidence should be ignored since his PRRA submissions were prepared
with the assistance of counsel and nothing impeded counsel from gathering and
submitting new evidence on his client’s behalf.
[23]
The
respondent submitted that the officer was not required to hold a hearing
pursuant to subsection 113(b) of IRPA because no finding of credibility was
made, whether implied or otherwise.
Analysis
Standard of Review
[24]
An
immigration officer’s decision on a PRRA application, considered globally and
as a whole, is reviewable on a standard of reasonableness simpliciter. Particular
findings of fact, however, are reviewable on a standard of patent
unreasonableness.
[25]
I
wish to first deal with Issue 2.
[26]
Issue
2
Did the officer err in law by ignoring
relevant evidence that supported the applicant’s claim and contradicted the
officer’s determination?
While
the officer addressed the issue of state protection from the mafia, I find it
problematic that the officer failed to consider the applicant’s claim that he
feared persecution by the police, as agents of the state. The applicant
provided evidence that the police had tortured him and had a warrant for his
arrest. In effect, the applicant fears the very state which the officer found
could protect him. The applicant explained his fear of the police in the
following portion of his PIF narrative:
Unfortunately, my father went bankrupt and
he was unable to honour the certificate. The company, to which the money was
owed, hired the mafia to go after my father. In order to protect him, I issued
a cheque to the mafia for 2 billion lira. They also demanded ten percent per
day.
The same day, neighbour went to the
police to make a denunciation. 13 of the mafia members were caught and placed
in a line up for me to recognize. I recognized them. Two members of my staff
were also able to recognize them in the line up.
However, these Mafia members bribed the
police chief. The police received the bribe in front of me. The money was
paid to torture me. I was kept three days and two nights. As they tortured me,
the police made references to my Kurdish ethnicity. The police warned me not to
complain against them. I was asked to sign a document and I was told not to
seek medical attention.
I wrote a letter to the Minister of
Justice and to the President of Turkey, exposing my case against the police and
the mafia. Since then, the police was after me, as well as the mafia,
who were also demanding money from me.
(Emphasis added)
(Tribunal record at page 40)
[27]
In
addition to this statement, the applicant provided the officer with documents
showing that he had filed a complaint against the police and sought medical
treatment after being beaten by them. The officer summarized the applicant’s
submission regarding these events by stating the following:
That same day a neighbour went to the
police to denounce the criminals, who he could identify, as could Mr. Ugurlu
and two of his employees. The police lined up 13 of the 15 men who had come to
his premises, and he and his staff were able to pick them out. However, the
criminals bribed the police right in front of him and Mr. Ugurlu was detained
and held for three days and two nights, during which time he was tortured, the
police making references to his Kurdish ethnicity.
[28]
The
officer’s reasons for dismissing the applicant’s fear of torture read as
follows:
Evidence related to torture:
NOTE: This part of Counsel’s submission
letter is in the form of an essay, with footnotes. The supporting documents
are appended. However I note that his submission was written on January 2006
but the sources used are dated from 1998, 2000, and 2002. Current conditions
in Turkey are quite different, not merely in politics or law, but in actual
implementation, probably as the result of the civil war having ended and of Turkey’s desire to enter the E.U.
S.M.
Submission evidence on torture for period
documented, 1997 to 2002, showed that torture was all too common, that its
victims rarely lodged complaints, and that in the cases brought, only a
fraction were prosecuted.
[29]
The
officer’s analysis of state protection consisted of the following:
My own research showed that the high level
criminals did not enjoy impunity, that the war in the Southeast did not
continue, and that the “idealists” of the Grey Wolves have come to be seen as a
threat. Organized crime and official corruption no doubt continue, but not with
impunity, and not the extent that the state is dominated or threatened. Even
Alaattin Cakici was captured and imprisoned.
Therefore, while I accept that Mr. Ugurlu
might well have been the victim of extortionists, who could and did pay off
local police, there is not evidence that effective state protection would
not have been available to him at the time; and there is evidence that
effective state protection would be available to him now. Turkey, for all its failings as a
state, remains democratic, has made tremendous strides in human rights reforms
and in the retraining of its security services.
