Date: 20080311
Docket: IMM-2589-07
Citation: 2008 FC 334
Ottawa, Ontario, March 11,
2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
EMINE ELER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Emine Eler is
a citizen of Turkey who sought refugee protection. She testified before the
Refugee Protection Division of the Immigration and Refugee Board (Board) that
she feared serious harm, amounting to persecution, at the hands of her younger
brother who persistently demanded money from her and used force to obtain that
money.
[2] The
Board made no finding with respect to the credibility of Ms. Eler's testimony.
Thus, it is presumed to be true. The Board dismissed Ms. Eler's claim for
protection on the sole ground that she had failed to rebut the presumption of
state protection.
[3] Critical
to the Board's conclusion was its reliance upon "The Law for the
Protection of the Family in Turkey" which came into force in 1998. The
Board described the effect of this legislation as follows: "[u]nder the
law, a woman or a family member or a family friend or the prosecutor can ask
the justice of the peace to take measures to protect the woman from violence.
The judge must immediately grant a protection order on receipt of the
application; it is not a request to prosecute the offender but a request for
the protection of the spouse or woman. It requires the alleged perpetrator of
violence to leave the home and to comply with other requirements of the order,
such as not approaching the victim, or face imprisonment. It gives the police
the right to confiscate the alleged perpetrator’s weapons."
[4] The
legislation was not in evidence before the Board. Instead, the Board relied
upon a description of the legislation contained in an Amnesty International
report. That report went on to express Amnesty International's concern that
"the Law provides protection only to women married in a civil ceremony and
living under the same roof as their husband."
[5] Based
on this characterization of the legislation, which was the only evidence before
the Board, the legislation could provide no redress or protection to Ms. Eler.
[6] The
Board's conclusion about the adequacy of state protection was, and remains, reviewable
against the standard of reasonableness. See: Hinzman v. Canada
(Minister of Citizenship and Immigration) (2007), 362 N.R. 1 at paragraph
38 (F.C.A.), and Dunsmuir v. New Brunswick, 2008 SCC 9 at
paragraphs 55, 57, 62, and 64.
[7] Reasonableness
requires consideration of the existence of justification, transparency, and
intelligibility of the decision-making process. It is also concerned with
whether the decision falls within a range of acceptable outcomes, which are
defensible in respect of the facts and law. See: Dunsmuir at paragraph
47.
[8] Where
the Board relies upon the existence of certain legislation to provide
protection, but the evidence before the Board is to the effect that the
legislation has no application to the claim before it, the Board's reasons are
not reasonable as they are insufficiently justified.
[9] It
follows that the application for judicial review is allowed.
[10] Counsel
for the Minister, Ms. Jaakkimainen, is commended and thanked for her customary
candour to the Court with respect to the contents of the tribunal record.
[11] Counsel
posed no question for certification, and I agree that no question arises on
this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed,
and the decision of the Refugee Protection Division dated June 5, 2007, is
hereby set aside.
2. The matter is remitted for redetermination in accordance with
these reasons by a differently constituted panel of the Refugee Protection
Division.
“Eleanor R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2589-07
STYLE
OF CAUSE: EMINE
ELER, Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO,
ONTARIO
DATE OF HEARING: MARCH 4, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: MARCH 11, 2008
APPEARANCES:
MICHAEL CRANE FOR
THE APPLICANT
A. LEENA JAAKKIMAINEN FOR
THE RESPONDENT
SOLICITORS OF RECORD:
MICHAEL CRANE FOR
THE APPLICANT
BARRISTER AND
SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA