Gonulcan v. Canada (Ministre de la Citoyenneté et de l'Immigration), 2005 FC 32

Date: 20050117

Docket: IMM-2113-04

Citation: 2005 FC 32

BETWEEN:

ALI GONULCAN

Applicant

- and -

MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER

TEITELBAUM J.

[1]        This is an application for judicial review of a decision by a pre-removal risk assessment (PRRA) officer (the officer) dated January 28, 2004, dismissing the applicant's application and stating that the removal order against him must be carried out.

[2]        The applicant is asking the Court to quash that decision, declare the removal order of no force or effect and direct that the evidence presented be considered de novo.

[3]        The applicant is a citizen of Turkey, married and the father of four children. All his family remained in Turkey.

[4]        The applicant is of the Alevi religion and is part of the social group of the Kurds. He alleged he was a person in need of protection because, as a result of his membership in that social group and his religious beliefs, he would be subject to a danger of torture and a risk to his life or a risk of cruel and unusual treatment or punishment if he were to return to Turkey. He alleged that since his youth he had suffered persecution from the police, who threatened him and hit him because of his Kurdish origin. He further alleged he had been arrested at the café where he worked, when he joined with about 15 other persons to found a sub-group of the cultural and religious association Haci Bektas. He claims to have been beaten when he was in detention to such an extent that the police had to take him to hospital. Finally, he alleged he had been arrested and beaten once again on June 22, 2001.

[5]        On February 20, 2002 he left Turkey, travelled through the U.S. and arrived in Canada on February 22, 2002, at the Lacolle border crossing in Quebec, where he claimed refugee status.

[6]        The Immigration and Refugee Board (the Board) dismissed his refugee status application on December 17, 2002. On November 18, 2003, the Court allowed his application for leave to file an application for judicial review and scheduled the hearing down for February 10, 2004 (docket IMM-209-03). On November 27, 2003, he was offered the PRRA, but his application was dismissed on January 28, 2004. Finally, the judicial review of the Board's decision was dismissed by this Court on March 18, 2004 (Gonulcan v. Minister of Citizenship and Immigration, 2004 FC 392).

[7]        As previously mentioned, the applicant's PRRA application was dismissed on January 28, 2004, on the ground that the applicant was not in danger of being [TRANSLATION] "tortured or persecuted, suffering cruel or unusual treatment or punishment or being subject to a risk to his life if he was removed to [his] country of nationality or habitual residence". The applicant was accordingly required to leave Canada and confirm his departure, because the removal order made against him had to be enforced.

[8]        Proceeding to consider the application in accordance with the factors mentioned in sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), the PRRA officer noted that in deciding the refugee status application, the Board had found the applicant's claim to be not credible on account of omissions and contradictions throughout his testimony.

[9]        The documents filed by the applicant on the situation prevailing in Turkey with regard to human rights violations are not, the officer commented, related solely to the applicant's personal situation. The officer noted that danger will not be recognized only on the basis of the general situation in the country of origin, but rather on the applicant's personal situation, as to whether he has a justified fear of persecution, torture, a risk to his life or unusual treatment or punishment. Accordingly, the officer ruled that the applicant had to submit new evidence to support the alleged risks and show that those risks were personal, for the following reason:

[TRANSLATION]

. . . The function of the PRRA risk assessment is not to revise the decision made by the [Board], but to rule on the risks involved in returning based on new evidence and the objective situation in the applicants' country of nationality, Turkey.

Thus, the application was analyzed in terms of the present conditions in Turkey, in particular the situation of Kurds of the Alevi religion.

[10]      The officer recognized that, objectively speaking, there are risks of discriminatory treatment, harassment or torture for people, specifically public figures or separatists, who publicly affirm their Kurdish identity. However, the officer concluded that in the case at bar the applicant's profile did not correspond to that of a public figure or a person promoting separatism.

[11]      The officer noted that identifying a Kurd or a person of the Alevi religion is especially difficult due to the fact that such people make up nearly one-third of the Turkish population, have no distinguishing characteristics, do not wear traditional clothing and often have Turkish names. The officer also relied on the objective documentation consulted in determining that Kurds and followers of the Alevi religion are not persecuted: there is no systematic oppression of that group. The officer further noted an improvement in the restrictions formerly imposed on minorities in Turkey.

[12]      The officer further concluded that the applicant's fear of reprisals for leaving his country and claiming refugee status was unfounded, because he was not being sought by the Turkish authorities. Accordingly, the officer dismissed the application as follows:

[TRANSLATION]

In view of the applicant's profile, the fact that the evidence was insufficient to establish personal risk and the objective evidence on existing conditions in Turkey, I come to the conclusion that the applicant has not persuaded me that he would be subject to persecution, torture, threats to his life or cruel and unusual treatment or punishment if he had to return to his country.

[13]      The following points at issue must be resolved:

            (1)        Did the officer err in law in the exercise of her jurisdiction by proceeding to consider the PRRA application?

            (2)        Did the officer err in fact in dismissing the PRRA application?

            (1)        Did the officer err in law in the exercise of her jurisdiction by proceeding to consider the PRRA application?

[14]      As this is a question of law, I consider that the applicable standard of review is that of correctness (see Singh v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 323).

[15]      The applicant maintained that there was a lack of jurisdiction. He argued that when an application for leave against a Board decision denying refugee status is allowed, it implies a stay of the removal order until an unfavourable decision of the Court is made, in accordance with paragraph 231(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations):

[16]      Thus, according to the applicant, the fact that the Court granted the application for leave from the Board's decision carries with it a stay of the removal order against him, until a decision is rendered on the judicial review, which took place on March 18, 2004.

