Docket: IMM-5743-24
Citation: 2025 FC 359
Ottawa, Ontario, February 24, 2025
PRESENT: The Honourable Justice Fuhrer
BETWEEN: |
OSMAN AYDIN |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant Osman Aydin is a citizen of Türkiye who fled to Canada, via the United States of America, and claimed refugee protection. He was found ineligible, however, to make a claim. Mr. Aydin then applied for a pre-removal risk assessment [PRRA], alleging persecution based on his ethnic identity as a person of Kurdish descent, his objection to mandatory military service, and his affiliation with the People’s Democratic Party (“Halklarin Demokratik Partisi”
) [HDP].
[2] The PRRA application was refused. Mr. Aydin thus seeks judicial review alleging three errors: a breach of procedural fairness caused by the interpreter who worked for his former counsel and incompetence of his former counsel; the PRRA officer’s misapprehension of country conditions evidence; and an unreasonable assessment of his conscientious objection to mandatory military service in Türkiye.
[3] I note that Mr. Aydin’s removal from Canada has been stayed by this Court pending the disposition of this judicial review: Aydin v Canada (Citizenship and Immigration), 2024 CanLII 32095 (FC) [Stay Order].
[4] Having considered the parties’ records, including their written arguments, and heard their oral submissions, I find that Mr. Aydin has failed to establish the asserted errors. The judicial review application thus will be dismissed.
[5] In these reasons, I will address the errors in turn under the broader headings “No Breach of Procedural Fairness”
and “No Unreasonableness.”
I also will deal with a preliminary issue regarding late-submitted evidence in connection with the procedural fairness analysis, as well as the issue raised by the Respondent regarding the lack of a personal affidavit from the Applicant in support of the judicial review application.
II. Analysis
A. No Breach of Procedural Fairness
[6] I find Mr. Aydin has not established any breach of procedural fairness. As I explain in turn, I am not prepared to accept for filing the late-submitted evidence of the Applicant’s purported compliance with the Court’s Protocol regarding allegations of incompetence by the former counsel. Further, the lack of a personal affidavit in this case means that evidence about asserted wrongdoing by an interpreter or translator has not been verified and, thus, I assign the evidence no probative value or any weight.
(1) Applicant’s late-submitted evidence
[7] At 1:28 am Eastern Time, on February 20, 2025, the very day scheduled for the hearing of this matter on the merits, Mr. Aydin’s current counsel served on the Respondent, and submitted to the Court, a package of material of almost 600 pages. The cover email to the Respondent indicates that the package includes the allegations made against the Applicant’s former counsel on January 13, 2025, proof of service, and the former counsel’s response (that was submitted to the Court on January 21, 2025 by the former counsel). The Respondent’s counsel confirmed at the hearing that they had not received the allegations against the former counsel, nor the former counsel’s response, until February 20, 2025. The Respondent’s counsel added that, given the time at which the material was served, they did not have a chance to look at it until about one hour before the hearing.
[8] I note that there was no separate cover letter to the Court, nor any accompanying affidavit, apart from those contained in the already-filed records (i.e. the Applicant’s stay motion and leave records) that were sent to the former counsel with the allegations. Further, the current counsel’s cover email to the Respondent indicates that should the Respondent seek an adjournment of the hearing, the Applicant would not oppose the request. The Applicant reiterated this position at the hearing. I indicated that I was not inclined to adjourn the hearing without a formal motion. I add that it was presumptuous of Mr. Aydin’s counsel to anticipate the Respondent would seek an adjournment occasioned by the counsel’s own tardiness.
[9] More to the point, however, the Respondent strongly objected to the Court’s acceptance of the material (which the Court has not done) and indicated they felt ambushed by the Applicant’s counsel’s conduct. I am sympathetic to the Respondent’s sentiment, especially because, apart from an apology for the delay, the Applicant’s counsel provided no reasons in the cover email for the delay, and no reasons why the Court should accept this late material. The excuses the Applicant’s counsel attempted to provide at the oral hearing do not satisfy the Court that there is any justification for counsel’s conduct regarding this late material.
[10] The Respondent also submitted at the hearing that the Applicant’s late material is in the nature of reply evidence. I agree. This means, in my view, the Applicant has attempted, improperly by this late submission, to split his case. I explain why, with reference to the parties’ written submissions, the Stay Order, and the order granting the Applicant leave to commence the judicial review [Leave Order], as well as to the Protocol.
