Docket: IMM-5900-20
Citation: 2023 FC 23
Ottawa, Ontario, January 5, 2023
PRESENT: Mr. Justice Norris
| BETWEEN:
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| HASAN GORGULU
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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.
OVERVIEW
[1] The applicant is a citizen of Turkey. He sought refugee protection in Canada but his claim was rejected in 2014.
[2] In 2019, the applicant applied for a pre-removal risk assessment (“PRRA”) under subsection 112(1) of the Immigration and Refugee Protection Act, SC 2001, c 27. In support of this application, he provided three documents written in the Turkish language (“the Turkish documents”). Documents purporting to be English translations of the Turkish documents (“the English documents”) were also provided; however, they were not certified to be accurate by the translator.
[3] The PRRA application was refused in a decision dated January 14, 2020. In their reasons for rejecting the application, the Senior Immigration Officer stated that, since the English documents were not properly certified to be accurate translations of the Turkish documents, they would not be considered. The Turkish documents were not considered either.
[4] The applicant now applies for judicial review of the PRRA decision under subsection 72(1) of the IRPA. He contends that the officer’s treatment of the English documents is unreasonable and, as a result, that the decision as a whole is unreasonable.
[5] As I explain in the reasons that follow, I agree that the officer’s treatment of the English documents is unreasonable and that this calls into question the reasonableness of the decision as a whole. This application must, therefore, be allowed and the matter remitted for reconsideration by a different decision maker.
II.
BACKGROUND
A.
The Refugee Claim
[6] The applicant was born in June 1980. He is Kurdish and a follower of the Alevi branch of Shi’a Islam.
[7] The applicant arrived in Canada from the United States in January 2014. He sought refugee protection in Canada on the basis of his fear of persecution due to his religion, his ethnicity, and his political opinion. The applicant had been in the United States for five months before coming to Canada. He had also sought refugee protection there but left before his claim was determined.
[8] The Refugee Protection Division (“RPD”) of the Immigration and Refugee Board of Canada rejected the applicant’s claim in a decision dated April 29, 2014. The RPD concluded that, assuming the applicant is Alevi as he claims, he would not face persecution in Turkey on this basis. The RPD also made adverse credibility findings with respect to the narrative of events that underlay the applicant’s fear of persecution on grounds of political opinion. Finally, the RPD found that the applicant’s subjective fear was “put into question”
because he had left the United States before his claim for protection there was determined and because of his delay in seeking protection in Canada.
[9] It does not appear that the applicant took any steps to challenge the RPD’s decision.
B.
The PRRA Application
[10] On July 30, 2019, the applicant was offered the opportunity to submit a PRRA application. He submitted the application in August 2019 without the assistance of counsel. Subsequently, however, he retained counsel to assist him with the application.
[11] Under a cover letter dated October 7, 2019, the applicant’s counsel provided a package of documents dealing with country conditions in Turkey for Kurds and for opponents of the Turkish government. Counsel stated in the covering letter that further submissions in support of the PRRA application would follow shortly.
[12] Those further submissions were provided in a letter from the applicant’s counsel dated October 23, 2019. Enclosed with this letter were some additional articles regarding the treatment of Kurds in Turkey. Also enclosed were three documents written in the Turkish language: a letter dated August 5, 2019, from Pinar Görgülü, the applicant’s wife; a letter dated April 3, 2019, from Omer Unal Atilla, a Turkish lawyer; and a report dated March 6, 2019, from the Bahcelievler State Hospital. Documents purporting to be English translations of these documents were also provided. However, as I have already mentioned, there was nothing to confirm that the English documents were accurate translations of the Turkish documents.
[13] The applicant submitted the Turkish and the English documents as new evidence under paragraph 113(a) of the IRPA. They all related to the arbitrary arrest and detention of the applicant’s wife in Turkey in early March 2019. According to the statements from the applicant’s wife and the lawyer, Turkish authorities had specifically questioned the applicant’s wife about the applicant’s political activities and had physically abused her while she was detained. As corroborated by the hospital report, the applicant’s wife had sought medical treatment following her release from detention. The submissions of counsel specifically addressed the admissibility of this evidence under paragraph 113(a) of the IRPA and the test articulated in Raza v Canada (Citizenship and Immigration), 2007 FCA 385.