(Emphasis added)
(Tribunal record
at pages 26 and 27)
[30]
The
officer’s research regarding state protection mainly addresses the fact that
high level criminals have been jailed in Turkey. The
research does not address the applicant’s concern that he risks persecution at
the hands of the state itself.
[31]
The
officer reproduced the following portion of the U.S. Department of State 2004
Country Report on Human Rights Practices in Turkey as part of
his research, but did not refer to it in his reasons (Tribunal record at page
20):
C. Torture and Other Cruel, Inhuman, or
Degrading Treatment or Punishment
The Constitution prohibits such
practices; however, members of the security forces continued to torture, beat
and otherwise abuse persons regularly, particularly in the southeast. Security
forces most commonly tortured leftists and Kurdish rights activists.
According to the HRF [the Human Rights
Foundation] there were 918 credible cases of torture and mistreatment reported
at its 5 national treatment centers during the year. Human rights advocates
claimed that hundreds of detainees were tortured during the year in the
southeast, where the problem was particularly serious, but that only a small
percentage of detainees reported torture and ill-treatment because they feared
retaliation or believed that complaining was futile.
During the year, senior HRF and HRA
officials stated that there had not been a significant change in the frequency
of torture over previous years. However, officials at a number of HRA branch
offices, including in the southeast, said they had observed a decline in the
practice. A number of attorneys in the southeast and other regions also
reported that torture and ill treatment had become significantly less common. Observers
reported that police demonstrated greater restraint in their treatment of
detainees and protestors during the year due to legal reforms and government
directives.
[32]
Justice
Evans stated the following regarding the consideration of contradictory
evidence by administrative agencies in Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), at
paragraphs 16 and 17:
On the other hand, the reasons
given by administrative agencies are not to be read hypercritically by a court
(Medina v. Minister
of Employment and Immigration (1990), 120 N.R. 395; 12 Imm. L.R. (2d) 33
(F.C.A.)), nor are agencies required to refer to every piece of evidence that
they received that is contrary to their finding, and to explain how they dealt
with it (see, for example, Hassan v. Minister of Employment and
Immigration (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a
burden to impose upon administrative decision-makers who may be struggling with
a heavy case-load and inadequate resources. A statement by the agency in
its reasons for decision that, in making its findings, it considered all the
evidence before it, will often suffice to assure the parties, and a reviewing
court, that the agency directed itself to the totality of the evidence when
making its findings of fact.
However, the more important the
evidence that is not mentioned specifically and analyzed in the agency's
reasons, the more willing a court may be to infer from the silence that the
agency made an erroneous finding of fact "without regard to the
evidence": Bains v. Minister of Employment and Immigration
(1993), 63 F.T.R. 312 (T.D.). In other words, the agency's burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered
all the evidence will not suffice when the evidence omitted from any discussion
in the reasons appears squarely to contradict the agency's finding of
fact. Moreover, when the agency refers in some detail to evidence
supporting its finding, but is silent on evidence pointing to the opposite
conclusion, it may be easier to infer that the agency overlooked the
contradictory evidence when making its finding of fact.
[33]
I
am not satisfied that the officer addressed the applicant’s important
contradictory evidence that he was tortured by the police and feared returning
upon this basis. The officer also ignored the other documents produced by the
applicant (see paragraph 43 of the applicant’s memorandum of argument). In
addition, the officer did not address the material in the U.S. Department of
State 2004 Country Report on Human Rights Practices in Turkey in his
reasons. Mr. Justice Evans in Cepeda-Gutierrez stated that this type of
evidence must be addressed by the Board. It was relevant to the applicant’s
fear of persecution and the availability of state protection. The officer
stated that there was “not evidence that state protection would not have been
available to him at the time and there is evidence that state protection would
be available to him now.” This statement does not adequately address the
applicant’s claim that he had been tortured by the police and feared returning
upon this basis.
