Date: 20100601
Docket: IMM-5133-09
Citation: 2010 FC 583
Ottawa, Ontario, June 1, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MUSTAFA
SELDUZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND THE
MINISTER PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Raza
v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 385, 162 A.C.W.S. (3d) 1013:
[12] A PRRA application by a failed refugee claimant is not
an appeal or reconsideration of the decision of the RPD to reject a claim for
refugee protection. Nevertheless, it may require consideration of some or all
of the same factual and legal issues as a claim for refugee protection. In such
cases there is an obvious risk of wasteful and potentially abusive
relitigation. The IRPA mitigates that risk by limiting the evidence that may be
presented to the PRRA officer. The limitation is found in paragraph 113(a)
of the IRPA, which reads as follows:
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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; [… ] .
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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; […] .
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(As specified by the Federal Court of Appeal in
a unanimous decision, penned by Justice Karen Sharlow).
[2]
The
guiding principle in respect of new evidence submitted for the Pre-Removal Risk
Assessment (PRRA) is clearly stated by Justice Judith Snider in Perez v. Canada (Minister of Citizenship and
Immigration), 2006 FC
1379, 153 A.C.W.S. (3d) 421:
[5] …
The purpose of the PRRA is not to reargue the facts that were before the RPD.
The decision of the RPD is to be considered as final with respect to the issue
of protection under s. 96 or s. 97, subject only to the possibility that new
evidence demonstrates that the applicant would be exposed to a new, different
or additional risk that could not have been contemplated at the time of the RPD
decision. Thus, for example, the outbreak of civil war in a country or the
imposition of a new law could materially change the situation of an applicant;
in such situations the PRRA provides the vehicle for assessing those
newly-asserted risks.
II. Introduction
[3]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of an October 2, 2009
decision of a PRRA officer determining that the Applicant is neither a
Convention refugee nor a person in need of protection.
III. Background
[4]
The
Applicant, Mr. Mustafa Selduz, is a 46 year old citizen of Turkey who claimed
refugee status based on his Kurdish ethnicity and Alevi religious beliefs. Mr.
Selduz claims that his village was monitored by the Turkish military as a
result of conflicts with the separatist Kurdistan Workers' Party (PKK). Mr.
Selduz alleges he was arrested in 1999, 2002, 2004, 2005 and 2006 by the
Turkish police. Mr. Selduz also alleges he was tortured. Mr. Selduz states he
left Turkey with the
help of an agent. He then travelled to the United States on July 20, 2006 and
remained there for approximately one week before entering Canada on July 27,
2006.
[5]
The
Applicant’s claim for refugee protection was rejected by the Refugee Protection
Division of the Immigration and Refugee Board (RPD) due to a number of
credibility concerns including inconsistencies between his Personal Information
Form (PIF) and his oral testimony, in addition, his failure to seek medical
attention, delay in leaving Turkey, and his ability to leave Turkey with a
valid Turkish passport (as specified in the RPD decision according to an April
2002 Report by the Netherlands Delegation of the Council of the European Union,
before a Turkish passport is issued by authorities to any Turkish citizen,
police clearance is required). The RPD was also critical of the Applicant’s
failure to claim refugee protection, at the first opportunity, in the United
States.
The RPD relied on documentary evidence to conclude that the Applicant would not
be at risk of persecution if removed from Turkey.
IV. Decision under Review
[6]
The
Applicant submitted three pieces of evidence which were not placed before the
RPD; this evidence consisted of two arrest warrants, one from 1999 and the
other from 2007 and a recent medical report analyzing scars on the Applicant’s
body.
[7]
The
officer refused to consider the 1999 arrest warrant on the grounds that it
could reasonably have been placed before the RPD.
[8]
The
officer rejected the PRRA on the grounds that the 2007 warrant and the medical
report were insufficient to overcome the credibility findings of the RPD.
Specifically, the officer assigned the medical report little weight on the
grounds that it was based largely on hearsay (the report states the injuries
are consistent with the treatment outlined in the Applicant’s PIF narrative)
and lacked independent analysis.