[14] The PRRA application was based largely on the same grounds as had formed the basis of the applicant’s refugee claim – namely, that he would be at risk as an ethnic Kurd, an Alevi Muslim, and an opponent of the governing regime. The applicant reiterated the narrative of his experiences in Turkey as he had provided to the RPD. The new information concerning the arrest and detention of the applicant’s wife was provided to demonstrate that the applicant continued to be at risk in Turkey given the interest in him that had been demonstrated by state authorities in March 2019. Counsel’s written submissions in support of the PRRA application placed particular emphasis on this new information as establishing the risk to the applicant should he return to Turkey.
III.
DECISION UNDER REVIEW
[15] The PRRA officer found that the applicant had simply reiterated the same facts as he had relied on in his refugee claim. The officer gave considerable weight to the RPD’s finding that the applicant’s claim lacked credibility. The officer found that the applicant had failed to establish that he was an activist or a Kurdistan Worker’s Party (PKK) supporter; consequently, country condition evidence relating to the persecution of such individuals did not show that the applicant himself would be at risk. In the officer’s view, simply attending two political events in the past (as the applicant claimed to have done) did not establish that the applicant was an activist or that he would be perceived to be one by Turkish authorities.
[16] The officer also found that there was no evidence to suggest that Turkish authorities were actively pursuing the applicant or that he would be of interest to them if he returned to Turkey.
[17] Finally, country condition evidence established that, while there is considerable discrimination in Turkey against persons of Kurdish ethnicity as well as followers of the Alevi religion, that discrimination did not rise to the level of persecution.
[18] As noted above, the officer did not consider the English documents provided by the applicant (or the related Turkish documents). The officer explained the reason for this as follows:
In reviewing the submitted documentation, I note that the affidavits signed by Pinar Gorgulu and Omer Unal Atilla, as well as the medical note issued from Bahcelievler State Hospital are accompanied by English translations, but that these are not certified translations. Translations must include a translator’s declaration (the translator’s name, the original language of the translated document and a statement signed by the translator that the translation is accurate). [Here the officer cites an Immigration, Refugees and Citizenship document, Guide 5523 – Applying for a Pre-Removal Risk Assessment. This document is discussed below.] Without this information, I am unable to attest to the accuracy of the content of the above referenced documents. For this reasons [sic], I will not consider these documents for the purpose of this PRRA decision.
[19] Having concluded that the applicant is neither a Convention refugee nor a person in need of protection, the officer rejected the PRRA application.
IV.
STANDARD OF REVIEW
[20] The sole ground on which the applicant challenges the PRRA decision is that the officer’s decision not to consider the uncertified translations of the Turkish documents is unreasonable. He does not argue that the decision was made in breach of the requirements of procedural fairness.
[21] A reasonable decision “is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”
(Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 85). A decision that displays these qualities is entitled to deference from the reviewing court (ibid.). When applying the reasonableness standard, it is not the role of the reviewing court to reweigh or reassess the evidence considered by the decision maker or to interfere with factual findings unless there are exceptional circumstances (Vavilov at para 125). At the same time, reasonableness review is not a rubber-stamping process; it remains a robust form of review (Vavilov at para 13). The reasonableness of a decision may be jeopardized where the decision maker “has fundamentally misapprehended or failed to account for the evidence before it”
(Vavilov at para 126).
[22] In addition, “Central to the necessity of adequate justification is the perspective of the individual or party over whom authority is being exercised. Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes”
(Vavilov at para 133). Consequently, “if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood”
(ibid.).
[23] The onus is on the applicant to demonstrate that the officer’s decision is unreasonable. To set aside a decision on this basis, the reviewing court must be satisfied that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov at para 100).
V.
ANALYSIS
A.
