Date: 20080401
Docket: IMM-2288-07
Citation: 2008 FC 407
Ottawa, Ontario, April 1,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
NAFIYE
ERDOGU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Nafiye
Erdogu (the “Applicant”) applies for judicial review under section 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c.27 (the “IRPA”) of
a decision made by a Pre-Removal Risk Assessment Officer (“PRRA Officer”),
dated May 1, 2007, wherein it was determined that the Applicant would not be
subject to risk of persecution, torture, risk to her life or risk of cruel and
unusual treatment or punishment should she be removed to Turkey.
[2]
For
reasons that follow I have decided the application for judicial review should
be granted.
BACKGROUND
[3]
The
Applicant is of Kurdish/Alevi background. She alleged she was both politically
and religiously active in Turkey. Because of her activity, she claims she
was arrested on a number of occasions during which she was detained,
interrogated, beaten and sexually molested. In addition to the arrests, she
alleged she had other encounters with the police where she was again detained
and threatened. She came to Canada on August 24, 2003 and filed a claim for
refugee protection on September 16, 2003.
[4]
The
Refugee Protection Division (the “RPD”) of the Immigration and Refugee Board
issued its decision rejecting the Applicant’s claim for refugee status on
December 17, 2004. The Applicant applied for a pre-removal risk assessment on
August 24, 2006. The PRRA Officer issued a negative decision on May 1, 2007.
[5]
In
applying for a pre-removal risk assessment, the Applicant alleges that being
Kurdish and Alevi rather than Turkish and Sunni places her at risk of
mistreatment on return. She also alleges that her membership in DEHAP (The
Democratic People’s Party) places her in jeopardy because the organization is a
left-wing, Pro-Kurdish political party.
[6]
The
Applicant also claims to be at risk because of allegations made in Turkey to her
family by a hostile former Turkish boyfriend. Her boyfriend had visited her in
Canada and they
engaged in an intimate relationship. On January 18, 2006, the boyfriend
physically assaulted the Applicant accusing her of having sexual relationships
with male friends. The boyfriend shortly thereafter returned to Turkey whereupon he
told the Applicant’s family of their pre-marital affair. This resulted in her father
threatening to kill her to preserve family honour.
[7]
The
Applicant’s submissions about her situation in Turkey involved
information that was before the RPD in its hearing on her application for
refugee status. As such, the evidence is not relevant since section 113(a) of
the IRPA directs the PRRA Officer to only consider new evidence that arose
after the RPD rejection, or that was not reasonably available, or which the
Applicant could not have reasonably been expected to present at the time.
[8]
The
new evidence and therefore the question relevant for the PRRA Officer related
to the claim of a risk of an honour killing by her family. The issue is
whether the PRRA Officer properly considered all relevant evidence in denying
the Applicant’s PRRA claim.
THE DECISION UNDER
REVIEW
[9]
The
PRRA officer considered the issue of a risk of an honour killing. He stated in
his decision (PRRA Reason at 6):
The applicant states that she was a
victim of domestic violence at the hands of her Turkish boyfriend, Mr. Sedat
Tatar, who came to Canada on several occasions during
which time he met with the applicant and pursued an intimate relationship with
her. Mr. Tartar became enraged when he thought that the applicant was engaging
in sexual relationships with her male friends and as a result he assaulted and
terrorized the applicant. Mr. Tatar returned to Turkey and informed the applicant’s family of
his relationship with the applicant. The applicant alleges that her father is
now seeking to kill her to regain the family honour. The letter makes the
assertion that Turkey demonstrates an oppressive
environment, violence and discrimination against women by the government. The
applicant has not provided sufficient evidence to substantiate any claim that
she would be unable to obtain protection from her violent ex-boyfriend or her
father. Moreover, the applicant has not provided clear and convincing evidence
to rebut the presumption that state protection is available in Turkey for women who are subjected
to violence.
[10]
After
referring to Canada (Attorney General) v. Ward, [1993] 2
S.C.R.689, the PRRA Officer concluded with the following (PRRA Reasons at 7):
The letters authored by Craighan Knight,
the applicant’s sister and the applicant’s mother all refer to essentially the
same circumstances namely, the applicant’s claim of domestic violence. I have
considered this evidence and I have chosen to assign greater weight to more
objective documentation on the situation regarding the human rights situation
in Turkey, particularly the protection
that is available to women who are subjected to violence. As previously
mentioned, the publicly available documentation reveals that the government has
implemented a number of policies and programs that would provide protection for
victims of domestic violence. As such, I do not find the information contained
in the letters sufficient to establish that the state would not protect the
applicant should she return to Turkey.
