Docket: IMM-4051-15
Citation:
2016 FC 302
Ottawa, Ontario, March 10, 2016
PRESENT: The
Honourable Mr. Justice Martineau
|
BETWEEN:
|
|
EMRAH
KARAFAZLIOGLU
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for the judicial review
of a decision of the Refugee Appeal Division [RAD] of the Immigration and
Refugee Board [Board], dated August 12, 2015, dismissing the appeal of the
applicant and confirming the decision of the Refugee Protection Division [RPD]
that the applicant is neither a Convention refugee nor a person in need of
protection pursuant to sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act].
[2]
The 59 paragraph decision of the RPD rested on a
number of credibility findings. The RPD also examined the documentary evidence
and analyzed the applicant’s alleged risk profile in Turkey on the basis of his
Armenian ethnicity; his Christian religion; his leftist political activities,
including his involvement with the Freedom and Solidarity Party (Özgürlük ve
Dayanisma Partisi); and his being a conscientious objector to military service.
The RDP drew a negative inference as to the applicant’s subjective fear because
of his failure to claim refugee status in the three week period he was in the
United States (paragraphs 20 and 21).
[3]
In his appeal before the RAD, the applicant
raised four distinct issues:
(a)
The RPD failed to consider the documentation;
(b)
The RPD made selective reference with respect to
the evidence;
(c)
The RPD’s findings were implausible and
inconsistent; and
(d)
The RPD erred in its conclusion with respect to
the applicant’s failure to claim in the United States.
[4]
The RAD found that the Federal Court’s decision
in Huruglica v Canada (Citizenship and Immigration), 2014 FC 799
(CanLII) at paras 54-55 [Huruglica] provided guidance with respect to
the scope of review by the RAD of the findings made by the RPD. The RAD noted
diverging jurisprudence from the Federal Court, but affirmed that as per the
decision in Alyafi v Canada (Citizenship and Immigration), 2014 FC 952
(CanLII) [Alyafi], the RAD may apply either approach pending a final
decision on the matter from the Federal Court of Appeal or the Supreme Court of
Canada. Accordingly, the RAD affirmed that it would come to an independent
assessment of whether the applicant is a Convention refugee or a person in need
of protection, affording deference to the RPD’s credibility findings. This
approach is not challenged by the parties in the present case.
[5]
That being said, the RAD’s reasons focus
exclusively on the applicant’s lack of subjective fear, and do not include any
objective analysis of risk. After conducting an analysis of the applicant’s
failure to claim in the United States, the RAD states:
[17] Based on the evidence adduced, the
RAD finds on the balance of probabilities that the Appellant lacks
subjective fear of persecution if he were to return to the [sic] Turkey
based on his failure to claim for asylum in the United States which is a
signatory to the Refugee Convention. [Emphasis added]
[6]
Nevertheless, two paragraphs later, the RAD
concludes that the applicant has also failed to provide an objective basis for
his claim:
[20] Given the lack of objective and
subjective basis for his claim, the RAD finds that the Appellant has not
satisfied the burden of establishing a serious possibility of persecution on a
Convention ground, or that he would personally be subjected, on a balance of
probabilities, to a danger of torture, or a risk of life, or a risk of cruel
and unusual treatment or punishment, upon his return to Turkey.
[21] Having found the failure to claim
asylum in the United States to be the determinative issue, the RAD will not
consider the other issues raised by the Appellant. [Emphasis added]
[7]
The applicant asserts that the RAD failed to
consider his record as a whole, relying instead on one factor alone, and
excluding consideration of all other submissions and evidence. By focusing on
the issue of the applicant’s failure to claim asylum in the United States, the
RAD failed to address any of the other equally determinant issues raised by the
applicant at the time of appeal. The applicant further submits that the
memorandum presented by the applicant at the time of appeal raised serious
concerns about his current status as a draft evader, in the event that he would
be required to return to Turkey. The applicant notes that he presented several
pieces of documentary evidence in support of this issue. The applicant also
states that he made submissions regarding the treatment of Armenian-Christians
in Turkey, as well as concerning his status as a conscientious objector. The
applicant submits that the RAD’s failure to address these issues constitutes a
reviewable error.
