Date: 20101104
Docket: IMM-4974-09
Citation: 2010 FC 1089
Ottawa, Ontario, November
4, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MUSTAFA
ORMANKAYA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
the decision of a pre-removal risk assessment officer (the officer), dated July
15, 2009, which determined that the applicant would not be subject to risk of
persecution, danger of torture, risk to life or risk of cruel and unusual
treatment or punishment if returned to Turkey.
[2]
The
applicant requests an order setting aside the officer’s decision and referring the
matter back to a different pre-removal risk assessment (PRRA) officer for
redetermination.
Background
[3]
The
applicant is a citizen of Turkey and a member of the Alevi faith. His wife
and all seven of his children remain in Turkey. He alleges
that he fears the Turkish authorities and Sunni extremists on the basis of his
Alevi religion and his perceived Kurdish identity.
[4]
While
completing his school and military service, he alleges he was assaulted and
abused by Sunni extremists because of his Alevi religion. After that, he worked
on his family’s farm and then became a truck driver in 1988. In the course of
his work, the applicant travelled throughout Turkey and also to
Iran and Iraq. Because he looks
like a Kurd, he alleges that authorities often arrested, questioned and
searched him. Between August 2000 and May 2005, the applicant alleges he was
detained four times by authorities who suspected him of collaborating with the
PKK, the Kurdish opposition party. In January 2003, a Turkish nationalist group
also confronted him and accused him of helping the PKK.
[5]
On
September 15, 2004, he was issued a Turkish passport and on June 13, 2005, he
was issued a Canadian work permit. On July 4, 2005, the applicant entered Canada at Pearson Airport.
[6]
On
August 10, 2005, the applicant made a claim for refugee protection. On December
29, 2006, his claim was rejected by the Refugee Protection Division of the
Immigration and Refugee Board (the Board).
[7]
The
Board had concluded in general that the applicant had not established that his
fears were objectively well founded. There was a lack of objective evidence to
support his claims that he had been accused of illegal or anti-government
activities and the issuance of a passport to him further diluted the notion
that he was considered an enemy to authorities. The Board also found that his
credibility was undermined when it came to his allegations of detentions and
assaults by the authorities and when it came to his allegations of mistreatment
while at school and in the military.
[8]
The
Board did consider that as a truck driver in Southeastern Turkey, it was
plausible that he had been stopped and subjected to short and random
detentions, but did not find that the applicant had been singled out or
personally targeted. The Board finally considered the country conditions but
did not find that general treatment of Kurds and Alevi in Turkey amounted to
systematic persecution.
[9]
On
April 18, 2007, this Court dismissed his application for leave and for judicial
review of the Board’s decision.
[10]
On
October 10, 2007, an application for an immigration visa exception on
humanitarian and compassionate (H&C) grounds was filed in Canada. That
application was subsequently denied.
[11]
The
applicant was offered the PRRA on July 28, 2007.
The Officer’s Decision
[12]
It
was the officer’s determination that while the applicant had presented some new
evidence, the fears he alleged at the PRRA hearing were the same fears alleged
before the Board. The officer reviewed those fears again, reviewed the
conclusions made by the Board and then considered the applicant’s new evidence
in light of those conclusions and the updated country conditions.
[13]
The
officer considered the applicant’s new documentary evidence regarding the
current situation in Turkey, but concluded that Kurds are not at a
greater risk than other ethnic groups so long as they do not promote the
creation of a separate state. This did not apply to the applicant since he had
not established that he was ever a member or a supporter of a political or
separatist group. The officer also concluded that the applicant’s fears related
to his religious beliefs were not supported.
[14]
In
order to demonstrate that he was wanted by Turkish authorities, the applicant
submitted a photocopy of a 2007 arrest warrant and its translation which indicated
he had been charged with a political crime. The officer attached very little
weight to this evidence because there was no original and because the document
was very sparse on details and had an illegible security seal. In the end, the
officer was not able to conclude that the applicant had been charged with a
political crime.
[15]
One
new fear raised by the applicant was that his claim for asylum in Canada itself would
now cause him to be targeted as a traitor upon return to Turkey. However,
the officer noted that the Canadian government does not disclose such
information and that in any event, there are no indications that Turkish
nationals are persecuted in Turkey purely because they applied for asylum
abroad. On the whole, the officer concluded the applicant would not be subject
to risk of persecution, danger of torture, risk to life or risk of cruel and
unusual treatment or punishment if returned to Turkey.
Issues
[16]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the officer err
in rejecting the warrant on the basis that an original was not provided?