STANDARD OF REVIEW
[11]
Recently,
the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9
held that there are now only two standards or review: correctness and
reasonableness (Dunsmuir at para. 34). The process of judicial review
now involves two steps. First, the reviewing court must determine whether the
jurisprudence has already established, in a satisfactory manner, the degree of
deference to be afforded to the question at hand. Second, where the first step
is unsuccessful, the reviewing court must undertake an analysis so as to
identify the proper standard of review (Dunsmuir at para. 62).
[12]
Prior
jurisprudence emanating from this Court has established that the standard of
review of a PRRA officer’s decision, when considered globally and as a whole,
was reasonableness simpliciter (Elezi v. Canada (Minister of
Citizenship and Immigration), 2005 FC 240; Figurado v. Canada
(Solicitor General), 2005 FC 347; and Kim v. Canada (Minister of
Citizenship and Immigration), 2005 FC 437). The standard of review for
a PRRA Officer’s findings of fact was patent unreasonableness.
[13]
In
Wa Kabongo v. Canada (Minister of
Citizenship and Immigration) 2008 FC 348, Justice Mosley
concluded the effect of Dunsmuir, above, was to establish the standard
of review for a PRRA officer’s findings of fact such as credibility as one of
reasonableness. I agree with Justice Mosley’s conclusion.
[14]
In
Dunsmuir, above, at para. 47, the Court gave useful instruction on
applying the reasonableness standard. Reasonableness is concerned with the
existence of justification, transparency and intelligibility within the
decision-making process. It is also concerned with “whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law”. Justification requires that a decision be made with
regard to the evidence before the decision-maker. A decision cannot be a
reasonable one if it is made without regard to the evidence submitted. I find
support for this rationale in Justice Teitelbaum’s decision in Katwaru v. Canada (Minister of
Citizenship and Immigration), 2007 FC 612 at paras. 18, 22.
ANALYSIS
[15]
Section
113(a) of IRPA states:
|
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;
|
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;
|
[16]
In
Raza v. Canada (Minister of Public Safety and Emergency
Preparedness), 2007 FCA 385 at paras. 13-15, Justice Sharlow for the Federal
Court of Appeal provided guidance with respect to “new evidence” under section
113(a) of the IRPA. Justice Sharlow identified credibility, relevance, newness
and materiality as evidentiary characteristics to be considered, along with the
express statutory conditions, in determining whether evidence submitted can by
accepted by a PRRA officer under section 113(a) of the IRPA.
[17]
The
RPD decision was rendered December 17, 2004. The incident of domestic violence
involving the Turkish boyfriend occurred on January 18, 2006. After the
domestic violence assault, the Turkish ex-boyfriend returned to Turkey. The
domestic assault and the report back to the family in Turkey occurred
after the 2004 RPD decision and thus is new evidence.
[18]
The
Applicant’s personal evidence concerning the danger to her of being a potential
honour killing victim consists of the following:
(a)
The
Applicant’s own narrative about the domestic assault as set out in the FCJ
Refugee Centre document (at pages 101 and 102 of the Tribunal Record).
(b)
The
letter of Craighan Knight relating to the domestic assault and the Applicant’s
fear of family consequences (at page 118 of the Tribunal Record).
(c)
The
letter of Naciye Erdogu, sister of the Applicant, telling of their father’s
anger and threat to kill her (at pages 119-122 of the Tribunal Record).
(d)
The
letter of Muharrem Erdogu, mother of the Applicant, also warning of her
husband’s anger and threats (at pages 123-125 of the Tribunal Record).
(e)
St.
Michael’s Hospital Psychiatric Emergency Service Interdisciplinary Record (at page
128 of the Tribunal Record), recording the Applicant’s recounting of the
domestic assault in the course of a psychological assessment.
[19]
The
Applicant’s evidence dealing with the evidentiary underpinning of her risk of
an “honour killing” is credible new evidence coming from multiple sources: the
Applicant, family members, a neighbour, and the psychiatric report. The
Applicant’s evidence satisfies the conditions of credibility, relevance and
materiality set out in Raza, above.
[20]
The
PRRA Officer did not dispute that the Applicant was a victim of domestic
violence, that her family in Turkey was aware of her pre-marital relationship,
and that she faced a risk of a possible honour killing. The Officer chose to
give more weight to the documentary evidence that state protection would be
available to the Applicant (U.S Department of State Country Reports
on Human Rights Practices, Turkey – 2006 and the Amnesty
International Report on Turkey: Women Confronting Family Violence). However,
portions of the documentary Reports that the PRRA Officer relied on corroborate
the reality of honour killings in Turkey.