[8]
The applicant further states that the RAD erred
by failing to consider additional evidence that was submitted – namely, a
decision of the RPD dated July 2, 2015 concerning a relative and a cousin of
the applicant. According to the applicant, the claimants in that decision were
determined to be Convention refugees on the basis of facts and circumstances
similar to those of the applicant in the present case. This decision only
became available after the applicant’s appeal record was filed. The new
evidence was submitted on August 12, 2015 (the same day as the RAD decision);
however, this evidence was returned to the applicant with a letter from the RAD
stating that it had not been filed in time. The applicant states that the RAD
erred in not considering this evidence, in light of its importance.
[9]
Finally, with respect to his failure to apply
for asylum in the United States, the applicant reiterates that he has a cousin
in Canada who successfully claimed refugee status, and who advised him of how
to cross the border. Despite having a valid United States visa, the applicant
has no family in that country, and preferred to seek asylum in Canada – a fact
that does not diminish his fear of persecution in Turkey. The applicant
therefore states that the RAD’s conclusion regarding his failure to claim in
the United States is faulty.
[10]
In turn, the respondent submits that a failure
to seek asylum in a signatory country through which an applicant travels before
coming to Canada is a relevant consideration in rejecting a claim. Furthermore,
the Federal Court has found that absent a satisfactory explanation for a delay
in seeking asylum, such delay can be fatal to an applicant’s claim. In the
present case, the respondent submits that the applicant’s explanation is an
unacceptable reason to delay seeking asylum, strongly indicating a lack of
subjective fear. The respondent also notes that the mere fact that an applicant
has one relative living in Canada is not sufficient to overcome the fact that
he or she did not claim refugee status in the United States as quickly as possible.
Therefore, the respondent submits that there is no reviewable error in the
negative inference that the RAD drew from the applicant’s failure to file a
claim in the United States, and that this failure was a legitimate factor for
the RAD to consider in assessing the subjective aspects of the claim. As a
result, the RAD’s decision was reasonable.
[11]
Having read the application records filed by the
parties and considered the written and oral arguments made by counsel, I am
satisfied that the RAD rendered an unreasonable decision in dismissing the
applicant’s appeal, and also that the matter should be sent back for
redetermination by another member of the RAD.
[12]
First, the RAD member made no analysis
whatsoever of the evidence on record and of the merit of the multiple grounds
of appeal raised by the applicant, except to review the reasons and
explanations provided by the applicant to the RPD for not claiming refugee
status in the United States. Second, the RAD gratuitously concluded that a lack
of subjective fear was sufficient to dispose of the claim made by the applicant
pursuant to sections 96 and 97 of the Act.
[13]
I agree with the applicant that the RAD’s
determination regarding the lack of an objective basis for the applicant’s
claim is not supported by any reasons, and was made without any apparent
analysis of factors other than the applicant’s failure to claim in the United
States and the inference that he therefore lacked subjective fear. Indeed, the criteria
for claiming protection under sections 96 and 97 of the Act differ. In
particular, while a person seeking protection as a Convention refugee pursuant
to section 96 must demonstrate a subjective fear of persecution, there is no
such requirement under section 97, which instead requires an objective assessment
of risk. While it may be within the discretion of the Board to determine
whether it deals with claims made under both sections 96 and 97 of the Act separately
or in an integrated analysis – for example, in cases where credibility or the
adequacy of state protection is the determinative issue (Velez v Canada
(Citizenship and Immigration), 2010 FC 923 (CanLII) at para 22) – the Court
must nonetheless be satisfied that the RAD considered the criteria applicable
to each section. The RAD failed to do so in the present case.
[14]
In addition, the RAD acknowledged that the RPD
found the applicant to lack credibility with respect to several aspects of his
claim. While the RAD may grant deference to the RPD on issues of credibility (Huruglica
at para 55), in cases where a credibility finding is based not only on
testimony, but also on evidence in the record, the RPD would enjoy no advantage
over the RAD when making its findings, thereby requiring the RAD to reconsider
evidence on the topic (Yetna v Canada (Citizenship and Immigration), 2014
FC 858 (CanLII) at paras 21-25; Alyaf at para 34). In the
present case, the applicant’s written submissions to the RAD raised concerns
regarding the RPD’s apprehension of the documentary evidence – concerns that
may have been relevant to the RPD’s credibility findings. As a result, the RAD
would have likely been required to address this evidence in coming to its own
conclusion concerning the applicant’s credibility.
[15]
For these reasons, the Court grants the
application for judicial review and orders that the decision of the RAD be set
aside and that the matter be referred back for determination by a differently
constituted panel. Counsel agree that this case does not raise a question of
general importance.
Email this Content