3. Did the officer
breach procedural fairness by failing to provide him with an opportunity to
present the officer with the warrant?
4. Did the officer err
by engaging in a selective review of the evidence?
Applicant’s Written Submissions
[17]
The
applicant submits that it was not clear how the officer reached his decision to
afford little weight to the warrant. Since he did not indicate that he was
questioning the credibility of the documents, he could not just ignore their
content. The officer also had a letter from the applicant’s counsel indicating
that he had the original.
[18]
The
officer also erred by implying that genuine Turkish arrest warrants refer to
the section of the act for an offence and the date of the offence. Yet the
officer is no expert on such matters and did not refer to any documentary
evidence. The applicant submits that the officer improperly rejected evidence
for technical reasons, based on speculation. The fact that the warrant went to
the heart of the applicant’s alleged fears of persecution meant that the
officer should have taken extra care in handling it. Furthermore, in such
circumstances, where the officer had reason to believe that applicant’s counsel
may have had the original, it was incumbent on the officer to obtain it.
Failure to do so was a breach of procedural fairness.
[19]
Finally,
the applicant submits that the officer erred in his review of the country
conditions. The overwhelming portion of the evidence indicates that Kurds are
persecuted not because they are separatists but because of their expression of
Kurdish identity. Even though the applicant is not Kurdish, he is often
perceived to be by authorities and ultra-nationalist groups.
Respondent’s Written Submissions
[20]
The
officer’s decision was reasonable. Contrary to the applicant’s submission, the
officer did not reject the copy of the arrest warrant, but reasonably assigned
it little weight. The lack of an original was one factor among many that
detracted from its weight. Without the original, it was hard to verify the
seal. The officer also considered the lack of an offence date, any reference to
a section or act and the absence of any other evidence showing that the
applicant was a political activist.
[21]
While
the officer was informed that the original would be provided, it was not. The
applicant has now provided two other documents which were not before the
officer. The officer was not obliged to consider evidence not before her. Nor
did the officer have a duty to seek out further information from the applicant.
The applicant cannot complain of breaches of procedural fairness because he did
not lead all the relevant or the best evidence in his control.
[22]
The
officer considered the entirety of the documentary evidence. The fact that she
came to a conclusion that is different from what the applicant desires does not
mean that the officer selectively considered the information. The officer found
that the applicant did not fit the profile of someone likely to be targeted by Turkish
authorities or any other group. The existence of some information in the
documents which could be taken to support the applicant’s position does not
mean that the information was ignored.
Analysis and Decision
[23]
Issue
1
What is the appropriate standard
of review?
Generally, the standard of
review for a PRRA decision is that of reasonableness (see Wang v. Canada (Minister of
Citizenship and Immigration), 2010 FC 799 at paragraph 11). Under this
standard, the Court should not interfere unless the officer’s conclusions do
not fall within the range of possible acceptable outcomes (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 47, 53, 55 and 62).
[24]
However,
any issues of procedural fairness in assessing a PRRA application will be
determined on the correctness standard (see Wang above, at paragraph 11)
Under the correctness standard, the Court will undertake its own analysis of
the questions and reach its own conclusion (see Dunsmuir above, at paragraph
50).
[25]
Issue
2
Did the
officer err in rejecting the warrant on the basis that an original was not
provided?
With respect to the applicant’s
preliminary argument concerning original documents not being before the
officer, I reject this argument as it is up to the applicant to put documents
before the officer.
[26]
I
cannot accept that the error alleged by the applicant is established. First, I
note that the warrant was not rejected, but rather given little weight.
[27]
Secondly,
the officer stated several reasons for affording little weight to the arrest
warrant. Lack of an original was merely one of those factors. Indeed, there
were several aspects which were reasonably considered as detracting from the
probative value of the evidence. Most notably, in my view, was the fact that in
the section of the form with the heading, charges laid against the suspect, it
simply read political crime. Such a vague indication of the charge is not probative
of determining any actual sanction which might be forthcoming.
[28]
The
applicant says the officer implicitly speculated that a genuine Turkish warrant
would have provided a reference to the date of the crime and the section of the
act under which the charge arose. While the officer did note the omitted
elements, in my view, this was simply the officer’s articulation of his primary
concern with the document; that it lacked detail. Since officers are encouraged
to articulate their analysis, I cannot fault the officer here for doing so.
There is simply no indication, nor can I assume, that the officer improperly
imposed a Canadian standard on the warrant.