[11] The Applicant’s current counsel points, in written submissions, to incompetent advice given to Mr. Aydin by an interpreter or translator, hired by former counsel, as the basis for the breach of procedural fairness argument. The Respondent counters, in written submissions, that there is no indication Mr. Aydin has followed the Protocol (i.e. further to the Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings dated June 24, 2022 (last amended October 31, 2023) insofar as the guidelines relate to the protocol for Allegations against authorized representatives in Citizenship, Immigration and Refugee Cases before the Federal Court [Protocol]).
[12] In written reply submissions, Mr. Aydin’s current counsel asserts that there is nothing in dispute (concerning the Protocol) because the interpreter “accepted responsibility for the oversight which negatively affected the PRRA decision.”
Further, current counsel confirmed that “[t]here are no ongoing allegations with respect to the interpreter’s conduct, nor with respect to former counsel’s conduct”
(emphasis added). It is clear to the Court that as of July 2024 when the Applicant’s Reply Memorandum was served and filed, the Applicant intended to rely on the interpreter’s acceptance of responsibility (discussed in more detail below). Until now, there was no indication to the Respondent that the Applicant might be attempting to resile from this position regarding former counsel.
[13] I add that the issue of asserted bad advice from the interpreter, supplied by Mr. Aydin’s former counsel, factored into Justice Southcott’s reasons for granting the Stay Order which issued in April 2024. The Applicant’s Record was served and filed in May 2024. In support of current counsel’s argument about the interpreter’s acceptance of responsibility, is a copy of a text message, ostensibly from the interpreter, indicating that he translated Mr. Aydin’s documents in the PRRA application. He also states that, “[d]uring the procedures, Osman wanted to add the positive decision that his brother Seyit Aydin received from the asylum court, but I said that it would not be necessary to include the document since Seyit Aydin’s UCI number was already included in the application form.”
[14] I note that Justice Southcott granted leave in November 2024 and that the Leave Order scheduled the hearing of this matter for February 2025. The Leave Order also stipulated that any further affidavits by the Applicant were due in December 2024, while the Applicant’s further memorandum, if any, would be due in mid-January 2025. The Applicant did not file any further affidavits or a further memorandum, nor request an extension of time to take either step, despite having made allegations against the former counsel by January 13, 2025.
[15] In other words, until the morning of the hearing, the Respondent was unaware of any allegations against the Applicant’s former counsel. In fact, to the contrary, the Respondent had only the assertion in the Applicant’s Reply Memorandum that there were no allegations with respect to the former counsel’s conduct.
[16] In addition, the Applicant’s current counsel has complied incompletely with the Protocol. It contemplates that the allegations will be made, and the response considered, before the service and filing of the Applicant’s Record, which shall include the response if current counsel believes there is sufficient merit to the allegations. The Protocol also provides for the possibility of an extension of time if more time is needed to investigate the factual foundation for the allegations, to make the allegations to the former counsel, if warranted, and to await the response.
[17] Further, if the former counsel responds to the allegations whether in writing and/or by way of affidavit, the responsibility lies with the current counsel to file the response with the Court within seven days. As mentioned, it took the Applicant’s current counsel about one month to do so. The Applicant’s current counsel is not relieved of this obligation even if, as occurred here, the former counsel submits the response to the Court.
[18] The Protocol describes that one of its purposes is to ensure a procedurally fair process for the parties involved. In particular, the Protocol strives to balance the potential harm to an applicant by reason of incompetent counsel, if shown, with the potential harm to an authorized representative if the allegations are not established. By not complying with the timelines contained in the Protocol, especially regarding the untimely pursuit of allegations in the first place, the Applicant left little time for the former counsel to consider whether to intervene in this matter, as it was open to former counsel to do under the Protocol.
[19] More importantly, the prejudice to the Respondent is obvious, and the frustration of the Respondent’s counsel at the hearing was palpable. In addition, the conduct of the Applicant’s current counsel with this last-minute submission does not aid the work of the Court.
[20] For all the above reasons, the Court rejects the material served on the Respondent at 1:28 am Eastern Time on February 20, 2025, and submitted to the Court, pursuant to paragraph 72(2)(a) of the Federal Courts Rules, SOR/98-106. (See Annex “A”
below for relevant legislative provisions.)
(2) Interpreter’s statement of acceptance of responsibility
[21] This leaves for the Court’s consideration the interpreter’s advice to Mr. Aydin that it was unnecessary to include the positive decision on his brother’s refugee claim in Mr. Aydin’s PRRA application. I note that the interpreter’s expression of responsibility for the advice is an exhibit to the affidavit of an associate lawyer of Mr. Aydin’s current counsel (who commissioned the affidavit) contained in the Applicant’s Record. I assign no probative value or any weight to this evidence for the reasons discussed below.
