Docket: IMM-524-17
Citation:
2017 FC 681
Toronto, Ontario, July, 13, 2017
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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BULENT BALCI
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT
AND REASONS
UPON application
for judicial review by Bulent Balci [the Applicant] pursuant to s. 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA],
of a decision made by a Senior Immigration Officer [PRRA Officer], dated
January 27, 2017, in which the Applicant received a negative Pre-Removal Risk
Assessment [PPRA];
AND UPON reading
the pleadings and proceedings, and upon hearing what was alleged by counsel for
the parties;
AND UPON
considering the reasons of Justice James Russell of the Federal Court in granting
the Applicant’s stay of removal motion on February 14, 2017, in which he held:
1.
The Applicant has raised several grounds for
serious issue. And, on the low threshold applicable in this motion (not
frivolous or vexatious), I find that serious issue is established. For example,
the Officer fails to consider that, although the Applicant was found by the
Refugee Protection Division [RPD] to be an Alevi/Kurd who was assimilated into
Turkish society, the Applicant’s more recent involvement with the People’s
Democratic Party [HDP] (the Officer appears to accept that he is at least a
member) means that he is now asserting his Kurdish identity in a way that was
not the case when he made his previous claim. I also think it is not frivolous
or vexatious for the Applicant to argue that the Officer read the evidence in a
selective way when considering future risks for those like the Applicant, who
are Kurdish and politically involved. The Applicant points out that there was
evidence before the Officer to support that assimilated Kurds, even in western
cities, are at risk. The UK Home Office Country Information report for March
2016 refers to the Minority Rights Group International report of September 2015
and claims of 1,260 members of the HDP having been detained, including “members
of district and provincial branches of the HDP”, as well as more high profile
members. The Applicant is a member of a provincial branch, and there are
reports of police violence against Kurds and mob violence.
2.
The Applicant is an HDP member whose wife has
been convicted in Turkey of conducting illegal demonstrations in support of
illegal organizations, including the Kuridstan Worker’s Party [PKK] and the
Revolutionary Peoples Liberation Party [DHKP-C]. In order to avoid the sentence
imposed, the wife and the Applicant fled to Canada. This appears to me to raise
the Applicant’s profile as an HDP member in a material way that places him at
real risk upon return. The wife claims that the Applicant was also a
participant in the demonstrations.
3.
There is an Al Jazeera report of July 2016 that
refers to people having to set up self-defence units to protect themselves
against Justice and Development Party (AKP) mobs, and that the most vulnerable
groups are “woman, Alevis and Kurds”.
AND UPON
determining that this application should be granted for the following reasons:
1.
The Applicant is a Kurdish citizen of Turkey, of
the Alevi religion from the central region of the country. He came to Canada in
2001 and filed a claim for refugee protection which was rejected by the Refugee
Protection Division [RPD] on June 2, 2003, for a number of reasons including
credibility.
2.
However, central to the RPD’s finding, the Board
Member stated:
The claimant alleges to be a Kurd, but he
does not speak the Kurdish language. He stated that his parents lost their ties
to Kurdish culture ever since the family was forces out of their ancestral
homeland. The claimant stated that he is Alevi but a non-practicing one. In my
opinion, the claimant falls into a category of Alevi/Kurds who are completely
assimilated into the Turkish society and do not face a risk of persecution
because of their Kurdish or Alevi background. The documentary evidence states:
Outside
southeast Turkey, Kurds do not usually suffer persecution, or even bureaucratic
discrimination, provided that they do not publicly assert their Kurdish ethnic
identity. Kurds who publicly or politically assert their Kurdish ethnic
identity run the risk of harassment, mistreatment and prosecution. In urban areas
Kurds are largely assimilated, may not publicly identify themselves as Kurds
and generally do not endorse Kurdish separatism.
[Emphasis
added]
3.
Leave to apply for judicial review of the RPD
decision was denied by this Court and he returned to Turkey in 2005. However,
having arranged a fraudulent marriage of convenience to a Canadian citizen in
2004, he returned to Canada as a sponsored permanent resident in 2007. He then
divorced his Canadian wife and remarried his first wife, a Turkish woman, and then
sponsored her and their child. He was reported for misrepresentation, but left
Canada in 2010 having failed to appear at an Immigration Appeal Division
hearing convoked for the purpose. He subsequently returned via smugglers to
Canada in July 2016 with his first and present wife and the two children they
now have, and presented himself to a Canada Border Services Agency officer
where he was given an opportunity to file the PRRA which is the subject of this
application.
4.
His claim of new risk is based on allegations
that both his profile and that of Turkey have changed since the RPD decision of
2003.
5.
In terms of standard of review, the issue is
reasonableness. In Dunsmuir v New Brunswick (2008 SCC 9 at para 47 [Dunsmuir],
the Supreme Court of Canada explained what is required of a court reviewing on
the reasonableness standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
6.
The Supreme Court of Canada also instructs that
judicial review is not a line-by-line treasure hunt for errors; the decision
should be approached as an organic whole (Communications, Energy and
Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013
SCC 34 at para 54). Further, a reviewing court must determine whether the
decision, viewed as a whole in the context of the record, is reasonable (Construction
Labour Relations v Driver Iron Inc, 2012 SCC 65 at para 3; see also Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62).
