Date:
20140221
Docket: IMM-12685-12
IMM-12686-12
Citation:
2014 FC 172
Ottawa, Ontario,
February 21, 2014
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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HUSEYIN TALIPOGLU
KADRIYE TALIPOGLU
KADRIYE CANDAS
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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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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of two decisions of Q. Liu, a Senior
Immigration Officer at Citizenship and Immigration Canada [the Officer], pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [the Act]. The Officer refused a pre-removal risk assessment
application [PRRA Application], pursuant to subsection 112(1) of the Act and an
exemption from the in-Canada selection criteria on humanitarian and
compassionate grounds [H&C Application], pursuant to subsection 25(1).
I. Issues
[2]
The
issues raised in the present application are as follows:
A. Pre-Removal Risk
Assessment Application
1. Did the Officer apply the
correct test to assess the risk faced by the Applicants?
2. Was the
Officer’s application of the test unreasonable?
B. Humanitarian
and Compassionate Application
1. Is the outcome of the PRRA
Application determinative of the result of the H&C Application?
2. Was the Officer’s decision
unreasonable?
II. Background
[3]
The
Applicants consist of Huseyin Talipoglu and his wife Kadriye Talipoglu [the
Adult Applicants], and their granddaughter, Kadriye Candas [the Minor
Applicant]. The Adult Applicants are a married couple who are citizens of Turkey. They have two daughters. One daughter, Emine Ozen, fled Turkey in fear of her
former spouse and has lived in Canada since successfully applying for refugee
protection. The other daughter lives in Turkey, and is the mother of the Minor
Applicant.
[4]
The
Adult Applicants came to Canada with the Minor Applicant on July 20, 2002, and
shortly thereafter applied for refugee protection, claiming that they feared
Ms. Ozen’s former spouse. Their refugee protection application was refused by
the Refugee Protection Division of the Immigration and Refugee Board [the
Board] on July 7, 2004.
[5]
The
Applicants filed their H&C Application on December 31, 2004 and their PRRA Application
on August 3, 2011.
A. PRRA Application
[6]
On
October 17, 2012, the Officer refused the Applicants’ PRRA Application. The
Officer’s decision hinged on three issues raised by the Applicants.
[7]
First,
the Officer considered an undated letter from the Minor Applicant’s mother, who
said that Ms. Ozen’s former spouse still looks for the Adult Applicants and
intends to hurt them. The Officer assigned little weight to this letter on the
grounds that it was undated, vague, and self-serving.
[8]
Second,
the Officer addressed a copy of Mr. Talipoglu’s telephone records, which showed
many phone calls to Turkey in August, 2011. The Adult Applicants’ Canadian
daughter swore in an affidavit that these were harassing calls from Ms. Ozen’s
former spouse directed at the Adult Applicants. The Officer stated there was no
evidence that the Adult Applicants were being harassed by Ms. Ozen’s former
spouse and assigned little weight to this evidence.
[9]
Third,
the Officer considered three claims that concern the Minor Applicant: that she
would be discriminated against because she converted to Christianity from Alevi
(a religious group within Shia Islam), that her mother was depressed and could
not take care of her, and that her father would mistreat her and force her to
wear a hijab. The Officer rejected the first claim because there was no
evidence that the Minor Applicant converted to Christianity, nor was there any
evidence that she “would be persecuted and harmed because of her religion or
her life style,” as country condition documents submitted by the Applicants
were general and unrelated to the Minor Applicant. The Officer rejected the
second and third claims given there was no evidence about the mental health of
the Minor Applicant’s mother and the current state of the relationship between
the Minor Applicant and her parents was unclear.
[10]
Consequently,
the Officer concluded that he did not find the Applicants would face more than
a mere possibility of persecution, or that it was likely the Applicants would
face a danger of torture, risk to life, or a risk of cruel and unusual treatment
or punishment, as per sections 96 and 97 of the Act.