[34]
I
am of the view that because the evidence which the immigration officer failed
to address was important to the applicant’s claim, an erroneous finding of fact
was made “without regard to the evidence”. The officer made a patently
unreasonable error and the application for judicial review must be allowed and
the matter referred to a different officer for re-determination.
[35]
Because
of my finding on Issue 2, I need not deal with the other issue.
[36]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[37]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for re-determination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant provisions of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 are as follows:
|
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country of nationality, their country of former habitual residence,
would subject them personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
112. (1) A
person in Canada, other than a person referred to in subsection 115(1), may,
in accordance with the regulations, apply to the Minister for protection if
they are subject to a removal order that is in force or are named in a
certificate described in subsection 77(1).
(2) Despite
subsection (1), a person may not apply for protection if
(a) they are
the subject of an authority to proceed issued under section 15 of the
Extradition Act;
(b) they have
made a claim to refugee protection that has been determined under paragraph
101(1)(e) to be ineligible;
(c) in the
case of a person who has not left Canada since the application for protection
was rejected, the prescribed period has not expired; or
(d) in the
case of a person who has left Canada since the removal order came into
force, less than six months have passed since they left Canada after their claim to refugee protection was determined to
be ineligible, abandoned, withdrawn or rejected, or their application for protection
was rejected.
(3) Refugee
protection may not result from an application for protection if the person
(a) is
determined to be inadmissible on grounds of security, violating human or
international rights or organized criminality;
(b) is
determined to be inadmissible on grounds of serious criminality with respect
to a conviction in Canada punished by a term of imprisonment of at least two
years or with respect to a conviction outside Canada for an offence that, if
committed in Canada, would constitute an offence under an Act of Parliament
punishable by a maximum term of imprisonment of at least 10 years;
(c) made a
claim to refugee protection that was rejected on the basis of section F of
Article 1 of the Refugee Convention; or
(d) is named
in a certificate referred to in subsection 77(1).
113.
Consideration of an application for protection shall be as follows:
(a) an
applicant whose claim to refugee protection has been rejected may present
only new evidence that arose after the rejection or was not reasonably
available, or that the applicant could not reasonably have been expected in
the circumstances to have presented, at the time of the rejection;
(b) a hearing
may be held if the Minister, on the basis of prescribed factors, is of the
opinion that a hearing is required;
(c) in the
case of an applicant not described in subsection 112(3), consideration shall
be on the basis of sections 96 to 98;
(d) in the
case of an applicant described in subsection 112(3), consideration shall be
on the basis of the factors set out in section 97 and
(i) in the
case of an applicant for protection who is inadmissible on grounds of serious
criminality, whether they are a danger to the public in Canada, or
(ii) in the
case of any other applicant, whether the application should be refused
because of the nature and severity of acts committed by the applicant or
because of the danger that the applicant constitutes to the security of Canada.
114. (1) A
decision to allow the application for protection has
(a) in the
case of an applicant not described in subsection 112(3), the effect of
conferring refugee protection; and
(b) in the
case of an applicant described in subsection 112(3), the effect of staying
the removal order with respect to a country or place in respect of which the
applicant was determined to be in need of protection.
(2) If the
Minister is of the opinion that the circumstances surrounding a stay of the
enforcement of a removal order have changed, the Minister may re-examine, in
accordance with paragraph 113(d) and the regulations, the grounds on which
the application was allowed and may cancel the stay.
(3) If the
Minister is of the opinion that a decision to allow an application for
protection was obtained as a result of directly or indirectly misrepresenting
or withholding material facts on a relevant matter, the Minister may vacate
the decision.
(4) If a
decision is vacated under subsection (3), it is nullified and the application
for protection is deemed to have been rejected.
|
96.
A qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée:
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant:
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
(2)
A également qualité de personne à protéger la personne qui se trouve au
Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
112. (1) La
personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1)
peut, conformément aux règlements, demander la protection au ministre si elle
est visée par une mesure de renvoi ayant pris effet ou nommée au certificat
visé au paragraphe 77(1).
