Date: 20041029
Docket: IMM-2722-03
Citation: 2004 FC 1535
Vancouver, British Columbia, this 29th day of October 2004
Present: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
VEYSEL TURKCAN, ENGIN TURKCAN
BEYHAN PEKTAS, ERSIN TURKCAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Veysel Turkcan (the "Principal Applicant"), his wife Beyhan Pektas and their minor son Ersin Turkcan (the "Applicants"), and their adult son Engin Turkcan (the "adult son") seek judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"), dated March 21, 2003. In that decision, the Board determined that they were not Convention refugees nor persons in need of protection pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended ("IRPA").
[2] The Applicants are citizens of Turkey. The basis of the Principal Applicant's claim was fear of the Hezbollah. In his Personal Information Form ("PIF"), he gave details about the basis of that fear, beginning with visits to his business in the late fall of 1998 by unknown men who wanted to help him "expand" his business. There were further visits and the men ultimately identified themselves as members of the "Hezbollah Salvation Association". The Principal Applicant said that these men returned to his home in 2000 and forced him to sign six blank cheques, threatening to kill him if he refused. There had been an earlier threat to kill the Principal Applicant and his family if he went to the police.
[3] In June 2000, the Applicant went to the United States. He arrived in Canada on August 1, 2000 and claimed Convention refugee status.
[4] The Applicant began to move his family frequently and finally divorced his wife in order to protect her and their children.
[5] In January 2001, the adult son returned to Ankara from school. He moved between houses of various relatives and did not live with his mother and brother. He said that he received threats from the Hezbollah and inquiries about his father's whereabouts. He left Turkey for Canada on February 28, 2001 and arrived in Canada on March 1, 2001.
[6] The wife said that she went to live with her parents after she had been visited by a member of the Hezbollah who had asked about her husband. She said that she rarely left the house and her younger son rarely went to school. After obtaining passports and visas to the United States, she and the minor son left Turkey on August 9, 2001, arriving in Canada on August 10, 2001. She then claimed Convention refugee status.
[7] The Principal Applicant, his wife and the adult son testified before the Board. The wife attended during the first sitting but became ill and was transported to a hospital by ambulance. She was later examined by a psychologist who recommended that the hearing be postponed. The Board denied this request because there was no assurance that the wife's condition would improve at a later date.
[8] Subsequently, counsel for the wife requested a de novo hearing on the grounds that the wife would be traumatized by appearing before the same panel. This request was denied.
[9] Some weeks later, counsel for the Applicants suggested some options to accommodate the concerns of the female Applicant. One of the suggestions was to separate the claim of the Principal Applicant and his wife, to relieve her from the stress of listening to her husband's testimony. The Board denied these requests and advised that the wife could decide to waive her right to be present throughout the hearing, but otherwise the Board expected her to testify on October 15, 2002.
[10] Following consultation with counsel, the wife advised that she wished to waive her right to be present throughout the hearing. She absented herself while her husband testified and returned to give her evidence. She chose not to attend for the final sitting of the hearing.
[11] The Board accepted that the Applicants were Turkish citizens but rejected the claim of the Principal Applicant on credibility findings, particularly the claim concerning the actions and threats of the Hezbollah. It concluded that the claims of the wife and minor son depended upon its acceptance of the Principal Applicant's account concerning the Hezbollah. Since it rejected that evidence, it found that there was no reasonable chance that the wife and minor son will be persecuted by the Hezbollah if they return to Turkey.
[12] The Board also rejected the claim of the adult male son. That claim was based upon fear of the Hezbollah and opposition to service in the military. The Board found that he would not be called upon to engage in combat during his military service. It noted that in his PIF, the adult son did not say that he is a pacificist and conscientious objector. It found that his evidence at the hearing addressed broader claims than recorded in his PIF narrative where he stated a specific objection to the Turkish military. It rejected his evidence as being non-credible.