[21]
The
U.S. Department
of State Report 2006 contains a number of statements concerning the
situation concerning “honour killings of women” in Turkey. These
statements indicate both positive steps taken by the government as well as
negative reports about the continuing practice. Illustrative of the dual
nature of the Report is the following (non-underlined and underlined portions
reflect, respectively, successes and failures with respect to curtailing
violence against women):
During the year the government faced
major challenges of increasing legal accountability of government security
forces, reducing restrictions on free speech, and modernizing the societal
attitudes with respect to antiquated practices such as “honour killings” of
women…. Violence against women, including so called honour killings and
rape, continue to be a widespread problem.
The law prohibits discrimination based on
race, gender, religion, disability, language, or social status. However,
problems with implementing these laws existed. The government and NGO’s focus
on eliminating societal violence and discrimination against women and
minorities, as well as trafficking, the problems continued to exist.
Violence against women including spousal
abuse was a serious widespread problem. The law prohibits violence against
women, including spousal abuse. The government did not effectively enforce
the law; however, the interior ministry and Prime Ministry issued circulars
during the year instructing relevant departments to better enforce these laws.
Domestic human rights organizations reported that these measures were
partially effective: more women call the police emergency hotline for
domestic violence when two police stations filed these reports.
[22]
Later,
the same Report states:
The government undertook a major campaign
during the year to end the practice of honor killings – the killing by
immediate family members of women suspected of being unchaste; however, the
practice remained a problem. The government reported that there were 1,806
honor killings between 2001 and 2006. During the same period, 5,375 women
committed suicide. After the government increased penalties for honor
killings, family members increasingly pressured girls to kill themselves in
order to preserve the family’s honor, according to women’s rights groups.
Broaching the formerly taboo topic, Prime Minister Erdogan condemned the
practice of honor killings at the Organziation of the Islamic Conference in
November. In July the Prime Ministry issued to all ministries and provincial
governments a circular that reminded each government institution of its
responsibility to prevent domestic violence, including honor killings. In
December the interior ministry issued a circular to provincial governors
instructing them to form special committees to prevent honor killings. Turkish
imams joined pop music stars and soccer celebrities to produce television and
billboard ads declaring honor killing a sin and condemning all forms of
violence against women. The State Ministry for Women began a prevention of
violence against women educational program for all soldiers doing their
mandatory military service. Government officials work with advocacy groups
such as KA-MER, the leading women’s organization in the southeast, to hold town
hall meetings and set up rescue teams and hotlines for endangered women and
girls. Under the Penal Code, honor killings require punishment of life
imprisonment. Women’s rights groups reported that there remained dozens of
such killings every year, mainly in conservative Kurdish families in the
southeast or among migrants from the southeast living in large cities. Because
of sentence reductions for juvenile offenders, observers noted that young male
relatives often were designated to perform the killing.
[23]
The
Amnesty International Report also contained information about honour
killings. It identified the general problem of violence against women and noted
government and NGO efforts to address the problem. Further, it reported on the
continuing challenges in this area, including honour killings (non-underlined
and underlined portions again reflect, respectively, successes and failures
with respect to curtailing violence against women):
Proposed reforms include restricting the
power of the courts to reduce sentences imposed on perpetrators of so-called
“honour crimes”; abolishing the postponement of sentences for men who marry the
women they abduct or rape; and not allowing as a legal defence the alleged
consent of a child to rape. In two recent trials, sentences have been passed
that reflect a new awareness within the judiciary of the horror of honour
killings.
Amnesty International is concerned that
the government has failed to ensure the effective implementation of existing
legislation and fears that further reforms will also be resisted by the courts
and other parts of the criminal justice system. The police frequently fail to
investigate or press charges against perpetrators of violence against women.
Women are not encouraged to bring complaints against their attackers and
receive almost no effective protection from vengeful husbands and relatives.
Those responsible – including the heads of family councils – are rarely brought
to justice. Shocking failures to uphold the law persist in courts that
continue to blame women who have been attacked, raped or killed and to confer
less responsibility on their attackers on grounds of honour.
[24]
The
Amnesty International Report goes on to document a series of instances
of individual women who were the subject of honour killings as well as other
instances of domestic violence.
[25]
Neither
the underlined portions referred to above nor the report of individual honour
killings were referenced in the PRRA Officer’s decision.
[26]
Is
the totality of the Applicant’s evidence capable of rebutting the presumption
of state protection provided for in Ward, above, and expounded upon by
the Federal Court of Appeal in Carrillo v. Canada (Minister of Citizenship
and Immigration), 2008 FCA 94? In Ward, above, at para. 50, the
Supreme Court of Canada held that the quantity and quality of the evidence
which a claimant must produce to rebut the presumption of state protection is
clear and convincing evidence. For example, an individual may produce evidence
that other individuals in similar circumstances were not able to avail
themselves of state protection. The Amnesty International Report on
Turkey documents situations of individual women at risk of or the victim of
honour killings in Turkey. This evidence satisfies the latter requirement
of Ward, above.
[27]
Is
the Applicant’s evidence reliable and of sufficient probative value? In Carrillo,
above, at para. 16, the Federal Court of Appeal distinguished between the
concepts of the burden of proof, the standard of proof and the quality of
evidence necessary to meet the standard of proof. The standard of proof
required is on the balance of probabilities and the evidentiary requirement the
Applicant must meet is that the evidence be reliable and be of sufficient
probative value (Carrillo, above, at paras. 18, 20, 30). The
Applicant’s evidence, taken together with the U.S. Department of State Report
and the Amnesty International Report, satisfies the requirement that the
evidence rebutting the presumption of state protection be reliable and
sufficiently probative.
[28]
In
Elcock v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 1438 at para. 15, the Federal Court held that the Convention Refugee
Determination Division, the precursor to the RPD, must analyse not merely
whether a legislative procedural framework for protection exists but whether
the state is able to effectively implement such a framework. Justice Gibson
stated:
The ability of a state to protect must be
seen to comprehend not only the existence of an effective legislative and
procedural framework but the capacity and the will to effectively implement
that framework.
[29]
The
documentary evidence, while noting the efforts of the Turkish government to
address the issue of honour killings also notes that there are continuing
problems. As the programs against domestic violence being developed by the
government mature and gain political strength, one hopes that the current
efforts of the government may provide relief for those seeking protection at a
future date. However, as the documentary evidence indicates, at the time of
the PRRA decision, there were significant deficiencies in state protection for
women who were subject to the threat of an honour killing. The documentary
evidence is clear that the government’s efforts do not completely address the
issue of effective protection for a woman who faces a present risk of an honour
killing
[30]
Finally,
in Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC
420, aff’d 2007 FCA 171, leave to appeal denied [2007] S.C.C.A. No. 320, Justice
Mactavish referred to Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35 (F.C.T.D.) and noted
that, where a tribunal does not specifically refer to an important piece of
evidence, a court would be more willing to infer from the silence that the tribunal
made an erroneous finding of fact (Hinzman at para. 177). I find
Justice Evans’ comments in Cepeda-Gutierrez at para. 17 instructive:
However, the more important the
evidence that is not mentioned specifically and analyzed in the agency’s reasons,
the more willing a court may be to infer from the silence that the agency made
an erroneous finding of fact “without regard to the evidence”: Bains v.
Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312
(F.C.T.D.). In other words, the agency’s burden of explanation increases with
the relevance of the evidence in question to the disputed facts. Thus, a
blanket statement that the agency has considered all the evidence will not
suffice when the evidence omitted from any discussion in the reasons appears
squarely to contradict the agency’s finding of fact. Moreover, when the
agency refers in some detail to evidence supporting its finding, but is silent
on evidence pointing to the opposite conclusion, it may be easier to infer that
the agency overlooked the contradictory evidence when making its finding of
fact (emphasis added).
[31]
The
PRRA Officer considered the Applicant’s evidence without having regard to the
information in the U.S. Department of State Report which supported the
Applicant’s fears. The evidence in the U.S. Department of State Report
is not for the selective use of a PRRA officer. The information contained in
objective documentary evidence may have opposing elements. It is incumbent on
a PRRA officer to expressly consider such contrasting points when arriving at a
determination
[32]
The
PRRA Officer made reference only to evidence in the Reports supporting the
conclusion that state protection existed. At no time did the PRRA Officer make
reference to evidence in those same Reports pointing to the opposite
conclusion. This one sided consideration leaves it open to infer that the PRRA
Officer overlooked the contradictory documentary evidence when coming to a negative
determination.
CONCLUSION
[33]
It
is not clear to me that the PRRA Officer considered the totality of the
evidence in assessing the Applicant’s claim that she faces danger of risk to
her life should she be removed to Turkey. The Officer made no reference to
adverse documentary evidence. The PRRA Officer’s decision lacks transparency
and justification in that it fails to clearly address all the evidence. The
decision therefore cannot be found to be reasonable.
[34]
The
judicial review is allowed. The decision of the PRRA Officer is to be set
aside and the matter is to be referred to another Officer for redetermination.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is allowed and the matter is to be referred to
another Officer for redetermination.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
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