Date: 20091119
Docket: IMM-4999-09
Citation: 2009
FC 1190
Toronto, Ontario, November 19, 2009
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
MUSA YAKUT
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
On
November 16, 2009, the applicant, a citizen of Turkey and an Alevi Kurd, sought a stay of his
removal from Canada scheduled for December 7th
2009. The underlying application to which the stay application is grafted is his
second negative Pre-Removal Risk Assessment (PRRA) dated July 3rd
2009 concluding there was no serious reason to believe, if returned to Turkey, he would be subject to
torture, to risk to his life or to cruel and unusual punishment. It was after
his first negative PRRA decision dated May 12, 2006 the applicant
returned to Turkey but only stayed there three
weeks alleging he had to flee his persecutors the Turkish Police who had
arrested and tortured him. He returned to Canada from the U.S., allegedly hidden in a truck, on or
about February 1, 2007. He made a second refugee claim but he was declared not
eligible to do so. On December 17, 2007 he was offered a second PRRA.
[2]
As is well
known, in order to obtain a stay the applicant had to establish each element of
the three-part test, namely, (a) a serious issue in the PRRA officer’s decision
assessed on the basis of that issue being arguable (or conversely, not being
frivolous or vexatious). (b) He would suffer irreparable harm if the stay was
not granted i.e. if returned to Turkey
and (c) the balance of convenience favoured the applicant.
The Factual Context
[3]
Before
dealing with the three-part stay test, in order to appreciate the submissions
of the parties and the PRRA officer’s negative finding of risk of return to
Turkey, a brief factual context to this stay application is necessary.
[4]
The
applicant’s fear of the Turkish Police and security agents is based on his
claim the authorities believe he is a supporter and has links to the PKK. He
was born and lived in the Kurdish area of south-east Turkey. His persecution, torture and arrests are
said to have begun in 1994 and continued regularly until 1999
when he fled Turkey arriving in Canada on August
12, 1999 to make a refugee claim at the inland port of entry of Lacolle, Quebec. His refugee claim was
refused in August of 2000.
[5]
While
neither motion record contained the Refugee Board’s decision of August 2000,
leave denied by a Judge of this Court in January 2001, the PRRA officer in his
July 3rd 2009 decision wrote the following about that decision:
The IRB accepted his statement that he is
an Alevi Kurd. It found his account of the events of 1994 to 1996 plausible,
noting that in spite of the reported persecution he had not left Turkey. It concluded, however, that
his account of subsequent events, those he says induced him to leave his
country, lacked credibility and were implausible (such as the obligation to
guide the military through the mountains, the threat of enrolment in the
Village Guards, and the lifting of travel restrictions in exchange for working
as a spy).
The Second PRRA Decision
[6]
The PRRA
officer accepted as new evidence for the purpose for the applicant’s second
PRRA application Counsel for Mr. Yakut’s written submissions dated January 4,
2008 which included:
(i)
The
applicant’s statement of what happened to him upon his return to Turkey on July 25th 2006
(ii)
A letter
from his brother indicating the police had come to his house looking for the
applicant after he had fled the second time
(iii)
A
certificate from an official from the applicant’s village dated January 8, 2008
that the applicant has been sought by police from the Besni Police Station and
was to go there as soon as possible and, if he did not, he would be arrested
[7]
In his statement,
the applicant said, on his return to Turkey on July 25, 2006, he was held by
the police for four hours at the airport during which he was interrogated and
mistreated (punched, kicked and beaten) who accused him of being involved in
Kurdish separatist organizations, spreading lies about Turkey and demeaning the
country by making a refugee claim. He was told by police at the airport they
would contact police and security police in his village. He was then released.
[8]
He said he
obtained a new Turkish identity card and a Turkish passport “with the
assistance of a friend of his that knew someone in the passport office and the
registry office that I could easily obtain these documents.” He said nothing
had changed in his village where he went to stay with his parents; the Kurds
were still targeted by the police and security agents. A week after his
arrival at his village, the police came and told him to go with them to Besni
Central Police Station where the applicant said they interrogated him, beat him
and accused him of linkage with a separatist Kurdish Organization. He was
interrogated twice and detained once for 24 hours where he was threatened he
would pay the price with his life for not respecting the Turkish state.
