Docket: IMM-1660-15
Citation:
2015 FC 1124
Ottawa, Ontario, September 28, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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HASAN KORKMAZ
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Applicant
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and
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MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act] regarding Citizenship and Immigration Canada’s [CIC] decision,
dated February 12, 2015, to reject the Applicant’s application for a
pre-removal risk assessment [PRRA] made pursuant to section 112 of the Act.
I.
Background
[2]
The Applicant is a citizen of Turkey. He came to Canada in June 2009 and sought refugee protection one month later alleging he faced
a risk of persecution if he were to return to Turkey on the grounds of his
Kurdish ethnicity and Alevi faith. His claim for refugee protection was denied
on August 9, 2011 by the Refugee Protection Division of the Immigration and
Refugee Board of Canada [the RPD], which found that the Applicant lacked
credibility and moreover, had an internal flight alternative in Istanbul.
[3]
The RPD noted the following at paragraphs 7 and
8 of its decision:
Furthermore, the claimant is the very
definition of a forum shopper. The claimant secured a US visa and had relations in Rochester where he landed on May 9, 2009. The claimant stayed in the US for more than a month before approaching the border to make an asylum request in Canada. The claimant stated that he set out to make a request for asylum in Canada when he left Turkey in May which is why he did not apply for asylum in the US. The claimant is certainly familiar with asylum policy. The claimant is himself a failed claimant
(Germany) and has numerous relations who have status in other countries
including the US, Canada, Germany, and Norway. Of course in a sense claiming in
Canada is a rational decision. In 2009 UNHCR statistics Canada received 242 asylum claims from Turkey and had a 77% positive decision rate for those which
were adjudicated. In this document the US rate is not mentioned because they
received under 100 claims.
Although the claimant has alleged that he
has constantly faced persecution as an Alevi and a Kurd, the claimant has over
the past number of years traveled widely in Europe. All of the countries he has
visited have signed the 1951 Convention on the Status of Refugees. Since 2000
the claimant has secured visas to Finland, Austria, Norway, Moldova and even a 10 year B1 US visa issued in 2009.
[4]
On November 16, 2011, the Applicant’s
application for leave and judicial review of the RPD’s decision was denied. He
then applied for permanent residency based on humanitarian and compassionate
considerations and that application was rejected on February 12, 2014.
[5]
In June 2014, the Applicant claims that he tried
to obtain a passport at the Turkish Embassy and learned then that there were
three warrants out for his arrest in Turkey. The Applicant believes that the
Turkish government fabricated these charges because it believes that he has
connections with the Kurdish cause.
[6]
On July 23, 2014, the Applicant applied for a
PRRA on the basis that he now fears he would face further persecution should he
return to Turkey because of what he learned while applying for a new passport.
In support of his PRAA application, he presented a letter from his lawyer in Turkey and copies of the three arrest warrants and a number of other Turkish court
documents. The Applicant also claims that since he will be arrested as soon as
he lands in Turkey, he no longer has the option of an internal flight
alternative in Istanbul.
[7]
The Applicant’s PRRA application was dismissed
on the ground that this new evidence did not establish the existence of a
well-founded fear of persecution under section 96 of the Act or the
establishment of a risk pursuant to section 97 of the Act. In particular, the
PRRA Officer found that the Applicant does not have the profile of a militant
of the Kurdish cause for whom the authorities in Turkey would have an
interest. The PRRA Officer also had concerns with the poor quality and
probative value of the documentary evidence filed by the Applicant. He noted
in this respect that the lawyer’s letter was undated and did not indicate its
mode of transmission to the Applicant
II.
Issues and Standard of Review
[8]
The sole issue to be determined in this case is
whether the PRRA Officer committed a reviewable error in placing little or no
probative value to the new evidence submitted by the Applicant in support of
his PRRA application.
[9]
As is well-established, PRRA applications are
fact-driven inquiries warranting the application of the reasonableness standard
of review (New Brunswick (Board of Management) v Dunsmuir, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir]; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para 46 [Khosa]; Chowdhury
v Canada (Citizenship and Immigration), 2012 FC 944, at para 10 [Chowdhury]).
The assessment conducted by the PRRA Officer, including his or her conclusions
regarding the proper weight to be accorded to the evidence, warrants
considerable deference because of the officer’s specialized expertise in risk
assessment (Adetunji v Canada (Minister of Citizenship and Immigration),
2012 FC 708, 431 FTR 71, at para 22 [Adetunji]; Raza v Canada (Citizenship
and Immigration), 2006 FC 1385, 304 FTR 46, at para 10 [Raza]; Malshi
v Canada (Citizenship and Immigration), 2007 FC 1273, at para 17; Mikhno
v Canada (Citizenship and Immigration), 2010 FC 385, at para 27).
[10]
Thus, the role of the Court is to review the
impugned decision and only interfere if it lacks justification, transparency,
intelligibility, and falls outside the range of possible, acceptable outcomes,
defensible in fact and in law (Dunsmuir, above at para 47). In doing
so, the Court must be careful not to reweigh the evidence before the PRRA Officer
(Kim v Canada (Minister of Citizenship and Immigration), 2005 FC 437,
272 FTR 62, at para 47; Chowdhury, above at para 19).
III.