[22] The Respondent argues that the lack of a personal affidavit by the Applicant in support of the judicial review application is a fatal flaw because the Applicant’s allegation that he was advised by the interpreter not to include certain key evidence is central to his claim. In reply, the Applicant points to his personal affidavit in the stay motion, which affidavit forms part of the Applicant’s Record. Further, in oral submissions, the Applicant countered that subparagraph 10(2)(a)(v) of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, does not stipulate a personal affidavit as such but rather refers to “one or more supporting affidavits that verify the facts relied on by the applicant.”
[23] In my view, based on this Court’s jurisprudence, a personal affidavit may not be required in all cases, especially if the error is obvious on the face of the record (i.e. the certified tribunal record [CTR]): Ebrahimshani v Canada (Citizenship and Immigration), 2020 FC 89 [Ebrahimshani] at paras 20-22.
[24] Where, however, as here, the asserted error cannot be found in the CTR, the Court may assign the third party “attaching affidavit”
no probative value or weight: Ebrahimshani, above at para 20. A reason is that an attaching affidavit may not “verify”
facts, or only minimal facts: Okbet v Canada (Citizenship and Immigration), 2021 FC 1303 at para 29.
[25] For example, in Ebrahimshani (above at paras 21-22), the unexplained discrepancies between the counsel affidavit (i.e. the attaching affidavit) and the CTR meant that, according to Justice Strickland, the counsel affidavit established only that the application for permanent residency was filed.
[26] I note that the associate lawyer’s affidavit here is not based on information and belief but rather on “knowledge.”
In my view, it demonstrates, at best, that a text message was sent by a named individual, who, the lawyer deposes, was the Applicant’s former interpreter. I have serious concerns, however, about the provenance and reliability of this evidence.
[27] The associate lawyer further attests that the message was sent to the Applicant’s current counsel “dated May 21, 2024.”
I observe that there is no date on the text message. The associate lawyer does not describe how the lawyer knows what date the message was sent. It also is not obvious on the face of the message to whom it was sent.
[28] Improperly, the Applicant’s counsel attempts to give unsworn evidence about circumstances culminating in the text message in the guise of argument in the Applicant’s Memorandum of Argument where it states, “Counsel … put the allegation of the Applicant’s dismissed proposal to add his brother’s positive refugee claim decision in the [PRRA] Application to the Interpreter via a phone call on May 21, 2024.”
Assuming the reference to “Counsel”
means the Applicant’s current counsel, then I find there also is no evidence that the Court gave current counsel leave both to act for the Applicant and to give evidence, in compliance with rule 82 of the Federal Courts Rules.
[29] Further, there simply is no evidence about the content of the asserted phone discussion between the interpreter and the current counsel. Even if I accept that an allegation against the interpreter need not comply with the Protocol, the Applicant’s current counsel argues, as I understand it, that the interpreter and former counsel are both professionals on whom the Applicant relied, and that the interpreter was under the control of the former counsel who should not have let the Applicant speak alone with the interpreter. In my view, based on this argument, the current counsel should have attempted, at least, to apply the Protocol in spirit, in fairness to the interpreter.
[30] As it presently stands, the Applicant seeks to rely on the interpreter’s out-of-court hearsay statement for the truth of its content, without showing the reliability of the proffered evidence, even if I accept its necessity. I am unable, however, to accept the reliability of the statement for the above reasons.
[31] I add that even if evidence of Seyit Aydin’s (i.e. Mr. Aydin’s brother’s) accepted refugee claim had been included in the Applicant’s PRRA application, “a large number of cases decided by this Court have established that the IRB is not bound by the result in another claim, even if the claim involves a relative, because refugee status is determined on a case by case basis, and because it is possible that the other decision was incorrect”
: Kiss v Canada (Citizenship and Immigration), 2024 FC 363 at para 33, citing Bakary v Canada (Citizenship and Immigration), 2006 FC 1111 at para 10.
[32] For all these reasons, I assign no probative value to the evidence of the interpreter’s statement.