B. Humanitarian
and Compassionate Application
[11]
On
October 29, 2012, the Officer refused the Applicants’ H&C Application on
the basis that they had not shown that their establishment in Canada, risk of being removed, and the best interests of the child constituted hardship that was
either unusual and undeserved or disproportion such that a H&C exemption
was warranted.
i. Establishment
[12]
In
considering establishment, the Officer noted that the Applicants had low
incomes, previously received social assistance and currently live in subsidized
housing. They were not financially established. As for their integration in the
community, they were supported by their church but should not have had any
reasonable expectation that they would be here permanently.
[13]
As
for their familial ties, the Officer viewed their relationships with their
daughter in Canada and her husband and children positively. However, he
concluded that there was no evidence that they could never reunite if the
Applicants left Canada.
[14]
Ultimately,
the Officer accepted that the Applicants were somewhat established, since they
had been here for 10 years, but did not see their degree of establishment as warranting
an exemption from the ordinary operation of the Act.
ii. Risk
[15]
The
Officer summarized the Applicants’ claims regarding Ms. Ozen’s former spouse,
quoting the Board’s reasons for denying the Applicants’ refugee claim in 2004,
and gave those reasons considerable weight. The Officer also summarized his
decision in the Applicants’ PRRA Application, and observed that the claims of
risk were the same. For the same reasons given in the PRRA decision, the
Officer assigned low weight to an undated letter from the Minor Applicant’s
mother.
[16]
The
Officer also conducted research on country conditions in Turkey, and noted that although the human rights situation is problematic, the Applicants
would not necessarily face particularized risk.
[17]
Cumulatively,
the Officer found there was no persuasive evidence that the Applicants would be
subject to any risk that would result in unusual and undeserved or
disproportionate hardship.
iii. Best
Interest of the Children
[18]
The
Officer considered the Adult Applicants’ claims that the Minor Applicant’s
parents would not properly care for her, which was supported by letters from
the Minor Applicant’s parents. However, given the lack of medical evidence
regarding the Minor Applicant’s mother’s mental health and the fact that Minor
Applicant’s parents still retained legal custody, the Officer was not persuaded
that it was in the Minor Applicant’s best interest to remain in Canada. In coming to this conclusion, the Officer also noted that if the Applicants were
removed to Turkey, the Minor Applicant would still be with her current
caregivers (the Adult Applicants) and that the education system in Turkey was sophisticated.
[19]
The
Officer also considered the interests of Elgin Ozen, the Minor Applicant’s
cousin, who has developmental delays. Letters from his physicians stated that
support from his family members was important. Despite this, the Officer
concluded the impact of the departure would not be so negative as to
detrimentally impact Elgin Ozen. The Officer concluded this because he is
receiving care from his own family, it was unclear from the evidence what
treatment he was receiving, and there was no evidence that the cousin would be
unable to remain in contact with the Applicants after their departure.
[20]
For
those reasons, the Officer found that the negative effects on the children did
not justify an H&C exemption.
[21]
The
Officer concluded that all the factors described above, considered separately
and cumulatively, did not warrant an H&C exemption.
III. Standard of Review
[22]
Whether
the Officer applies the correct legal test in conducting the PRRA is reviewable
on the standard of correctness. The Officer’s application of the test to the
facts at issue is a question of mixed fact and law and reviewable on the
standard of reasonableness, and is generally afforded deference by this Court.
[23]
The
question of whether the result of the PRRA Application is determinative of the
related H&C decision raises questions about what tests an Officer must
apply when assessing H&C applications. Such a question attracts the
correctness standard of review (Guxholli v Canada (Minister of Citizenship
and Immigration), 2013 FC 1267, at para 17), while the Officer’s decision itself
is reviewable on the standard of reasonableness.
IV. Analysis
A. Did
the Officer Apply the Correct Test to Assess the Risk Faced by the Applicants?