[9]
The
officer also reviewed the new country condition documents produced by the
Applicant and held that the country conditions in Turkey had not
significantly changed since the RPD’s decision.
[10]
The
officer found that the Applicant’s submissions were largely a restatement of
the arguments made before the RPD and pointed out that a PRRA is not meant to
be an appeal of the RPD’s decision.
V. Issues
[11]
1)
Did the officer err by failing to hold an oral hearing?
2)
Did the officer make unreasonable findings of fact?
3)
Did the officer fail to consider the updated submissions?
VI. Relevant Legislative Provisions
[12]
PRRA
officers may hold oral hearings pursuant to subsection 113(b) of the
IRPA:
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Consideration of application
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.
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Examen de la demande
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.
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[13]
Typically,
oral hearings are held when the requirements in section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations) are met:
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Hearing - prescribed factors
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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Facteurs pour la tenue d’une audience
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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VII. Positions of the Parties
Applicant’s Position
1) Did the
officer err by failing to hold an oral hearing?
[14]
The
Applicant submits the officer came to her decision based on implicit
credibility findings which entitle Mr. Selduz to an oral hearing. The Applicant
contends the new evidence casts doubt on the RPD’s findings that Mr. Selduz is
not at risk and, if accepted, would have justified allowing the application for
protection. The Applicant argues the officer must have doubted the veracity of
the arrest warrants because they clearly show Mr. Selduz is in danger. The
Applicant cites a number of cases from the Federal Court showing that PRRA
decisions have been quashed when decision-makers mistake credibility findings
for sufficiency of evidence.
2) Did the
officer make unreasonable findings of fact?
[15]
The
Applicant submits the officer erred by finding there is insufficient evidence
to establish Mr. Selduz is being sought by the authorities. The arrest
warrants, if accepted as credible evidence, clearly show that Mr. Selduz is
sought.
3) Did the
officer fail to consider the updated submissions?
[16]
The
Applicant notes the updated PRRA submissions are not mentioned in the officer’s
list of documents which were consulted in rendering her decision. The
Applicant submits this is a reviewable error because those submissions
explicitly requested an oral hearing if the officer questioned the authenticity
of the new documents. In addition, the Applicant submits the submissions link
the new evidence to the newly submitted country condition documents showing Mr.
Selduz fits the profile of someone at risk of persecution in Turkey.
Respondent’s
Position
1) Did the
officer err by failing to hold an oral hearing?
[17]
The
Respondent submits that oral hearings in the context of PRRA applications are
only held in exceptional cases where issues of credibility are “central” to the
decision in question. The Respondent cites jurisprudence showing that claimants
are entitled to oral hearings only if the decision would be unfounded but for a
crucial finding of credibility.
[18]
The
Respondent submits the officer’s decision was not based on the Applicant’s
credibility, but rather that the evidence was insufficient to support a
positive finding. The Respondent argues the true issue in this case is the
weight to be assigned to the evidence and submits it was reasonably open to the
officer to ascribe little weight to the warrants and medical opinion.
2) Did the
officer make unreasonable findings of fact?
[19]
The
Respondent submits the officer found the Applicant articulated essentially the
same risks as had been expressed before the RPD and the new evidence provided
was insufficient to come to a different finding from the RPD.
[20]
The
Respondent submits a PRRA is not intended to be an appeal of a negative RPD
decision. The Respondent argues the Applicant failed to produce sufficient new
evidence showing he would be at risk if returned to Turkey.
[21]
The
Respondent argues the officer clearly explained why she assigned little weight
to the new evidence; namely, that the two arrest warrants had discrepancies in
the alleged crime committed. The Respondent submits the officer reasonably
found the Applicant had not rebutted the RPD’s finding regarding the apparent
ease with which Mr. Selduz left Turkey.
3) Did the
officer fail to consider the updated submissions?
[22]
The
Respondent submits it is clear the officer considered the new submissions, as
she found counsel had essentially restated the submissions provided to the RPD.
Applicant’s
Reply
[23]
The
Applicant submits the officer’s affidavit should be given little or no weight,
as there is jurisprudence holding it is inappropriate for officers to justify
their decisions with the benefit of hindsight.
