Docket: IMM-1938-15
Citation:
2015 FC 1413
Ottawa, Ontario, December 23, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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MEHMET SINKIL
FATIMA SINKIL
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application
for judicial review pursuant to section 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the
Act] challenging an officer [the Officer]’s decision refusing the Applicants’
Pre-Removal Risk Assessment [PRRA] application. The Court heard this
application together with the Applicants’ application in IMM-1939-15 to have
the refusal of their permanent residence application on humanitarian and
compassionate [H&C] grounds judicially reviewed. This application only
concerns the PRRA decision.
[2]
For the reasons that follow, the application is dismissed.
I.
Background
[3]
The principal Applicant and his wife are both
Turkish citizens of Kurdish ethnicity. They first entered Canada in 2008, with
their three children at the time, and made claims for refugee protection, which
were refused in 2011. The Applicants applied for leave for judicial review and
the Federal Court ordered that the two eldest sons’ claims be re-determined. A
new determination ensued and the two eldest sons were found to be Convention
refugees based on their objection to performing military service in Turkey.
[4]
The chronology of events applying to the
Applicants are as follow:
•
The principal Applicant claimed that his
problems in Turkey began in 1990;
•
In 1995, the principal Applicant travelled to
Germany and reavailed himself to Turkey;
•
In 1997, 2002, 2004, 2005, the principal
Applicant travelled to the U.S. and he reavailed himself to Turkey each time;
•
In 2008, the principal Applicant and his family entered
Canada and made refugee protection claims, which were refused on May 25, 2011;
•
On September 13, 2011, leave to commence
judicial review of the failed refugee claims was granted and as a result, the
two eldest sons’ applications were sent for redetermination at which point they
were recognized as Convention refugees;
•
On December 12, 2011, the Applicants and their
daughter’s judicial review was denied;
•
In August 2012, the Applicants and their daughter’s
PRRA application was rejected;
•
On October 14, 2012, the Applicants and their daughter
were removed from Canada and returned to Turkey as a result of their failed
refugee claim and PRRA application;
•
On December 30, 2012, the Applicants travelled
to the U.S.;
•
On December 31, 2012, the Applicants sought admission
to come into Canada to make a refugee claim, but were found ineligible to make
such a claim and were not entitled to make a PRRA;
•
On December 31, 2012, the Applicants departed
Canada and remained in the U.S. until June 2013;
•
In June 2013, the Applicants reavailed
themselves to Turkey;
•
On August 14, 2013, the principal Applicant,
unaccompanied by his family, returned to the U.S., and made no claim for asylum
during his stay;
•
On May 21, 2014, the principal Applicant’s
family joined him in the U.S.;
•
On June 10, 2014, the Applicants arrived in
Canada seeking protected status at which point the Applicants were ordered
deported from Canada as they were ineligible to make a refugee claim and a PRRA
was initiated;
•
On March 17, 2015, the Applicants’ PRRA application
was refused, which is one of two decisions for which the Applicants are seeking
judicial review, the other being their permanent residence application on
humanitarian and compassionate grounds refused on March 19, 2015 (IMM-1939-15).
II.
Issues
[5]
The issues raised in this application are the
following:
1. Did the Officer violate the principles of fairness and fundamental
justice by making adverse credibility findings against the Applicants without
granting the Applicants an oral hearing?
2. Did the Officer breach the principles of procedural fairness and
fundamental justice by relying on incorrect extrinsic evidence without allowing
the Applicants an opportunity to respond?
3. Did the Officer err by failing to conduct an analysis under section
97 of the Act?
III.
Analysis
A.
Oral hearing
[6]
The Applicants argue that an oral hearing was
required in accordance with section 167 of the Immigration and Refugee
Protection Regulations [IRPR or Regulations] because they presented
new evidence of risk. It is in the form of a statutory declaration from the
principal Applicant and a letter stating that a warrant for arrest was issued
for the principal Applicant from a Turkish lawyer. They argue that, if believed
and accepted, the evidence would have resulted in a positive determination given
the Turkish government’s human rights record.
[7]
I disagree with this submission. The evidence provided in the statutory declaration was not supported by
other evidence in the record and the principal Applicant had therefore not met
the legal burden as the evidence presented did not
prove the facts required on the balance of probabilities.
[8]
The Officer's rejection of the Applicants’ claim
was based upon objective evidence, not on a finding of credibility. The finding
of no subjective fear was based upon the evidence of the principal Applicant’s
continual series of reavailments over a number of years, and in particular that
in 2013 after the 2012 incidents, upon which the asylum claim is based. This
conclusion was similarly supported by his failure to seek protection in the
United States at the first opportunity after claims of being beaten and
tortured in Turkey.
[9]
Other findings demonstrating the insufficiency
of the Applicants’ evidence included:
1. There was no evidence that the principal Applicant and his daughter
were taken to the hospital.
2. There was no evidence that the Applicants’ daughter was treated for
tear gas.
3. There was no medical evidence concerning the principal Applicant’s
statement that he was beaten or that he sought any medical treatment after being
tortured for two days.
4. There was no reason for the authorities to further investigate the
principal Applicant after having arrested him at the Geza Park demonstrations.
5. Despite being watched by the authorities, the principal Applicant
was able to leave Turkey.
6. There was no evidence that the Applicants’ daughter, who was not
issued a US visa and remains in Turkey, has any reported difficulties.
[10]
Similarly, there was no corroborating objective
evidence that the principal Applicant learned in 2013 that he was sought by
authorities and that a warrant for his arrest had been issued, which allegedly
lead him to leave the United States and seek asylum in Canada. The Officer quite
properly had a reasonable basis to reject this evidence because no warrant was
provided in the lawyer’s one paragraph letter, without which the letter had no
discernible weight.
[11]
The law is clear that the Applicants must meet
the evidentiary burden. That the legal burden is not met because the evidence presented
does not prove the facts required on the balance of probabilities: Ferguson
v Canada (Minister of Citizenship and Immigration), 2008 FC 1067. It is
also common ground that the practice of seeking corroborating evidence is a
matter of common sense: Juarez v Canada (Minister of Citizenship and Immigration),
2006 FC 288 at para 7.
B.
Extrinsic evidence
[12]
It is acknowledged that the Officer erred in relying
on incorrect extrinsic evidence when he stated “Additionally,
my research on anti-terror laws indicate there is no article 10 and that article
10 was annulled by the Constitutional Court’s decision, dated 31.03.192.”
[Emphasis added]
[13]
However, I agree with the Respondent that by use
of the term “additionally”, coming as it did after all of the other grounds
provided in the reasons described above, renders the comment an afterthought
and not central to the decision . In my view, when all of the evidence is
considered as a whole, this error does not warrant the Court’s intervention: Selliah
v Canada (Minister of Citizenship and Immigration), 2005 FCA 160.
C.
Failure to conduct a section 97 analysis
[14]
I also reject the Applicants’ contention that
the Officer erred by failing to conduct an analysis under section 97 of the
IRPA. The Officer concluded that there was “insufficient
objective evidence that the applicants will suffer any harm upon their return
to Turkey”. He specifically found that the Applicants were not in need
of protection citing the wording of section 97.
[15]
This conclusion and the decision as a whole
falls within a reasonable range of acceptable outcomes based on the facts and
law.
[16]
Accordingly, the application is dismissed and no
question is certified for appeal.
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