7.
Upon review of the reasons of the PRRA Officer,
it is clear that the Officer was aware of the activities of the Applicant in
Turkey since his return and in particular that he was involved in Kurdish
politics, that he and his wife became members of the BDP (Peace and Democracy
Party) and its successor the HDP (People’s Democratic Party) which was a pro-Kurdish
political party; the Officer states that in the reasons for the decision under
review.
8.
The PRRA Officer also noted the facts of abuse including
mistreatment and two police raids on their house, as alleged by the Applicant, as
well as noting that the couple had become involved in protests, that they
actively sought and were refused permission to have their children exempt from
Sunni education and other potentially relevant activities in a PRRA; again
these facts are in the Officer’s reasons.
9.
The PRRA Officer specifically noted the spouse
was charged and sentenced for attending an unauthorized meeting and resisting
police, although the Officer did not mention the convictions related to events found
to be Kuridstan Worker’s Party [PKK] and the Revolutionary Peoples Liberation
Party [DHKP-C] events, which are illegal organizations actively suppressed by
the Turkish government.
10.
The PRRA Officer concluded on the basis of
country condition documents that HDP party members at risk were those who were “prominent” or “high ranking”,
and concluded that the Applicant did not fit into that category; in my view
this finding was not justified on the law, i.e., was not reasonable per Dunsmuir,
in that it failed to take into account and consider contrary country condition
evidence to the effect that thousands of HDP members were detained and arrested
after the coup in July, 2016, albeit that evidence did not specify whether they
were prominent or ordinary party members.
11.
The Officer appears to have adopted a revised
country condition assessment from that found by the RPD in 2003 regarding the
risk to Alevi/Kurds. The risk to Alevi/Kurds as found by the RPD is set out
above in paragraph 2 above: they are not at risk unless they publicly or
politically assert their Kurdish ethnic identity. However, the PRRA Officer
concluded that Kurds are at risk if they held a “prominent
position in” or were “high ranking”
members of the Kurdish party, HPD.
12.
In concluding the assessment of risk based on
the Applicant being an Alevi/Kurd, the Officer stated: “As
mentioned earlier, however, the RPD found in the Applicant’s refugee claim, that
the Applicant fell into a category of Alevi/Kurds who are completely
assimilated into the Turkish society and did not face a risk of persecution
because of their Kurdish or Alevi background.” The Officer did not note the
RPD’s exception to its finding namely that: “[K]urds
who publicly or politically assert their Kurdish ethnic identity run the risk
of harassment, mistreatment and prosecution.”
13.
As such, the Officer appears to have found
conditions for Alevi/Kurds post-coup different, and improved from their
situation in 2003, by indicating that in 2017, only high ranking or prominent
members of the HDP are at risk, while in 2003 Kurds ran the risk of harassment,
mistreatment and prosecution for merely publicly or politically asserting their
Kurdish ethnic identity. I am unable to see how that decision was arrived at,
i.e., it lacks intelligibility, and in that connection it is possible the RPD’s
exception was overlooked. Therefore this aspect of the decision is unreasonable
per Dunsmuir.
14.
The Officer then compared the general risk
profile to the profile of the Applicant and found they did not match; this
assessment would have been reasonable except for the fact that the general risk
profile for Alevi/Kurds was unreasonable as just outlined.
15.
The PRRA Officer also, and properly in my view, noted
that the RPD had credibility concerns with the Applicant, and also noted
weaknesses in some of the evidence relied upon by the Applicant in his PRRA
application. In my view these findings were justified on the record.
16.
The Applicant says the PRRA Officer failed to
consider the corroborating evidence supplied in his wife’s basis of claim [BOC]
on her refugee claim, upon which the Applicant relied, and also failed to
consider corroborating court records confirming her conviction and sentence for
attending unlawful rallies. Upon review, I find that the wife’s BOC
corroborates point-by- point important components of the Applicant’s allegations.
The Officer made no mention of the BOC or court record. While Officers are
presumed to have reviewed the record, it is not intelligible to me how the
Officer concluded in this case and on this evidence that “there is insufficient evidence to make a finding that, on a
balance of probabilities, the Applicant will be viewed as a political dissident
by the state and therefore might face the risk of detention and mistreatment.”
Neither the Applicant’s nor his wife’s evidence was rejected as not credible.
17.
The matter of the wife’s conviction raising the
risk profile of the Applicant was not argued before the PRRA Officer nor was it
raised by the Applicant in this case, although it was discussed during the
hearing. I need not consider that matter in the circumstance.
18.
Considering the above, and reading the decision
as a whole, I am persuaded that the PRRA decision is unreasonable. I reach this
conclusion because it fails to meet criteria of reasonableness set by Dunsmuir
as noted above. It therefore falls outside the range of possible, acceptable
outcomes which are defensible in respect of the facts and law in this case.
19.
Neither party proposed a question of general
importance to certify, and none arises.
JUDGMENT in IMM-524-17
THIS COURT’S JUDGMENT is that judicial
review is granted, the decision of the PRRA Officer is set aside, the matter is
remitted for redetermination by a different PRRA Officer, no question of
general importance is certified, and there is no order as to costs.
“Henry S. Brown”
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