[24]
The
Applicants argue that the Officer applied the incorrect test for assessing
whether the Applicants would face a risk of persecution if removed. They point
out that the Officer stated that “I do not find that the Minor Applicant would
be persecuted or harmed by religious extremists.” The Applicants argue that
this shows the Officer was requiring them to show persecution on a balance of
probabilities, which is a misinterpretation of the legal test for assessing a
PRRA, as adopted from Adjei v Canada (Minister of
Employment and Immigration), [1989] 2 FC 680 in Chan
v Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593, at
para 120 [Chan].
[25]
The
Applicants acknowledge that while the Officer correctly states the test from Chan
in the concluding paragraph of the decision, they assert that it is merely
a boilerplate conclusion which does not cure the substantive error in the
Officer’s decision: it is tainted by the application of the incorrect legal
test, which is shown by the Officer’s analysis of the facts.
[26]
The
Respondent acknowledges that the Officer appears to have misstated the test at
some points in the decision, but states that the Officer’s correct statement of
the test shows that the right test was applied, and that poor or imprecise
wording does not necessarily show that the wrong test was applied (Paramanathan
v Canada (Minister of Citizenship and Immigration), 2012 FC 338, at para
24; Gao v Canada (Minister of Citizenship and Immigration), 2014 FC 59, at
paras 26-27).
[27]
The
test for assessing persecution was described in Chan at para 120 as follows:
In the specific
context of refugee determination, it has been established by the Federal Court
of Appeal in Adjei v. Canada (Minister of Employment and Immigration),
[1989] 2 F.C. 680, that the claimant need not prove that persecution would be
more likely than not in order to meet the objective portion of the test. The
claimant must establish, however, that there is more than a "mere
possibility" of persecution. The applicable test has been expressed as a
"reasonable possibility" or, more appropriately in my view, as a
"serious possibility".
[28]
The
correct test is whether an applicant has demonstrated whether there is more
than a mere possibility of persecution, not whether an applicant has proven
persecution on a balance of probabilities.
[29]
Both
parties acknowledge that the Officer misstated the test in the body of the
decision and correctly stated it in the final paragraph of the decision:
• At page 6 of the decision,
the Officer states: “[n]o evidence is submitted to demonstrate that the minor applicant
would be persecuted and harmed because of her religion or her life style”;
• Later
in the same paragraph, the Officer states: “[d]ue to lack of sufficient evidence,
I do not find that the minor applicant would be persecuted or harmed by
religious extremists”;
• Again,
two paragraphs later, the Officer states: “[t]here is no evidence to indicate
that the minor applicant would be harmed by her parents”; and
• In
the concluding paragraph of the decision, the Officer states the test
correctly: “…I do not find the applicants would face more than a mere
possibility of persecution.”
[30]
The
Respondent is correct that Officer’s use of the word “would” is not necessarily
fatal if the decision as a whole shows that the officer understood and applied
the correct test (Sinnasamy v Canada (Minister of Citizenship and
Immigration), 2008 FC 67, at para 30).
[31]
However,
as was stated in Optiz v Wrzesnewskyj, 2012 SCC 55, at para 88 [Optiz],
a reviewing court needs to be confident that the decision-maker applied the
correct legal test when it mattered. In this case, the examples cited above
demonstrate the Officer explicitly did not use the correct test when assessing
the evidence, and the generic concluding paragraph which cites the correct test
does not change this. Accordingly, I find that the Officer did not apply the
correct test and on this basis alone the Application should be allowed.
B. Was
the Officer’s Application of the Test Unreasonable?
[32]
Given
my finding above, I need not consider the second issue. However, I find that
the treatment of the evidence by the Officer was also unreasonable.
Specifically, the Officer said at page six of the decision that “[t]here is no
evidence that the minor applicant is a convert from Alevi to Christianity.”
However, there were two letters from the pastor of the King’s Family Church (pages 295 and 378 of the Certified Tribunal Record) confirming that the Minor
Applicant and her grandmother regularly attended his services. The Respondent incorrectly
referred to one letter, and notes that this letter does not say how long they
have been attending Church. That finding goes to weight, and it does not
justify the Officer’s declaration that there was “no evidence.”