Analysis
[11]
The statutory authority for a pre-removal risk
assessment is set out in section 112 of the Act, which enables the Minister or
his delegate to determine whether a person who faces a removal order is in need
of protection. It is now well established that in reviewing new evidence pursuant
to section 113(a) of the Act, the role of the PRRA Officer is to consider the Applicant’s
present situation rather than sit as an appeal tribunal to revisit the RPD’s
factual and credibility findings (Raza, above at para 22).
[12]
In light of the fact that the PRRA Officer
considered the Applicant’s application for protection pursuant to both sections
96 and 97 of the Act, I must keep in mind the relevant tests under both
sections in the present application for judicial review.
[13]
Under either section 96 or 97 of the Act, the
Applicant bears the onus of establishing, on a balance of probabilities, that
he is in need of Canada’s protection (Adetunji, above at para 19; Ferguson
v Canada (Minister of Citizenship and Immigration), 2008 FC 1067, at para
22; Adjei v Canada (Minister of Employment & Immigration), (1989) 2
FC 680, at para 5 [Adjei]). As I previously articulated in Kioko v
Canada (Citizenship and Immigration) 2014 FC 717, the Applicant must also
demonstrate under section 97 of the Act that removal to his country of
nationality would subject him to a personal risk to his life, or to a risk of
cruel and unusual treatment or punishment. The risk must be forward-looking and
it is considered personalized if the risk is more significant than the ones
generally faced by the population of the country of nationality (Campos v Canada (Minister of Citizenship and Immigration), 2008 FC 1244, at para 9; Andrade
v Canada (Minister of Citizenship and Immigration) 2010 FC 1074, at para
48). In contrast, in the context of an assessment pursuant to section 96 of
the Act, the Applicant has the burden of demonstrating that there is a serious
possibility of persecution if he were to return to Turkey (Adjei, above
at para 8).
[14]
The Applicant submits that the PRRA Officer
unreasonably gave little or no evidentiary value to the letter from his Turkish
lawyer and to the three arrest warrants. The Respondent contends that the PRRA
Officer’s decision is reasonable and that the Applicant merely disagrees with
the PRRA Officer’s assessment of the evidence and is asking this Court to
reweigh the evidence that was before the PRRA Officer.
[15]
Given the amount of deference owed to the PRRA Officer
in his assessment of documentary evidence, I am of the view that it was
entirely within the PRRA Officer’s purview to reject the lawyer’s letter since
the document was undated and the Applicant did not provide any details as to
how he obtained the letter.
[16]
Moreover, it was also entirely within the PRRA Officer’s
purview to give a low evidentiary value to the arrest warrants. The arrest warrants
present several anomalies which were noted by the PRRA Officer. Firstly, the
warrants do not reconcile with their translated versions so that it is unclear
whether the Applicant was actually charged for attending a cemevi. Secondly,
the three arrest warrants were issued after the Applicant had already left Turkey and the warrants do not indicate the date on which the offenses were committed.
Thirdly, another document submitted by the Applicant, namely, a record of an
undated hearing, which the PRRA Officer granted no weight, does not correspond
to any of the file numbers on the arrest warrants. Lastly, the Applicant was
charged with offenses that do not resemble charges usually laid against Kurdish
nationalists or militants in Turkey.
[17]
Despite these anomalies, the PRRA Officer
considered the Applicant’s PRRA application in its entirety and gave a lengthy
explanation as to why the new evidence was insufficient to establish the
existence of a new risk or the possibility of persecution if the Applicant were
to return to Turkey.
[18]
Given the country documentary evidence on the
persecution of Kurds in Turkey, it was not unreasonable for the PRRA Officer to
find that the Applicant did not fit the profile of Kurds normally targeted in Turkey. The PRRA Officer correctly noted, in my view, that Kurds who do not openly support
Kurdish rights or who do not “parade their Kurdish
identity too brazenly” are not targeted by the Turkish government. The
PRRA Officer stressed that the Applicant did not indicate in his RPD or PRRA
applications that he supported Kurdish nationalist causes or that state actors
perceived him to be a supporter of Kurdish nationalist causes.
[19]
The PRRA Officer also noted that the charges
laid against the Applicant were not the same types of charges laid against
persons persecuted for being involved in Kurdish nationalist causes. The PRRA
Officer pointed to country documentation evidence indicating that Kurdish
intellectuals and political activists are often charged with terrorism related
offences or for offenses related to being connected with “illegal organizations.” The PRRA Officer noted in
this respect that the charges against the Applicant were laid pursuant to
sections 157 and 207(1) of the Turkish Penal Code, which relate to fraud and
counterfeiting a personal certificate respectively. Thus, it was open to the
PRRA Officer to find that the charges laid against the Applicant did not
correspond with charges normally laid against Kurdish nationalists. This
finding is well within the range of acceptable outcomes.
[20]
Moreover, the PRRA Officer found that the
country documentation evidence does not support the Applicant’s claim that the
Turkish government persecutes or lays charges against Alevis who practice their
faith in cemevis. The PRRA Officer pointed to documentary
evidence demonstrating that Alevis do not face persecution in Turkey, but
instead are subjected to a certain amount of discrimination by the state since cemevis
do not have legal status as worship houses in Turkey, the state does not
fund the construction of cemevis, and some municipalities in Turkey do
not permit the construction of new cemevis.
[21]
Given the foregoing, I find that the PRRA Officer’s
decision not to give any evidentiary value to the new evidence submitted by the
Applicant falls within a range of acceptable outcomes, defensible in fact and
law. Therefore, I see no reason to interfere with this decision.
[22]
No question of general importance has been
proposed by the parties. None will be certified.
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