Preliminary Issue – Is the Affidavit of Suleyman Goven Admissible?
[24] In support of his application for judicial review, the applicant has filed an affidavit sworn by Suleyman Goven on December 14, 2020. In this affidavit, Mr. Goven states that he is fluent in both Turkish and English and often provides translation services for clients. He is the person who translated the Turkish documents at issue in this application into English. He also states that he is aware of the requirement to provide a certification or declaration stating that he had translated the Turkish documents accurately and to the best of his ability. While he normally does this every time he provides translations for clients, in this case he neglected to do so. He states: “This was simply an inadvertent error and does not change the fact that I translated the documents from Turkish into English accurately and to the best of my ability”
(Affidavit of Suleyman Goven, paragraph 5.)
[25] The respondent objects to the admissibility of this affidavit. As I will explain, while I agree that some of the information in the affidavit is inadmissible, I have concluded that other parts of the affidavit are admissible.
[26] The general rule is that only material that was before the original decision maker may be considered on an application for judicial review. Consequently, generally speaking, a party to an application for judicial review cannot submit new evidence: see Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 17-20; Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 13-28; and Sharma v Canada (Attorney General), 2018 FCA 48 at paras 7-9. The rationale for this rule is grounded in the respective roles of the administrative decision maker and the reviewing court (Access Copyright at paras 17-18; Bernard at paras 17-18). The administrative decision maker decides the case on its merits. The reviewing court reviews the legality, rationality, and fairness of what the decision maker has done. If persuaded that the decision under review is flawed in one or more of these respects, the reviewing court must also determine the appropriate remedy under section 18.1 of the Federal Courts Act, RSC 1985, c F-7.
[27] There are, however, exceptions to the general rule. The exceptions “are best understood as circumstances where the rationale behind the general rule is not offended”
(Bernard at para 14). Exceptions will be made only in situations where the receipt of evidence by the reviewing Court “is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker”
(Access Copyright at para 20).
[28] There are three well-established exceptions: (1) background information; (2) evidence to establish the complete absence of evidence before the administrative decision maker concerning a particular subject matter; and (3) evidence relevant to an issue of natural justice, procedural fairness, improper purpose or fraud that could not have been placed before the administrative decision maker (Bernard at para 27). The list of exceptions is not closed (Bernard at para 28). Additional exceptions can be recognized as long as they are consistent with the rationale behind the general rule and administrative law values more generally (Bernard at para 19).
[29] I agree with the respondent that the Goven affidavit is not admissible for the purpose of determining the reasonableness of the officer’s decision not to consider the English documents. Consequently, paragraph 4 and the first part of paragraph 5 of the affidavit are not admissible. They provide evidence of the explanation for the omission of the translator’s certification or declaration (it was an inadvertent oversight) that was not before the decision maker. This does not fall within any of the recognized exceptions to the general rule; rather, this evidence relates directly to the reasonableness of the officer’s decision, something that should be determined on the basis of the record that was before the officer: see Vavilov at para 126.
[30] On the other hand, in my view, other parts of the affidavit are admissible because they are relevant to the exercise of my remedial discretion in the event that I were to conclude that the officer’s treatment of the English documents is unreasonable. Specifically, this is the information that Mr. Goven is fluent in Turkish and English, that he prepared the English translations of the Turkish documents, and that the translations were done accurately and to the best of his ability. Absent this information, I would have no way of knowing whether the English translations are accurate or not. And without knowing this, I would be unable to determine the materiality of the information in the Turkish documents or, as a result, whether an error by the officer with respect to those documents is sufficiently important or significant to warrant setting aside the decision and remitting the matter for reconsideration.
[31] In my view, considering the information I have identified for this limited purpose is consistent with the rationale for the general rule and with administrative law values generally. It helps to ensure that the judicial review function is exercised effectively within its proper limits. It does not intrude in any way on the role of the officer to decide the PRRA application on its merits. Rather, it relates to this Court’s responsibility to decide the application for judicial review on its merits. As Vavilov holds, “Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep”
(at para 100). Without the information in the Goven affidavit I have identified, I would be unable to assess the materiality of the information in the Turkish documents or, as a result, whether the officer’s unreasonable treatment of those documents (if this is established) requires that the decision as a whole be set aside. Accordingly, I have concluded that these parts of the affidavit are admissible for this purpose.