[33]
Additionally,
the Minor Applicant’s aunt and the Adult Applicants swore that the Minor
Applicant was a convert who was very involved in church activities. The Officer
does not explain why sworn testimony from family members and two letters from a
church pastor about a person’s current faith practices is not acceptable
evidence about a person’s religious beliefs. An absence of reasoning in this
regard renders this aspect of the decision unintelligible.
[34]
The
Respondent also argues that there is no evidence that the Minor Applicant would
be harassed. However, the Officer disregarded the country documentation after he
concluded that there was no link to the Minor Applicant’s personal situation because
the Officer determined that she was not a convert to Christianity. It is not
clear whether the Officer would have done the same if the Officer had
reasonably considered the evidence as to whether the Minor Applicant was
Christian.
[35]
Consequently,
I find the Officer’s PRRA decision unreasonable.
C. Does
the Outcome of the Related PRRA Application Dictate the Result of the H&C Application?
[36]
The
Applicants argue that an error in assessing risk in a PRRA Application will be
determinative of an H&C Application, when based on the same facts (Divakaran
v Canada (Minister of Citizenship and Immigration), 2011 FC 633, at para
28).
[37]
Further,
in their Reply Memorandum, the Applicants state that the Respondent’s reliance
on subsection 25(1.3) is misplaced.
[38]
The
Respondent argues that an H&C application considers different factors than
a PRRA, as per subsection 25(1.3) of the Act. Accordingly, the failure of an
applicant’s PRRA does not condemn their H&C application. Further, the
Respondent contrasts the purpose of an H&C analysis with the mandate of a
PRRA officer, who is tasked with assessing risk before removal as per
subsection 113(a) of the Act.
[39]
The
Respondent argues that the Officer focussed on hardship when assessing risk,
and never conducted a section 96 analysis. Therefore, any error in the PRRA does
not translate into an error in the H&C analysis.
[40]
The
Applicants are correct in stating that the Respondent improperly relies on
subsection 25(1.3) of the Act, as it was only added to the Act in 2010 by the Balanced
Refugee Reform Act, SC 2010, c 8, s 4. Given the provisions of section 32
of the Balanced Refugee Reform Act, any H&C Application must be
assessed in light of the Immigration and Refugee Protection Act as of the date
that the H&C Application was made. As the H&C Application in the
instant case was made on December 31, 2004, the provisions of 25(1.3) do not
apply.
[41]
Moreover,
while the Respondent is correct in stating that the analysis for hardship in an
H&C Application is distinct from a PRRA analysis, several cases have
affirmed that where a H&C analysis relies on a faulty PRRA analysis, the
decision will be flawed (Divakaran at para 28; Ogbebor v Canada
(Minister of Citizenship and Immgration), 2011 FC 1331, at para 24; Rana
v Canada (Minister of Citizenship and Immigration), 2009 FC 947, at para
1).
[42]
It
is clear from the fourth full paragraph of page seven of the Officer’s decision
that the Officer relied on the PRRA risk analysis in reaching his decision. In
fact, the Officer re-states the same faulty test from his PRRA risk analysis: “[t]here
was no evidence that the minor applicant converted to Christianity or that she would
be persecuted or harmed by religious extremists because she was a convert or
she was brought up in Canada.”
[43]
Accordingly,
I find that in this instance that this court’s decision with regard to the
assessment of risk in the PRRA Application is determinative of the result of
the instant H&C Application. The Officer applied the incorrect legal test
when assessing risk in the PRRA Application and similarly applied the incorrect
legal test with respect to considering unusual, underserved or disproportionate
hardship in the H&C Application.
D. Was the Officer’s Decision
Unreasonable?
[44]
Given
my decision above, I need not consider this issue in the context of the H&C
Application.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
Applicants’ application is allowed and referred back to a differently
constituted Board for reconsideration;
2. No question is to be
certified.
"Michael D.
Manson"
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