Docket: IMM-632-13
Citation:
2014 FC 730
Ottawa, Ontario, July 22, 2014
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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ISMET MAMAK
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Applicant
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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
I.
Introduction
[1]
This judicial review is of a decision by the
Refugee Protection Division [RPD] denying the Applicant refugee protection
pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act,
SC 2001, c 27.
II.
Background
[2]
The Applicant is a Turkish citizen of Kurdish
descent. He suffered arrest and beatings at the hands of the Turkish police on
several occasions.
[3]
He escaped to the USA, and from there he came to
Canada and claimed refugee protection.
[4]
The RPD identified lack of subjective fear as
the determining issue. The RPD did not accept that it took until the third
police visit for him to develop a subjective fear; reasoning that he should
have developed that fear based on the second such visit. The Applicant’s
failure to claim refugee protection when he arrived in the USA before coming to Canada also counted against his refugee claim.
Therefore,
the RPD concluded that the Applicant did not have a subjective fear as required
by s 96 and by s 97.
III.
Analysis
[5]
The standard of review is dependent on the issue
being addressed. While the standard is usually reasonableness (Hou v Canada (Minister of Citizenship and Immigration), 2012 FC 993, 417 FTR 19), where the
issue is one of law, particularly as related to the legal test to be applied,
the standard is correctness.
[6]
The RPD made a finding of “no
subjective fear” without indicating whether the finding applied to the s
96 issues or the s 97. If the finding related to s 96, it must be assessed as
to reasonableness. If, on the other hand, it was germane to s 97, it is an
error of law on the “face of the record” as
subjective fear is not a determinative issue on a s 97 analysis. To the extent
that the RPD conflated the section 96 and 97 tests, it committed a reviewable
error (Barros v Canada (Minister of Citizenship and Immigration), 2013
FC 894 at para 20; Li v Canada (Minister of Citizenship and Immigration),
2005 FCA 1 at para 33).
Further,
if it was not made in respect of s 97, the RPD erred because it failed to give
any consideration to s 97. The entirety of the decision is focused on the
Applicant’s subjective fear which is irrelevant to the s 97 determination.
[7]
These errors are dispositive of this judicial
review. However, if they were not, the Court would have difficulty with the reasonableness
of the decision because the RPD failed to articulate why the Applicant should
have fled after the second “arrest” rather than after the third.
IV.
Conclusion
[8]
Therefore, this judicial review will be allowed,
the RPD decision quashed and the matter remitted back for determination by a
differently constituted panel.
[9]
There is no question for certification.
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