VIII. Standard of Review
[24]
The
Court agrees with the Respondent that the question of whether an oral hearing
ought to have been held raises a question of procedural fairness which should
be reviewed on a standard of correctness (Olson v. Canada (Minister of
Public Safety and Emergency Preparedness), 2007 FC 458, 157
A.C.W.S. (3d) 593).
[25]
The
remaining two issues impugn the officer’s conclusions on questions of mixed
fact and law and should be reviewed on a standard of reasonableness.
IX. Analysis
1) Did the
officer err by failing to hold an oral hearing?
[26]
The
officer noted the purpose behind the PRRA system by citing the case of Perez,
above, wherein Justice Snider held:
[5] It
is well-established that a PRRA is not intended to be an appeal of a decision
of the RPD (Kaybaki v. Canada (Solicitor General of Canada), 2004
F.C. 32 at para. 11; Yousef v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 1101 at para. 21 (F.C.); Klais v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 949 at
para. 14 (F.C.)). The purpose of the PRRA is not to reargue the facts that were
before the RPD. The decision of the RPD is to be considered as final with
respect to the issue of protection under s. 96 or s. 97, subject only to the
possibility that new evidence demonstrates that the applicant would be exposed
to a new, different or additional risk that could not have been contemplated at
the time of the RPD decision. Thus, for example, the outbreak of civil war in a
country or the imposition of a new law could materially change the situation of
an applicant; in such situations the PRRA provides the vehicle for assessing
those newly-asserted risks.
[27]
The
Court draws instruction regarding the purpose behind section 167 of the Regulations
from the judgment of Justice Michael Phelan in Tekie v. Canada (Minister of
Citizenship and Immigration), 2005 FC 27, 50 Imm. L.R. (3d) 306, wherein
it was held:
[16] In my view, section 167 becomes operative where
credibility is an issue which could result in a negative PRRA decision. The
intent of the provision is to allow an Applicant to face any credibility
concern which may be put in issue.
[28]
The
question of when a credibility concern is “put in issue” was answered in the
case of Abdou v. Canada (Solicitor General), 2004 FC 752, 135
A.C.W.S. (3d) 298, wherein Justice Luc Martineau held:
[3] … These factors, appearing in
section 167 of the Immigration and Refugee Protection Regulations,
SOR/2002-227, provide that the evidence must raise a serious and crucial issue
of the applicant's credibility for a hearing to be required. Therefore, there
is a right to a hearing in PRRA procedure provided that credibility is the key
element on which the officer based his or her decision and that, without a critical
finding on credibility, the decision would have been unfounded…
[29]
Although
the officer’s decision refers to the RPD’s credibility findings, the case of Selliah
v. Canada (Minister of Citizenship and Immigration), 2004 FC 872, 256
F.T.R. 53, aff’d 2005 FCA 160, 339 N.R. 233 shows that references to earlier
credibility findings do not necessarily make credibility a central part of a
PRRA decision:
[25] The respondent submits that
these factors are cumulative due to the use of the conjunctive "and"
in section 167 of the Regulations. The applicants' PRRA submissions consisted
of additional arguments to their PDRCC submissions and reiterated the
applicants story, and are not exceptional. The respondent submits that the
Officer based her decision on the lack of evidence demonstrating personalized
risk, not the credibility of the applicants. The issue of credibility was not
central to the PRRA Officer's decision. The respondent argues that since the
decision of the PRRA Officer does not raise a serious issue of credibility,
there was no duty on the PRRA Officer to hold an oral hearing. The Court has
interpreted a serious issue of credibility as an issue of credibility that is
central to the decision in question, which is not the case here.
[26] I find that though the PRRA
decision does contain references to the adverse credibility findings made by
the CRDD, I am satisfied that the Officer did not import into her decision the
credibility findings of the CRDD and that such references in the Officer's
reasons were not determinative of her decision. The Officer did not err in
considering the CRDD decision, indeed in the context of a PRRA application it
was appropriate for the Officer to do so. Section 113(c) of the IRPA
provides that the factors set out in sections 96 and 97 of the IRPA shall form
the basis for consideration of an application for protection.