[17]      The applicant argued then that section 112 of the Act, regarding the PRRA, provides that for the review to be made the person in question must be subject to an order that is in force. However, he submitted that in the case at bar the PRRA was done too early because the order was not yet in force, as the Court's judgment on judicial review of the Board's decision had not yet been rendered. Specifically, the PRRA application was dismissed on January 28, 2004 and this Court's judgment on judicial review of the Board's decision was rendered on March 18, 2004. Subsection 112(1) of the Act reads as follows:

[18]      The applicant argued that this method of proceeding does not comply with the requirements of the Act. In short, the applicant considered that the PRRA officer had assumed a jurisdiction she did not have at the time the case was considered, as since the effect of the application for leave and judicial review was to impose a stay, it could not be said that the removal order was in force.

[19]      For his part, the respondent argued that, even accepting the applicant's argument, the officer's error was not determinative because the application for judicial review was dismissed by Pinard J. on March 18, 2004. He further maintained that the applicant was subject to a removal order which was in force within the meaning of subsection 112(1) of the Act. Finally, the respondent argued that subsection 49(2) of the Act provides when a removal order comes into force, and in the case at bar it had already come into force, despite the fact that the applicant had filed an application for judicial review.

[20]      On this issue, I consider that the officer's decision is correct. I feel that the officer had jurisdiction to undertake the PRRA at the time that she did so. I cannot accept the applicant's argument.

[21]      It seems clear to the Court that section 112 of the Act and section 231 of the Regulations do not deal with the same concept. On the one hand, if I consider the ordinary and generally accepted meaning of the phrase "come into force" used in section 112 of the Act, it means [TRANSLATION] "become enforceable". On the other, if I look at section 231 of the Regulations, which refers to a stay of the removal order, I note that the verb "stay" means [TRANSLATION] "postpone for a time, defer, suspend, await the expiry of a deadline for proceeding".

[22]      It is clearly apparent from this return to the fundamental rules of interpretation that it is quite possible to say that an order may be stayed but still have come into force. Accordingly, I feel that the removal order came into force at the time the Board's decision was made, but was simply suspended by the filing of the application for judicial review. Consequently, it follows that the officer could validly consider she had jurisdiction to conduct the PRRA, since the removal order had in fact come into force as required by section 112 of the Act.

[23]      As the requirements for proceeding with the PRRA were complied with, I feel that the officer's decision is not vitiated by any error of law regarding her jurisdiction.

            (2)        Did the officer err in fact in dismissing the PRRA application?

[24]      The precedents are not clear as to the standard of review applicable to a decision based on a PRRA. Some feel that the standard of patent unreasonableness decision would be appropriate, while others maintain that reasonableness simpliciter is the standard that should be adopted (see inter alia Babai v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1614 (QL), Khatoon v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1408 (QL), Sidhu v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 30 (QL) and Dissanayakage v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 712 (QL)). However, the case law indicates that no one has made a final ruling on this point: it always states it is not necessary or appropriate to do so. Nevertheless, based on the record, I do not think that makes much difference in view of the fact that there was ample foundation for the officer's decision and it was supported by the record. Even a less demanding standard like that of reasonableness simpliciter does not imply intervention by the Court, since the officer's decision was reasonable and based on a defensible explanation (see Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, and Ryan v. Victoria (City), [1999] 1 S.C.R. 201).

[25]      The applicant argued that the situation should be analyzed in accordance with the findings appearing in the immigration record. He submitted that objectively his situation was uncertain in view of the fact that his passport was no longer valid, and this putting him at risk if he were to return to Turkey. The applicant argued that the officer's conclusions were based on speculation.

[26]      For his part, the respondent contended that the officer's decision was based on the evidence submitted by the applicant and other more recent evidence on the situation prevailing in Turkey. He suggested that the officer's conclusion that the applicant's fear was unfounded is reasonable. The respondent also argued that it was insufficient for an applicant to put forward conditions prevailing in his or her country: the applicant must establish links to his or her particular personal situation (Rahaman v. Canada (Minister of Citizenship and Immigration), [2002] 3 F.C. 537 (C.A.)).

[27 ]      As the officer noted, the purpose of the PRRA is not to serve as a procedure to review the dismissal of a refugee claim by the Board. Only evidence that arises after the application is dismissed or which was not reasonably available may be submitted (paragraph 113(a) of the Act).

[28]      I accept the respondent's argument that deference must be given to the officer's decision and in the case at bar it was reasonable for the officer to make the determinations underlying the decision at issue. On considering the decision made by the officer, I cannot find that it was unreasonable. It was based on the evidence in the record and the interpretation of that evidence was reasonable. In my view, the decision is not vitiated by any error requiring intervention by this Court through judicial review.

[29]      For all these reasons, I am satisfied that the application for judicial review should be dismissed.

[30]      I allow the applicant seven days from the date of these reasons to submit one or more questions for certification, with written submissions. The respondent will have seven days from the date of receipt of the applicant's submissions to reply.

OTTAWA, ONTARIO

January 17, 2005

Certified true translation

K. Harvey

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   IMM-2113-04

STYLE OF CAUSE:                                                   ALI GONULCAN v. MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                             Montréal, Quebec

DATE OF HEARING:                                               November 1, 2004

REASONS FOR ORDER BY:                                  Teitelbaum J.

DATED:                                                                      January 17, 2005

APPEARANCES:

Michel Le Brun                                                              FOR THE APPLICANT

Michel Pépin                                                                 FOR THE RESPONDENT

SOLICITORS OF RECORD:

Michel Le Brun                                                              FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

Montréal, Quebec