(2)
Elle n’est pas admise à demander la protection dans les cas suivants:
a) elle est
visée par un arrêté introductif d’instance pris au titre de l’article 15 de
la Loi sur l’extradition;
b) sa demande
d’asile a été jugée irrecevable au titre de l’alinéa 101(1)e);
c)
si elle n’a pas quitté le Canada après le rejet de sa demande de protection,
le délai prévu par règlement n’a pas expiré;
d) dans le cas
contraire, six mois ne se sont pas écoulés depuis son départ consécutif soit
au rejet de sa demande d’asile ou de protection, soit à un prononcé
d’irrecevabilité, de désistement ou de retrait de sa demande d’asile.
(3)
L’asile ne peut être conféré au demandeur dans les cas suivants:
a) il est
interdit de territoire pour raison de sécurité ou pour atteinte aux droits
humains ou internationaux ou criminalité organisée;
b) il est
interdit de territoire pour grande criminalité pour déclaration de
culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour
toute déclaration de culpabilité à l’extérieur du Canada pour une infraction
qui, commise au Canada, constituerait une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans;
c)
il a été débouté de sa demande d’asile au titre de la section F de l’article
premier de la Convention sur les réfugiés;
d)
il est nommé au certificat visé au paragraphe 77(1).
113.
Il est disposé de la demande comme il suit:
a)
le demandeur d’asile débouté ne peut présenter que des éléments de preuve
survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles
ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances,
de s’attendre à ce qu’il les ait présentés au moment du rejet;
b) une
audience peut être tenue si le ministre l’estime requis compte tenu des
facteurs réglementaires;
c)
s’agissant du demandeur non visé au paragraphe 112(3), sur la base des
articles 96 à 98;
d)
s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments
mentionnés à l’article 97 et, d’autre part:
(i)
soit du fait que le demandeur interdit de territoire pour grande criminalité
constitue un danger pour le public au Canada,
(ii)
soit, dans le cas de tout autre demandeur, du fait que la demande devrait
être rejetée en raison de la nature et de la gravité de ses actes passés ou
du danger qu’il constitue pour la sécurité du Canada.
114. (1) La
décision accordant la demande de protection a pour effet de conférer l’asile
au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au
paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure
de renvoi le visant.
(2)
Le ministre peut révoquer le sursis s’il estime, après examen, sur la base de
l’alinéa 113d) et conformément aux règlements, des motifs qui l’ont justifié,
que les circonstances l’ayant amené ont changé.
(3)
Le ministre peut annuler la décision ayant accordé la demande de protection
s’il estime qu’elle découle de présentations erronées sur un fait important
quant à un objet pertinent, ou de réticence sur ce fait.
(4)
La décision portant annulation emporte nullité de la décision initiale et la
demande de protection est réputée avoir été rejetée.
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The relevant provisions of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227 state:
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167. For the purpose of determining
whether a hearing is required under paragraph 113(b) of the Act, the factors
are the following:
(a) whether
there is evidence that raises a serious issue of the applicant's credibility
and is related to the factors set out in sections 96 and 97 of the Act;
(b) whether
the evidence is central to the decision with respect to the application for
protection; and
(c) whether
the evidence, if accepted, would justify allowing the application for
protection.
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167.
Pour l’application de l’alinéa 113b) de la Loi, les facteurs ci-après servent
à décider si la tenue d’une audience est requise:
a) l’existence
d’éléments de preuve relatifs aux éléments mentionnés aux articles 96 et 97 de
la Loi qui soulèvent une question importante en ce qui concerne la
crédibilité du demandeur;
b)
l’importance de ces éléments de preuve pour la prise de la décision relative
à la demande de protection;
c) la question
de savoir si ces éléments de preuve, à supposer qu’ils soient admis,
justifieraient que soit accordée la protection.
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