B.
Is the Decision Unreasonable?
[32] Relying on the admissible portions of the Goven affidavit for the limited purpose just discussed, I am satisfied that the English documents are accurate translations of the Turkish documents. Consequently, I am also satisfied that the contents of the Turkish documents are material to the PRRA application. The information they contain potentially has high probative value for the PRRA application. It is capable of establishing that Turkish authorities continue to take an interest in the applicant and, as a result, that the applicant is at risk if he returns to Turkey. Here, the issue is not whether the officer erred in how the documents were weighed but, rather, whether the officer erred in refusing to consider them at all. Since I am satisfied that, prima facie, the contents of the documents are material to the PRRA application, it follows that if the officer’s treatment of the documents is unreasonable, this would warrant setting aside the decision.
[33] The respondent acknowledges that the PRRA officer had a discretion to alert the applicant to the missing certifications and to give the applicant an opportunity to provide properly certified translations before making a decision. That is to say, while the officer was not required to bring the problem to the applicant’s attention, the officer precluded from doing so, either. Whether to do so was a matter within the officer’s discretion. The respondent contends that the officer exercised this discretion reasonably in deciding to dispose of the application on the basis of the materials that had been provided.
[34] In making this submission, the respondent places particular emphasis on the Immigration, Refugees and Citizenship Canada (“IRCC”) document cited by the officer – namely, Guide 5523 – Applying for a Pre-Removal Risk Assessment. Among other things, the Guide states that written submissions in support of a PRRA are permitted. It also explains that written documents of any kind, “such as documents that present facts relating to the alleged risks, may be used to support your submissions.”
This can include “the written statements of family members, friends, neighbours or any other person”
as well as legal, police or medical documents, among others. The Guide then adds the following (emphasis in original):
Note: Your written submissions and any supporting documentary evidence must be provided in either English or French. If you wish to submit any documents in another language, you must also provide an English or French translation of the document, and a translator’s declaration. A translator’s declaration must include the translator’s name, the original language of the translated document and a statement signed by the translator that the translation is accurate. Documents submitted in a language other than English or French without a translation will not be considered.
[35] I agree with the respondent that there is a compelling rationale for this instruction regarding documents in languages other than English or French. IRCC personnel who deal with PRRA applications cannot be expected to understand documents that are not written in English or French. If a document is written in another language, a translation into English or French is therefore required. It is only by reading the English or French translation that the PRRA officer can assess the probative value of the information in the original document. However, unless there is confirmation that the translation is accurate, the information in the English document is simply irrelevant because the necessary nexus to the original document is missing.
[36] That being said, the Guide is merely that – a guide. It provides straightforward instructions about what a PRRA is and how to submit an application for one. It does not stipulate legal requirements. In particular, as the respondent acknowledges, the note about documents in languages other than English or French does not preclude a PRRA officer from pointing out to an applicant that documents that were submitted do not conform with the Guide and providing an opportunity to submit documents that do. This remains a matter within the officer’s discretion. The issue, then, is whether the officer exercised their discretion in this regard reasonably.
[37] According to the respondent, when the case is viewed against the backdrop of the note and the underlying rationale for requiring English or French translations of documents in other languages, it was entirely reasonable for the officer to decline to consider the uncertified translations of the Turkish documents. I do not disagree. The determinative question is whether it was also reasonable for the officer to decide not to alert the applicant to the problem with the English translations before rendering a decision.