[13] The Applicants now argue that the Board erred in its treatment of the evidence tendered by the Principal Applicant and the adult son.
[14] The Applicants further submit that the Board erred in refusing the female Applicant a de novo hearing. The Applicants argue that since the hearing began on April 2, 2002, prior to the implementation of IRPA, the former Immigration Act, R.S.C. 1985, c. I-2 as amended, applies. Section 69(2) of that Act provides as follows:
| 69(2) Subject to subsections (3) and (3.1), proceedings before the Refugee Division shall
be held in the presence of the person who is the subject of the proceedings, whereverpracticable, and be conducted in camera or, if an application therefor is made, in public.
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69(2)Sous réserve des paragraphes (3) et (3.1), la section du statut tient ses séances à huis clos ou, sur demande en ce sens, en public, et dans la mesure du possible en présence de l'intéressé.
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[15] The Applicants also rely on section 348(6) of the Immigration and Refugee Protection Regulations, SOR/2002-227 which provides as follows:
| 348(6) The validity or lawfulness of a decision or act made under the former Act that is the subject of a judicial review procedure or appeal referred to in subsection (1) is determined in accordance with the provisions of the former Act.
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348(6) La légalité de la décision ou de la mesure prise sous le régime de l'ancienne loi faisant l'objet de la demande de contrôle judiciaire ou de l'appel visé au paragraphe (1) est décidée sous le régime de l'ancienne loi.
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[16] The Applicant argues that the Board erred in refusing to give her a de novo hearing and effectively gave her no option but to waive her right to attend the hearing. She argues that the Board here erred in its interpretation of the words "whenever practicable" and relies, in this regard, on the decisions in Phillip v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 49 and Azakir v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1521.
[17] Alternatively, the Applicant argues that if her physical presence is not required by the former Immigration Act, supra, it is a requirement of "fundamental justice" pursuant to section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), c. 11 (the "Charter"). In this regard, she relies on R. v. Tran, [1994] 2 S.C.R. 951.
[18] This application raises two separate issues. First, did the Board err in refusing the postponements sought by the female Applicant and thereby compel her to waive her right to be present throughout the hearing. Second, did the Board misinterpret or ignore the evidence and make potentially unreasonable findings relative to the Principal Applicant and the adult son.
[19] Upon my review of the record, including the transcript of the hearing, I am satisfied that the Board did not err in refusing the request of the female Applicant for a lengthy postponement or a new hearing before a different panel. The Board is entitled to establish its own procedures, within the limits of the applicable statute, that is the former Immigration Act, supra, and regulations. That right co-exists with section 69(2) of that legislation which provides a substantive but less than absolute right for a concerned person to be present during a hearing. The words "whenever practicable", in my opinion, give the Board a discretion as to whether or not a concerned person will be present for the whole hearing.
[20] I do not accept the alternative argument made by the female Applicant that her section 7 Charter rights were breached as a consequence of her non-attendance for the whole hearing. The proceedings before the Board were administrative in nature, not a trial upon a criminal charge which was the situation in Tran, supra.
[21] As for the arguments raised by the Principal Applicant and the adult son, these are essentially disagreements with the findings reached by the Board. The Board is mandated to weigh the evidence before it. The applicable standard of review is patent unreasonableness. I am satisfied that there was evidence before the Board that supports its decision. The Applicants have failed to show a basis for judicial intervention.
[22] In the result, this application for judicial review is dismissed. There is no question for certification arising.
ORDER
This application for judicial review is dismissed. There is no question for certification arising.
(Sgd.) "E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2722-03
STYLE OF CAUSE: VEYSEL TURKCAN, ENGIN TURKCAN, BEYHAN
PEKTAS, ERSIN TURKCAN
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 29, 2004
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
DATED: October 29, 2004
APPEARANCES:
Micheal Crane
For the Applicants
Marcel Larouche
For the Respondent
SOLICITORS OF RECORD:
Micheal Crane
Barrister & Solicitor
Toronto, ON
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
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