[33] Further, there is no sworn or reliable evidence that the interpreter communicated with the former counsel about the advice the interpreter supposedly gave to Mr. Aydin, or why Mr. Aydin relied on the interpreter’s advice and did not seek the advice of his former lawyer. In these circumstances, the former lawyer, in my view, cannot be faulted for not advising Mr. Aydin about information for which there is no evidence it was brought to the lawyer’s attention before current counsel made the allegation in January 2025. Absent a personal affidavit from Mr. Aydin in the judicial review, there simply is no evidence to support his current counsel’s oral submission that Mr. Aydin is a layperson who did not know any better.
[34] In addition, I observe that Mr. Aydin’s affidavit in support of his stay motion attests that the interpreter told Mr. Aydin to omit, in his PRRA affidavit, the incident about a beating at the hands of police during the Newroz festival (Persian new year) in Türkiye in 2016 resulting in his left forearm being put in a cast because there was no evidence about it. The interpreter’s statement of responsibility (i.e. the text message), however, is silent on this issue, nor is there any evidence before the Court about the content of the allegation Mr. Aydin’s current counsel argues he put to the interpreter in a phone conversation. There also is no evidence that the omission of this information on the advice of the interpreter was put to the former counsel in an allegation.
[35] I conclude that there simply is no acceptable evidentiary foundation here to support a finding of breach of procedural fairness stemming from the alleged conduct of either the interpreter or the former counsel, with respect to the test articulated in this Court’s jurisprudence, including Rendon Segovia v Canada (Citizenship and Immigration), 2020 FC 99 at para 22, and Kandiah v Canada (Citizenship and Immigration), 2021 FC 1388 at para 48.
B. No Unreasonableness
[36] I find that Mr. Aydin has not met his onus of showing that the PRRA decision is unreasonable.
[37] A decision may be unreasonable, that is lacking justification, transparency and intelligibility, if the decision maker misapprehended the evidence before it. The party challenging the decision has the onus of demonstrating that the decision is unreasonable. Flaws or shortcomings must be more than superficial, peripheral to the merits of the decision, or a “minor misstep”
to warrant intervention by the Court: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 99-100, 125-126; Canada (Citizenship and Immigration) v Mason, 2021 FCA 156 at para 36, rev’d on other grounds 2023 SCC 21.
(1) Country condition evidence
[38] Mr. Aydin argues that the PRRA officer did not assess his evidence of persecution and takes issue with the officer’s findings of insufficient evidence. The Respondent counters that there is no evidence to suggest that the officer did not take into consideration all the circumstances the Applicant outlined in his materials submitted in support of the PRRA application. I am not persuaded that the officer misapprehended Mr. Aydin’s evidence or made a veiled credibility finding.
[39] The PRRA officer is presumed to have considered all the evidence. Further, not every determination by a PRRA officer that an applicant’s evidence is insufficient means the officer has made an adverse credibility finding: AB v Canada (Citizenship and Immigration), 2020 FC 498 at para 115. The fact that it may have been open to the officer here to draw other inferences from the Applicant’s materials does not mean that the officer’s inferences were unreasonable: Solis Mendoza v Canada (Citizenship and Immigration), 2021 FC 203 at para 43.
[40] In my view, it was not unreasonable for the PRRA officer to find Mr. Aydin’s evidence regarding discrimination insufficient to meet his evidentiary burden. The only incident in the affidavit submitted in support of his PRRA application where he faced violence from the police was following the Newroz festival he attended in 2016. Although the alleged omitted evidence of Mr. Aydin receiving medical treatment and a cast on his left forearm might have contradicted the officer’s finding of a lack of evidence that he required or sought medical treatment, I agree with the Respondent that the officer cannot be faulted for not considering evidence that was not before the officer.
[41] More to the point, however, Mr. Aydin attests that he attended “all Newroz festivals after 2016,”
but his PRRA affidavit does not recount any further interactions with police. As well, the letters from Mr. Aydin’s parents are silent on the 2016 Newroz festival, regardless of the extent of injuries he may have suffered at the hands of the police, and the letter from his friend who attended the 2016 festival with him only makes reference to “[w]hat we experienced in Newroz in 2016”
as an example of racism without any particulars.
[42] In the end, I find that Mr. Aydin’s submissions essentially request that the Court reweigh the evidence considered by the PRRA officer, which is not the role of the Court on judicial review: Vavilov, above at para 125.
(2) Assessment of Applicant’s conscientious objection to mandatory military service
[43] I also determine that Mr. Aydin’s arguments about the PRRA officer’s assessment of Mr. Aydin’s asserted objection to mandatory military service and his supporting evidence, not only are tantamount to a request to reweigh the evidence, but also express disagreement with the officer’s reasons, with no foundation. In my view, the officer’s analysis is both comprehensive and comprehensible (i.e. transparent and intelligible): Ruszo v Canada (Citizenship and Immigration), 2018 FC 943 [Ruszo] at para 36.