[30]
The
difficulty in cases of this type was aptly summarized by Justice James Russell
in Latifi v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1388, 58 Imm. L.R. (3d) 118:
[60] It is very difficult to separate “sufficiency” from
“credibility” in the context of a PRRA decision that supersedes a negative
refugee determination that was based upon credibility. On the present facts I
do believe that the Officer was not sufficiently alive to the distinction so
that credibility issues became enmeshed with sufficiency issues.
[31]
The
officer held that the new evidence, although probative, was insufficient to
challenge the decision of the RPD. Credibility is not in issue in this case
because the Applicant made the same allegations as were rejected by the RPD. In
order for the Applicant to get a positive PRRA decision, he would have to
respond to the totality of the RPD’s findings. The granting of an oral hearing
in these circumstances would amount to a re-determination of the initial
process and, as Perez, above, states, that is not the proper role of a
PRRA.
2) Did the
officer make unreasonable findings of fact?
[32]
The
Applicant links this issue to the one dealt with above, stating that these
findings could have been avoided had an oral hearing been held. The Applicant
is essentially arguing that an arrest warrant is so prima facie probative
that it must either be accepted as credible and firmly establish risk, or be
disbelieved and lead to an oral hearing.
[33]
It
appears the Applicant is trying to cast the sufficiency of the evidence in
terms of a credibility finding. In the case of Ferguson v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1067, 74 Imm. L.R. (3d) 306, Justice Russel
Zinn explained the difference between insufficiency of evidence and
credibility. Justice Zinn applied his findings to the facts of that case as
follows:
[34] It is also my view that there is nothing in the
officer's decision under review which would indicate that any part of it was
based on the Applicant's credibility. The officer neither believes nor
disbelieves that the Applicant is lesbian – he is unconvinced. He states
that there is insufficient objective evidence to establish that she is
lesbian. In short, he found that there was some evidence – the statement
of counsel – but that it was insufficient to prove, on the balance of
probabilities, that Ms. Ferguson was lesbian. In my view, that determination
does not bring into question the Applicant’s credibility.
[34]
The
officer accepted the new evidence as credible, but remained unconvinced that it
establishes risk. The officer was unconvinced due to various problems which
have arisen during the Applicant’s immigration process; for instance, the 2007
arrest warrant does not rebut the RPD’s finding regarding Mr. Selduz’ ability
to leave Turkey. Although the Applicant submits that Mr. Selduz has
consistently maintained that he was aided by a human smuggler, this explanation
was rejected by the RPD.
[35]
The
standard of reasonableness dictates that this Court is not to reweigh the
evidence that was before the officer. It is the Court’s conclusion that the
officer’s decision has a logical underpinning. To quash the decision in the
present circumstances would be to effectively dictate a decision to the
officer.
3) Did the
officer fail to consider the updated submissions?
[36]
Although
it is unfortunate that the officer failed to mention the updated PRRA
submissions, the Court cannot find a reviewable error on this point. The
Applicant’s updated submissions introduced the new evidence and requested an
oral hearing if concerns arose regarding the documents. The new submissions
also link the new evidence to country condition documents showing that persons
suspected of separatist activities are at risk.
[37]
When
one reads the decision as a whole, it is clear that the officer performed the
analysis that was sought in the updated submissions. The officer accepted the
new evidence; found it did not warrant an oral hearing as Mr. Selduz’
credibility was not in issue and found that the conditions in Turkey had not
significantly changed since the RPD decision.
X. Conclusion
[38]
The
legislation and jurisprudence are clear that a PRRA is not intended to be an
appeal of an RPD decision. The RPD based its negative decision on a large
number of factors. Its decision must be considered to be determinative in the
absence of new evidence. Even though the new evidence was accepted in this
case, it was insufficient to overcome the manifold problems recognized by the
RPD. If an oral hearing was granted, the officer would be forced to
re-determine the entirety of the RPD’s decision, which, as is clear from the
jurisprudence, it may not do without new evidence by which to reach a different
finding from that of the RPD.
[39]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The
application for judicial review be dismissed;
2.
No
serious question of general importance be certified.
“Michel M.J. Shore”
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