Date: 20051222
Docket: IMM-7041-05
Citation: 2005 FC 1734
OTTAWA, Ontario, December 22, 2005
PRESENT: THE HONOURABLE MR. JUSTICE PAUL U.C. ROULEAU
BETWEEN:
UZKAR, IMAM
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] These are two applications for the stay of a removal order issued against the applicant. These applications are respectively related to:
(a) the decision denying the pre-removal risk assessment (PRRA) application, (IMM-7041-05); and
(b) the decision refusing to exempt the applicant from the requirement to obtain his permanent resident visa outside Canada based on humanitarian and compassionate considerations (HC), (IMM-7042-05)
The date scheduled for the removal is December 27, 2005.
[2] These PRRA and HC decisions were made on October 11, 2005, by PRRA officer Jaqueline Schoepfer.
[3] The applicant is a citizen of Turkey. He is 40 years old, married and the father of three daughters. His wife, his three children, and his parents reside in Turkey.
[4] On June 1, 2001, he left the country and arrived in Canada on June 11, 2001. He went to the immigration authorities and claimed refugee status three months later, on September 10, 2001.
[5] On October 24, 2002, the Immigration and Refugee Board (IRB) determined that he was not a Convention refugee or a person in need of protection. The decision was based primarily on the applicant's lack of credibility.
[6] On March 28, 2003, the applicant's application for leave to appeal that decision was dismissed by this Court.
[8] On October 11, 2005, the officer dismissed the applicant's PRRA application and his HC application. The applicant filed applications for leave and for judicial review against those two decisions, attached to this application for stay.
[9] In Toth v. M.E.I., 86 N.R. 302, the Federal Court of Appeal retained three tests that it imported from case law involving injunctions, specifically from the decision by the Supreme Court of Canada in [1982] 1 S.C.R. 110">Manitoba (Attorney General v. Metropolitan Stores Ltd. [1982] 1 S.C.R. 110. These three tests are:
(a) there is a serious issue to be tried;
(b) there is irreparable harm; and
(c) the assessment of the balance of convenience.
[10] The three tests must be met for the Court to allow the requested stay. If only one of them is not met, this Court cannot grant the requested stay.
[11] In his arguments, the applicant submits that the officer who made the unfavourable decisions simply determined that the applicant was not credible, relying on the decision of the Board, even though additional documents were filed, addressed to the PRRA officer to support his allegation of fear if he were to return to his native country. He submits that she simply disregarded or dismissed outright the importance of that new evidence without assigning it any probative value.
[12] The applicant also raised the lack of objectivity on the part of the officer responsible for assessing the two applications, i.e. the application for exemption on humanitarian and compassionate grounds as well as the decision refusing the pre-removal risk assessment application.
[13] The applicant contends that he is at risk in Turkey because of the fact that: he is a Kurd and Alevi; he is wanted by the State authorities; several members of his family who are Kurdish and who like him fear persecution had been accepted as refugees in England; in his country there are human rights violations; Alevi are subjected to arrests and arbitrary detentions. He also points out his lack of assimilation and his refusal to renounce his origins and his religion.
[14] He further submits that the officer should have given him the opportunity to explain himself in person rather than simply arbitrarily disqualifying the new evidence, finding there was a lack of credibility.
[15] It would be appropriate at this point to identify a few salient facts. The applicant had resided in Istanbul for 14 years. He was married in the capital and, when he fled, he left behind a wife, three children, his mother and his father. In his story in reply to question 37 of his refugee claim, he indeed stated that in February he had decided to participate in activities of the HADEP, which organizes Kurdish cultural, musical and folk activities to prevent assimilation. On March 21, 2000, he had participated in a celebration organised by the HADEP. He stated that he had been harassed after being brought to the police station where he was interrogated and released several hours later. Further, he alleged that on July 24, 2001, he participated in a HADEP festival and that he had been arrested on the road home by police officers who detained him, beat him by kicking and punching him, and then released him. He stated that he left the country in June 2001.
[16] With respect to the issue of the applicant's assimilation and his refusal to renounce his origins and his religion, as the PRRA officer stated in her decision, even though he contends that he was not assimilated, the applicant did indeed live in Istanbul for 14 years and he did not establish that he was personally targeted by the Turkish authorities or that he was politically involved.
[17] Before the Refugee Protection Division, which had determined that he was inconsistent and lacked credibility, the applicant had stated that he had been detained in July 2000. He did not mention anything about being harassed in March 2000. The panel noted that in his initial story the applicant had failed to mention the weekly police visits at his home, the summons to the police station every week for months, as well as the charges of conspiring with members of terrorist organizations.
[18] With respect to the applicant's claim regarding the lack of objectivity on the part of the officer responsible for assessing the exemption on humanitarian grounds and also responsible for the pre-removal risk assessment, the Court has ruled on this subject on numerous occasions.
[19] The principle stated in Monemi v. Canada (Minister of Citizenship and Immigration [2004] F.C.J. No. 2004 was confirmed in Malekzai v. Canada (Minister of Citizenship and Immigration) (2004), 256 F.T.R. 199, where O'Keefe J. stated the following:
¶ 40 Furthermore, the respondent contends that immigration officers can and do perform various statutory obligations under IRPA. This Court, in Zolotareva v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1596 (QL), 2003 FC 1274, held that enforcement officers have the authority to make H & C determinations and in Haddad v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 579 (QL), 2003 FCT 405, that exercising one type of function does not disqualify an immigration officer from exercising another function. These cases, according to the respondent, undermine the applicant's argument that strict barriers or separation must be maintained between various statutory decision-makers and that a failure to do so in the War Crimes Unit raises the spectre of unfairness.