[44] Mr. Aydin takes issue with the officer’s finding that there is “little evidence to indicate that the applicant has strong religious beliefs or to indicate that he belongs to any organization composed of conscientious objectors,”
arguing the finding is irrelevant and not internally coherent. The Respondent counters that “[i]t was open to the officer to find that the Applicant had provided insufficient evidence that he would indeed be forced into military service, or that in any event, this did not rise to the level of persecution or risk of harm.”
[45] The issue of conscientious objection to military service is bound up in the principle that a “fundamental requirement in refugee law that claimants seek protection from their home state before going abroad to obtain protection through the refugee system”
: Hinzman v Canada (Citizenship and Immigration), 2007 FCA 171 [Hinzman] at para 62, leave to appeal refused, 2007 CanLII 50077 and 2007 CanLII 50078 (SCC); Ruszo, above at para 35, citing Hinzman.
[46] On the issue of conscientious objection, in the context of the US war in Iraq, the Federal Court of Appeal opines (in Hinzman at para 54) that “[i]f effective state protection for religious or political beliefs is available to the claimant, it can hardly be said that there is a serious possibility of persecution by the state sufficient to make his fear of persecution objectively well-founded.”
In my view, this is precisely the issue the PRRA officer here assessed, with reference to the UNHCR Handbook (i.e. the handbook on procedures and criteria for determining refugee status, issued by the Office of the United Nations High Commissioner for Refugees) and to the lower court decision in Hinzman (2006 FC 420), the appeal of which was dismissed.
[47] In concluding that the Board did not err in finding that the applicant there faces prosecution and not persecution in the United States, the lower court in Hinzman cites (at para 224) to a negative response in answer to the certified question of whether “[i]n a country where military service is compulsory, and where there is no alternative thereto, do repeated prosecutions and incarcerations of a conscientious objector for the offence of refusing to do his military service, constitute persecution on a Convention refugee ground”
(Ates v Canada (Minister of Citizenship and Immigration), 2005 FCA 322, leave to appeal refused, 2006 CanLII 10092 (SCC)).
[48] Contrary to Mr. Aydin’s submission that his religious beliefs and membership in an organization of conscientious objectors were irrelevant considerations, I find that they are reasonable lines of inquiry for the PRRA officer to assess whether Mr. Aydin uniformly opposes all military service, further to the principles described in the UNHCR Handbook and the UK Home Office report on Military Service in Turkey. Indeed, the definition of a Convention refugee is someone who has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion (emphasis added). The latter was not in issue before the officer (i.e. “I accept the applicant’s reluctance to perform military service stems from his genuine political opinions”
).
[49] The PRRA officer’s analysis reasonably focuses instead on whether “the military actions objected to are judged by the international community to be contrary to basic rules of human conduct,”
citing Zolfagharkhani v Canada (Minister of Employment and Immigration), 1993 CanLII 2971 (FCA). With regard to the onus on the Applicant, the officer concludes, also reasonably in my view, that Mr. Aydin would not be required to engage in military action contrary to the basic rules of human conduct, taking into account the evidence of Mr. Aydin’s military deferral until December 2026 because of academic pursuits, as well as the possibility of fees (instead of performing full military service) and fines (for evading conscription).
[50] In his submissions, Mr. Aydin addresses the claim that the discrimination he would face as a Kurd in the Turkish army itself would be contrary to the basic rules of human conduct. In my view, however, this is not what the PRRA officer was required to assess in connection with the asserted conscientious objection: Basbaydar v Canada (Citizenship and Immigration), 2019 FC 387 at paras 66-67.
[51] In sum, considering the PRRA officer’s reasons on the issue of conscientious objection holistically, as opposed to one sentence in isolation, I am satisfied that they exhibit the requisite justification, transparency and intelligibility such that the Court’s intervention here is not warranted.
III. Conclusion
[52] For all the above reasons, I find that the Applicant has not established a breach of procedural fairness regarding the alleged incompetence of his former counsel, nor the conduct of the interpreter or translator hired by the former counsel. The Applicant also has not shown that the PRRA decision is unreasonable. The judicial review application thus will be dismissed.
[53] Neither party proposed a serious question of general importance for certification. I find that none arises in the circumstances.
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