[38] In support of the submission that it was reasonable for the officer to proceed as they did, the respondent relies on Joseph v Canada (Citizenship and Immigration), 2018 FC 1276. In that case, a PRRA officer had refused to consider certain parts of a document that were written in Creole. No English or French translation of the Creole excerpts had been provided to the officer. Justice Roussel (then a member of the Federal Court) held that the officer was not obliged to ask the applicants to produce a translation of the excerpts in Creole. She stated:
The applicants bore the burden of providing the PRRA officer with all the evidence required to support their allegations. The PRRA officer was only obliged to consider the evidence before him. He was not required to ask the applicants for better or additional evidence (Gari at para 10; Shariaty at para 31; Ormankaya at pars 31-32). This includes the obligation to produce the excerpts that were not in either of the two official languages.
(Joseph at para 14)
[39] In support of these conclusions, Justice Roussel goes on to quote the note concerning documents in languages other than English or French that I have set out above.
[40] Joseph bears some important similarities to the present case and the respondent’s reliance on it is certainly understandable. In my view, however, Joseph is distinguishable from the present case for two reasons.
[41] First, Justice Roussel does not state expressly whether she was assessing the reasonableness or the fairness of this aspect of the PRRA decision. However, it is clear from the authorities she cites to support the proposition that PRRA officers are not required to ask applicants “for better or additional evidence”
that she is addressing a question of procedural fairness and not the reasonableness of the decision.
[42] The paragraphs in Ormankaya v Canada (Citizenship and Immigration), 2010 FC 1089, Justice Roussel cites are found under the heading “Did the officer breach procedural fairness by failing to provide [the applicant] with an opportunity to present the officer with the warrant?”
In answering this question in the negative, Justice O’Keefe states (at para 31): “The onus is on the applicant to ensure that all relevant evidence is before the PRRA officer. The PRRA officer is only obliged to consider evidence that is before her. She is not required to solicit the applicant for better or additional evidence [citations omitted].”
[43] Shariaty v Canada (Public Safety and Emergency Preparedness), 2017 FC 986, likewise dealt with a question of natural justice. There, Justice Manson cites Ormankaya for the proposition that “In a PRRA application, the Applicant bears the burden of proof. The Delegate was only obliged to consider evidence that was submitted and was not required to solicit the Applicant for better or additional evidence”
(at para 31).
[44] The third authority Justice Roussel cites, Gari v Canada (Citizenship and Immigration), 2018 FC 660, simply states the uncontroversial proposition that the burden of proof is on the party applying for a PRRA (at para 10).
[45] In the present case, on the other hand, the applicant challenges the reasonableness of the PRRA officer’s decision, not its fairness.
[46] Similarly, in Tefsay v Canada (Citizenship and Immigration), 2021 FC 593, another decision relied on by the respondent, Justice Roussel held that, since it was the applicant’s responsibility to ensure that he submitted all relevant evidence in support of his PRRA application, the officer “was not required to tell the applicant that his evidence was insufficient or ask the applicant to provide him with additional evidence”
(at para 14). In that case, it is even clearer that the issue was one of procedural fairness, the applicant having argued that “the officer should have invited him to provide additional evidence to support his case, and in failing to do so violated procedural fairness”
(Tefsay at para 4). Once again, that is not the argument advanced by the applicant here.
[47] The second reason Joseph is distinguishable is that it appears that in that case no attempt was made to provide translations of the Creole excerpts to the PRRA officer. By contrast, in the present case, what were clearly purported to be English translations of the Turkish documents were provided in support of the application. The officer certainly understood that this is what they were meant to be. The difficulty in the present case arose not from the absence of any translation whatsoever (as in Joseph) but from the absence of properly certified translations.
[48] As I will explain, in my view, the officer’s treatment of the Turkish documents and their English translations was unreasonable. However, I stress that, in reaching this conclusion, I do not agree with the applicant that the omission of a declaration or certification from the translator was a mere technicality. Nor do I agree that it was unreasonable for the officer to have declined to consider the contents of the English documents in the form in which they were submitted.
[49] As I have already explained, the need for a declaration from a translator certifying the accuracy of the translation is an essential requirement. In the present case, the potentially probative information or evidence is to be found in the original Turkish documents but that information is unknown to the officer unless the original documents are translated accurately. Standing on their own, the English documents have no evidentiary value. In the absence of an attestation from the translator that the documents in English are accurate translations of the original documents, there is no basis for the decision maker to consider the English documents. They are simply irrelevant.