[20] The argument to the effect that the applicant's cousins and uncles had been accepted as refugees in other countries did not relieve the applicant of his burden to satisfy the Refugee Protection Division that he was a Convention refugee since we have no knowledge of the circumstances surrounding the determinations in the countries abroad with regard to those cousins and uncles.
[21] The applicant claims that the PRRA officer erred in failing to assign any probative value to the new documents filed at the PRRA hearing and in dismissing that new evidence outright. He submits that, if his credibility was being questioned, he should have been summoned so that he could provide further information.
[22] The new documents filed had been issued by Turkish authorities in February 2002 at the request of the applicant's father. A first document indicated that Mr. Uzkar had been implicated in a crime on March 21, 2000, and that there had been an arrest in absentia on July 24, 2000. A second document, also issued in February 2002, summoned the applicant to come to the police station on February 15, 2002, [TRANSLATION] "to make statements". Note that these two documents were available as of February 2002 and that at the time of his appearance before the Refugee Protection Division in October 2002, the applicant had not produced any of these documents at the hearing. I am satisfied that the PRRA officer analyzed this evidence before dismissing it. Further, she stated the following in her decision regarding those documents:
[TRANSLATION]
Mr. Uzkar stated that after he left Turkey, the police had given a summons in his name to his wife. He submitted a copy of that summons issued on February 10, 2002, asking him to report to the police station on February 15, 2002. He also filed a copy of a decision by the 1st State Security Court for a crime committed on March 21, 2000 (holding/carrying on activities on behalf of the illegal Organization M.L.K.P.). It should be noted that the "date of arrest in absentia (default)" was July 24, 2000.
The applicant did not file this evidence at his hearing before the IRB on October 8, 2002. It would have nevertheless been reasonable to expect him to file them and he would have had ample time to do so. He does not give any explanation about that omission. Further, he had not indicated in his PIF that he was wanted or that he had received a summons from the police, when he had been in constant communication with his wife. For all of these reasons, I do not assign any probative value to these two documents.
[23] It is obvious that the PRRA officer did not dismiss outright the documents in question. Further, it was not an issue of a lack of credibility as the applicant suggested. The officer analyzed them and stated that those documents had been available since February 2002 and that the applicant had not produced them before the Refugee Protection Division in October 2002. She also noted that there was no mention in the applicant's PIF to the effect that he was wanted. In fact, he had stated that he had not been summoned by the police and that he was in constant communication with his wife. Despite the doubts regarding the authenticity of those documents, the officer nevertheless examined the contents. Considering all of the shortcomings of those documents, the PRRA officer did not assign them any probative value.
[24] The applicant has not persuaded me that the officer's failure to summon him to provide explanations regarding the documents or that those documents in themselves are sufficient to set aside the decision and refer the matter for reconsideration.
[25] I have not been persuaded that there is anything to substantiate the existence of a serious issue to be tried.
[26] With respect to whether there is irreparable harm, in order for us to stay an individual's removal to his or her native country, we must be convinced that there is a risk and that he or she qualifies as a person in need of protection.
[27] In this case, the Refugee Protection Division had determined that the applicant was not credible and that he was not a refugee or a person in need of protection. It has been held that deportation is not a serious issue or irreparable harm and that, without a doubt, the applications for leave and judicial review, if allowed, will continue regardless of where the applicant may be.
[28] The PRRA officer, after a thorough review of the earlier decision, properly assessed the risks. She mentioned in her analysis that the applicant, while unable to contest the IRB's decision, did not offer any comment or clarification regarding the many contradictions raised. As she stated, it was appropriate to assess the applicant's situation considering the new evidence filed after his claim was denied.
[29] She points out that various documents state that the Turkish authorities cause trouble for leftists and Kurd militants but submits that this determination is not related to the applicant's personal case. She does not doubt that in fact there could be harassment, arrests and detention but that this treatment is primarily meant for Kurdish public figures. The applicant does not fit that profile.
[30] The PRRA officer also points out that Turks removed to their country are not persecuted simply because they or members of their family sought protection abroad. That allegation by the applicant is not supported by any recent objective documentary evidence.
[31] It is submitted that if the applicant were removed to Turkey, his removal would render his right to appeal nugatory. As Pinard J. stated in Kaur v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 36:
[32] With respect to the applicant's argument to the effect that her appeal would become moot because she will not be able to return to Canada if she is removed, a similar argument was recently dismissed by the Federal Court of Appeal in Ghanaseharan Selliah v. Canada (M.C.I.), 2004 FCA 2561. In that matter, the applicants argued that the removal would render their appeal nugatory. The Court of Appeal stated:
¶ 6 With respect to the applicant's argument to the effect that her appeal would become moot because she will not be able to return to Canada if she is removed, a similar argument was recently dismissed by the Federal Court of Appeal in Ghanaseharan Selliah v. Canada (M.C.I.), 2004 FCA 2561. In that matter, the applicants argued that the removal would render their appeal nugatory. The Court of Appeal stated:
Since the appeal can be ably conducted by experienced counsel in the absence of the appellants and since, if the appeal is successful, the appellants will probably be permitted to return to Canada at public expense, I cannot accept that removal renders their right of appeal nugatory.
[33] With respect to the assessment of the balance of convenience, given my finding on the serious question and irreparable harm, I need not address it.
ORDER
The application for a stay is dismissed.
"Paul U.C. Rouleau"
Certified true translation
Kelley A. Harvey, BCL, LLB
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