[29]
It
was also reasonable for the officer to have been somewhat concerned about the
lack of the original document given the officer’s discussion regarding the
illegibility of the seal.
[30]
The
officer also is taken to have viewed this evidence in light of the applicant’s
admission that he was never a member or supporter of any political opposition
or separatist party. In the context of the entire decision, the decision to
afford little weight to the document was within the range of possible
acceptable outcomes and it is not for the Court to interfere in such a
decision.
[31]
Issue
3
Did the
officer breach procedural fairness by failing to provide him with an
opportunity to present the officer with the warrant?
The onus is on the applicant to
ensure that all relevant evidence is before the PRRA officer. The PRRA officer
is only obliged to consider evidence that is before her. She is not required to
solicit the applicant for better or additional evidence (see Selliah v. Canada (Minister of
Citizenship and Immigration), 2004 FC 872, 37 Imm. L.R. (3d) 263 at
paragraph 22, aff’d 2005 FCA 160, 50 Imm. L.R. (3d) 105, Lam v. Canada (Minister of
Citizenship and Immigration) (1998), 152 F.T.R. 316 (F.C.T.D.), [1998]
F.C.J. No. 1239 at paragraph 4).
[32]
The
applicant in the present case cannot complain of a breach of fairness because
he did not submit all the relevant evidence he may have had.
[33]
The
applicant’s reliance on Haghighi v. Canada (Minister of
Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.) is misplaced. In
that case, the Court determined that it was the officer determining an H&C
application who had a duty to disclose to the applicant a risk assessment
report. The case did not discuss any duty on the officer to solicit evidence
that the applicant failed to provide at the outset, as was the case here. Nor
are the portions of Haghighi above decision discussing a duty to invite
response to credibility concerns applicable here. The PRRA officer made no
findings of credibility which would require an oral hearing.
[34]
While
the applicant has expounded on the benefits of getting the most up-to-date
information, I cannot impose a novel duty on PRRA officers which does not
exist. For the above reasons, I cannot accept that the officer breached his
duty of fairness to the applicant.
[35]
Issue
4
Did the officer err by
engaging in a selective review of the evidence?
PRRA officers are expected to
engage in a review of documentary resources and to be selective with respect to
the portions they find most relevant. Thus, the applicant does not invoke the
prospect of an error with this issue as written.
[36]
However,
where an officer fails to mention the substance of critical documentary
evidence which runs contrary to the conclusion he or she reaches, the reviewing
court will be more likely to infer that that conclusion was made without regard
to the evidence (see Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998) 157 F.T.R. 35, [1998] F.C.J. No. 1425 (F.C.T.D.) (QL)).
Yet, if this is the basis upon which the applicant requests this Court to
intervene, I find that the applicant has failed to point to such a critical and
contrary piece of evidence.
[37]
The
conclusion reached by the officer was that:
… the applicant has not demonstrated that
he has a political, separatist or religious profile indicating that he would be
targeted by the Turkish authorities, soldiers, extremists or any other groups.
[38]
The
officer based this finding in part on his conclusion that the applicant would
not face risk in Turkey based on his perceived Kurdish identity because
Kurds are not at a greater risk so long as they do not promote the creation of
a separate state. The applicant says this flies in the face of documents which
conclude that the Turkish authorities do not tolerate any other nationalities
and that Kurds who wish to freely express themselves and their identity as Kurds
are subject to persecution.
[39]
I
cannot find that such evidence is contrary to the officer’s finding. Nor can I
find that the officer ignored it. The officer discussed articles describing
abuses by Turkish authorities of pro-Kurdish groups:
Several articles report impunity, abuse
and violence by the Turkish authorities toward the leaders and members of
pro-Kurdish groups, members and supporters of human rights associations, public
figures and journalists. Tensions between nationalist Turks and Kurds are also
reported, with Kurds having a greater chance of being detained and abused than
Sunni Turks in the same situation. That vulnerability is key to their perceived
(leftist) political leanings….
[40]
These
findings must be contrasted with the evidence that the applicant is not
Kurdish, nor a member of any pro-Kurdish group or political party.
[41]
When
read on the whole, the decision is reasonable. I cannot conclude that this
determination fell outside the range of possible acceptable outcomes open to
the officer to make. As such, I would not allow judicial review on any of the
alleged grounds.
[42]
The
application for judicial review is therefore dismissed.
[43]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[44]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
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72.(1) Judicial review by the Federal Court with respect to
any matter — a decision, determination or order made, a measure taken or a
question raised — under this Act is commenced by making an application for
leave to the Court.
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.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
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