[50] Rather, I have concluded that, in the particular circumstances of this case, the officer failed to exercise their discretion over whether to alert the applicant to the missing certifications reasonably.
[51] In my view, given the record that was before the officer, a reasonable decision maker would conclude that the absence of a certification as to the accuracy of the translations was likely due to an oversight on the part of the translator and/or the lawyer who submitted the documents. The record before the officer included the original Turkish documents. It also included the three English documents submitted at the same time as the Turkish documents. Any reasonable decision maker would understand that the English documents were meant to be translations of the Turkish documents. Indeed, the officer clearly understood this to be the case, stating that the Turkish documents “are accompanied by English translations.”
The officer’s concern was not whether the English documents were translations of the Turkish documents or were something else entirely. The only concern was that “these are not certified translations.”
[52] The record before the officer clearly suggests that the applicant, through his counsel, was aware of the requirement to provide English translations along with the original Turkish documents. Given this, a reasonable decision maker would at least have wondered whether the translator’s certification had been omitted by mistake. Furthermore, the information in the English documents suggests, at least on a prima facie basis, that the information in the Turkish documents could be material to the PRRA application. In these circumstances, a reasonable decision maker would not simply disregard the English documents and proceed to make a decision on what remains. Rather, a reasonable decision maker would have alerted the applicant to the fact that the English translations were not certified and would have provided the applicant with an opportunity to rectify this before making a decision on the application. It follows, therefore, that it was unreasonable for the officer to simply decline to consider the documents and then go on to make an adverse decision.
[53] In reaching this conclusion, in addition to the record that was before the officer, I place particular weight on the important issues at stake in a PRRA application. This is a critical feature of the context in which the reasonableness of the officer’s decision must be assessed.
[54] The right to a PRRA under subsection 112(1) of the IRPA is grounded in Canada’s domestic and international commitments to the principle of non-refoulement: see Figurado v Canada (Solicitor General), 2005 FC 347 at para 40; and Raza v Canada (Citizenship and Immigration), 2007 FCA 385 at para 10. Where, as in the present case, there has been a delay between the rejection of a refugee claim and removal from Canada, the question of risk may need to be assessed anew since circumstances may have changed in the interim or the individual may face a new risk. Thus, the purpose of a PRRA “is to determine whether on the basis of a change in country conditions or on the basis of new evidence that has come to light since the RPD decision, there has been a change in the nature or degree of risk”
(Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at para 116; see also Shaka v Canada (Citizenship and Immigration), 2019 FC 798 at paras 40-47).
[55] The stakes for a PRRA applicant are obviously high. They are also high for the administration of Canadian immigration and refugee law generally. This is because the erroneous rejection of a PRRA application could put Canada in breach of its domestic and international obligations under the principle of non-refoulement.
[56] The PRRA decision had a significant impact on the applicant’s rights and interests. The officer’s reasons fail to reflect what was at stake. They do not explain why proceeding to deal with the application without affording the applicant an opportunity to address the absence of properly certified translations of potentially important documents despite clear indications that this was due to an oversight “best reflects the legislature’s intention”
(Vavilov at para 133).
[57] The officer was entrusted with “an extraordinary degree of power”
over the applicant’s life (Vavilov at para 135). Their reasons fail to demonstrate that they considered the consequences of not providing the applicant with an opportunity to rectify what may very well have been an oversight concerning important information in support of his PRRA application. Those consequences are not justified in light of the facts and the law (ibid.). This being the case, the officer’s treatment of the English documents is unreasonable.
VI.
CONCLUSION
[58] For these reasons, the application for judicial review must be allowed. The decision of the Senior Immigration Officer dated January 14, 2020, is set aside and the matter is remitted for reconsideration by a different decision maker.
[59] The parties did not suggest any serious questions of general importance for certification under paragraph 74(d) of the IRPA. I agree that none arise.
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