[9]
This stay
application must also be appreciated in the light of the documentary evidence
drawn to my attention to the following effect:
(1) Amnesty International Report
2007 on Turkey which stated “After the
introduction of new legislation in previous years, there was little evidence of
progress in the implementation of reform. Human rights further deteriorated in
the eastern and south-eastern provinces in the context of an increase in the
fighting between the security forces and the PKK and in spite of a general
decrease in allegations of torture or ill-treatment were reports that such
abuses were widespread in police custody against those detained during the
protests.”
(2) A Freedom House Report
released in June 2007 which emphasized that violence in predominantly Kurdish
south eastern Turkey grew increasingly out of
control in the context of the separatist guerrilla war against government
forces and a new Kurdish rebel sprouting up.
(3) A report on Human Rights
Violation in respect of Turkey released in March 2007 with
the same commentary. (1) Slow-down in reforming and improving human rights
protection in Turkey in 2006 (2) Indiscriminate
and excessive use of force by security forces.
Analysis
(a) Serious Issue
[10]
Counsel
for the applicant made two submissions as to serious issues: (1) the PRRA
officer made credibility findings against him in breach of section 113(b) of
the Immigration and Refugee Protection Act (IRPA) because no hearing was
held, and (2) the PRRA officer misunderstood the evidence and failed to
properly consider the Applicant’s supporting documentation.
[11]
On the
first point, Counsel for the applicant argued there were several instances the
PRRA officer took into account for not believing he was wanted by the
authorities, was suspected of being a PKK supporter and consequently had been
beaten tortured and detained (1) he was able to obtain a passport and leave the
country without any problem holding “these facts are at odds with his
allegations to the effect he is wanted by the authorities who suspect him of
being a PKK supporter” and the fact of the issuance of that passport to him by
his alleged persecutors and the objective documentary evidence lend no credence
to the applicant’s assertions that he is wanted by the Turkish authorities”;
(2) the fact that he did not have a document from an objective, reliable source
(such as a report from the police station or the police anti-terrorist unit) as
evidence they suspect him of having links to the PKK thus negating any reason
to detain and beat him. (3) the PRRA officer did not believe was wanted by the
police because it did not give credence to the certificate from his village
elder for a number of reasons but did not raise with the applicant the
concerns.
[12]
Counsel
for the applicant argued as a second point the PRRA officer made an
unreasonable assessment and showed a misunderstanding of the evidence. On the
passport question she argued the PRRA officer misread the evidence on who would
be issued a passport and who would be detained at the airport. The PRRA
officer pointed to documentary evidence passports are not issued to people who
face criminal charges. Counsel argues the applicant never asserted he faced
criminal charges but rather that he was detained and tortured because he was a
suspected PKK supporter and could provide information to the security forces against
the PKK which would be useful in their fight with that organization. In other
words, the PRRA officer missed the whole basis of his case.
[13]
Counsel
for the respondent countered this was not a case of credibility but rather a
finding of insufficiency of evidence although he admitted the line between
insufficiency of evidence and reliability or credibility of evidence tends to
be blurred. I agree with Counsel for the applicant that on the low threshold of
an arguable case or conversely one which is not frivolous or vexatious, a case
of serious issue has been made out. As Justice O’Reilly pointed out in Liban
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1252 at
paragraphs 13 and 14 a finding of insufficient objective evidence really means
the PRRA officer did not believe the applicant. See also Justice Russell’s
decision in Latifi v. M.C.I., [2006] F.C.J. No. 1738.
[14]
Moreover I
agree with Counsel for the applicant the PRRA officer appears to have
misunderstood the nature of the applicant’s case and discounted new evidence
without sufficient reasons such as simply because his brother wrote the letter.
(b) Irreparable Harm
[15]
I agree
irreparable harm on a balance of probabilities has been made out. As Justice
MacKay points out in Ahmad v. Canada (Minister of Citizenship and
Immigration), 2003 FC 1295 the nature of the serious issues in this case
are such that if he were to be removed and the PRRA officer was wrong, the
applicant would be exposed to risk of irreparable harm. This is particularly
so given the documentary evidence cited in these reasons.
(c) Balance of Convenience
[16]
Having
made serious issue and irreparable harm the balance of convenience favours the
applicant.
ORDER
THIS COURT ORDERS that this stay application is
granted; the applicant’s removal to Turkey
is stayed pending the determination of leave and if leave is granted until the
judicial review is determined.
“François
Lemieux”
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