Date: 20011101
Docket: A-604-00
Neutral citation: 2001 FCA 331
CORAM: ROTHSTEIN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
MURTAZA OZDEMIR
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario, on November 1st, 2001.
Judgment delivered from the Bench at Toronto, Ontario, on November 1st, 2001.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20011101
Docket: A-604-00
Neutral citation: 2001 FCA 331
CORAM: ROTHSTEIN J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
MURTAZA OZDEMIR
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Thursday, November 1, 2001)
EVANS J.A.
[1] In August 1996, Murtaza Ozdemir, a Turkish Kurd of the Alevi religion, was refused refugee status by the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board did not believe his evidence. He applied to be a member of the Post Determination Refugee Claimants in Canada Class, but his application was rejected in January 1999 by a Post Claim Determination Officer ("PCDO"), who concluded that he would not be at risk if he were returned to his home country.
[2] Mr. Ozdemir applied for a judicial review of that decision, but the application was dismissed. The Motions Judge certified the following question:
Should a PCDO be required to comment on case specific documents or documents which are specific to the application in making his or her decision?
[3] In addition to documents describing country conditions in Turkey for Kurdish people, Mr. Ozdemir submitted to the PCDO material about himself that had not been before the Board. There were three items of new evidence.
[4] The first was a letter from a lawyer regarding an interview that he had had with Mr. Ozdemir's wife, who had remained in Turkey. The letter indicated that she had told the lawyer that police had visited her home in 1997 to enquire about her husband, and had treated her and her family roughly. The second was a letter from a village headman stating that Mr. Ozdemir's wife had told him of the police visit. The third was a newspaper photograph of a 1995 demonstration that Mr. Ozdemir had stated in his evidence to the Board that he had attended.
[5] The basis of Mr. Ozdemir's challenge to the PCDO's decision is that her reasons do not refer to the documentary evidence described above, particularly when she found that there was insufficient credible evidence that he was still being actively sought by the police, or that his family in Turkey was encountering difficulties because they are Alevi Kurds.
[6] The complaint about the PCDO's decision can be expressed in law in at least two ways. First, it could be said that the decision should be set aside under paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7, because it was based on an erroneous finding of fact, namely that Mr. Ozdemir would not be at risk of persecution if he were returned to Turkey, a finding that the PCDO had made in a perverse or capricious manner or without regard to the material before her.
[7] Second, the decision should be set aside for breach of the duty of fairness because, by failing to address the new evidence, the PCDO had not provided adequate reasons for her decision. In my opinion, the applicant has made out neither ground of review on the facts of this case.
[8] As for the first point, there was ample evidence to justify the PCDO's conclusion that the appellant would not be at risk if returned to Turkey, if the totality of the material before her is considered, including the reasons of the Board for rejecting Mr. Ozdmir's refugee claim, namely, the implausibility of his story and his lack of credibility. The probative value of the new evidence was relatively small. Mr. Ozdmir's wife's allegations about the continuing interest of the police in her husband concerned an incident that had occurred nearly two years before the PCDO made her decision, and were relayed through third parties. The newspaper photograph was of no value at all. Hence, it cannot be said that the PCDO's decision was made in breach of paragraph 18.1(4)(d).
[9] As for the second point, which was based on the inadequacy of the reasons, if the PCDO was required by the duty of fairness to give reasons for her decision, her reasons sufficed to discharge that duty. Decision-makers are not bound to explain why they did not accept every item of evidence before them. Much depends on the significance of that evidence when it is considered in light of the other material on which the decision was based: see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35.
[10] Nor will a reviewing court infer from the failure of reasons for decision specifically to address a particular item of evidence that the decision-maker must have overlooked it, if the evidence in question is of little probative value of the fact for which it was tendered, or if it relates to facts that are of minor significance to the ultimate decision, given the other material supporting the decision.
[11] In this case, the new evidence was not of sufficient importance or probative value that the duty of fairness required the PCDO to deal with it expressly in her reasons. Further, it would be inappropriate to require PCDOs, as administrative officers, to give as detailed reasons for their decisions as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing. In our opinion, the reasons given by the PCDO adequately explain the basis of her decision and do not support an inference that she failed to consider all the material before her.
[12] For these reasons, the appeal will be dismissed and the certified question answered as follows:
A PCDO is not required to comment on case specific documents that lack probative value, even if they relate to the applicant.
"John M. Evans"
J.A.
Email this Content