Date: 20100414
Dockets: IMM-4648-09
IMM-4649-09
Citation: 2010 FC 400
Ottawa, Ontario, April 14, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
KIRAZ
COSGUN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
These
reasons for judgment and judgment relate to two applications for judicial review
heard consecutively on March 23, 2010.
[2]
The
first application concerns a decision, dated July 7, 2009, of Pre-Removal Risk
Assessment (PRRA) Officer L. Zucarelli, wherein it was concluded that the Applicant
is not a Convention refugee or a person in need of protection within the
meaning of sections 96 and 97 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the “IRPA”), respectively.
[3]
The
second application concerns a decision, dated July 6, 2009, by the same
Officer, wherein the Officer declined to grant the Applicant’s request for permanent residence from within Canada on
humanitarian and compassionate (“H&C”) grounds.
[4]
With
respect to the PRRA decision, the Applicant alleges that the Officer erred in
law by (i) failing to hold a hearing to provide her with an opportunity to
address a number of credibility issues that were raised in the Officer’s
assessment; (ii) applying an incorrect test in assessing the availability of
state protection for women who are victims of domestic violence in Turkey; and
(iii) ignoring important evidence that was supportive of her claim regarding
the ineffectiveness of such state protection.
[5]
With
respect to H&C decision, the Applicant alleges that the Officer applied the
wrong test in assessing her H&C application, notwithstanding that the
correct test was articulated throughout the decision. More particularly, the Applicant
alleges that the Officer either (i) merely recited the majority of the analysis
from the PRRA decision and substituted the word “risk” with the word “hardship”
throughout the H&C decision; or (ii) adopted, in the course of the H&C
assessment, essentially the same analysis as was used during the review of the
PRRA application. In addition, the Applicant repeats her allegation that the
Officer further erred by failing to hold a hearing. She also alleges that the Officer
erred by ignoring evidence that the Applicant would face hardships as a woman
if forced to return to Turkey, particularly given her physical ailments.
[6]
For
the reasons that follow, I have concluded that the Officer did not commit any
of the alleged errors and that therefore the two applications should be
dismissed.
I. Background
[7]
The
Applicant, Kiraz Cosgun, is a citizen of Turkey. She and her former husband, Kazim Ates, first
arrived in Canada as temporary visitors
in June 2003. Shortly after their arrival, they claimed refugee status based on
Mr. Ates’ imputed political opinion and their Kurdish ethnicity. They also
submitted that, as practicing Muslims, they would be unable to freely practice
their religion and that the Applicant could not get a job or receive medical
care because she wore a hijab.
[8]
In December 2004, the
Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected the claims
of the Applicant and Mr. Ates. Judicial review of that decision was sought and
denied in early 2005.
[9]
In
April 2005, the Applicant then submitted an application for permanent residence
from within Canada on H&C grounds
that was based on essentially the same allegations of risk put forth in her
refugee claim.
[10]
In
July 2006, the Applicant and Mr. Ates submitted a joint application for a
pre-removal risk assessment that was based on essentially the same information
that had been submitted in support of their refugee claim.
[11]
On
February 28, 2008, the Multicultural Health Manager of the North Hamilton
Community Health Centre sent a short letter to the PRRA Office stating that Mr.
Ates had returned to Turkey in August 2006 and that the Applicant had
not accompanied him because he was abusive and she knew that the laws in Canada would
protect her. The letter added that the Applicant had informed staff at the
Health Centre that she had been subsequently threatened by Mr. Ates, who was
described as her “ex-husband,” because she had not followed him to Turkey.
[12]
Attached
to that letter was a translation of an e-mail exchange between the Applicant
and Mr. Ates in which Mr. Ates allegedly threatened the Applicant.
[13]
On
February 12, 2009, the Applicant updated her PRRA application with another
short, one-page letter which, among other things, stated that (i) her
ex-husband, Mr. Ates, had returned to Turkey in August 2007 and believed that
she would follow him; (ii) she had decided not to follow him to Turkey because
of the abuse that she had suffered from him while living together in Turkey;
and (iii) Mr. Ates had subsequently made serious threats to her life, which she
believed would be carried out if she returned to Turkey.
[14]
On
March 30, 2009, the Applicant was provided with an opportunity to update her
H&C application. She responded by providing further submissions in April
2009. In those supplementary submissions, the Applicant stated that her life
would be at risk if she were to return to Turkey, because she
had received death threats from Mr. Ates and she believed that he would carry
out those threats. In this regard, she relied on the evidence that she had
submitted in support of her PRRA application.
II. The PRRA Decision
[15]
The
Officer rejected the Applicant’s PRRA application on the basis that (i) there
is less than a mere possibility that she would face persecution if she returned
to Turkey; (ii) there are no substantial grounds to believe that she would face
a risk of torture; and (iii) there are no reasonable grounds to believe that
she would face a risk to life, or cruel and unusual treatment or punishment if
she were to return to Turkey.
[16]
In
assessing the risks likely to be faced by the Applicant if she were required to
return to Turkey, the Officer
began by noting that the risks identified in her initial PRRA application were
essentially the same as those that had been heard and assessed by the RPD. The
Officer then observed that the decision of the RPD is final with respect to the
issue of state protection, “subject only to the possibility that new evidence
shows that the applicant would be exposed to a new, different or additional
risk that could not have been contemplated at the time of the RPD decision.”
[17]
The
Officer then explicitly referred to the “new” information that had been
provided in the aforementioned letters dated February 28, 2008 and February 12,
2009, and in the translated e-mail exchange that had been included with the
former letter.
[18]
The
Officer does not appear to have reached any conclusions with respect to the
Applicant’s credibility. The Officer appears to have considered it unnecessary
to reach such conclusions, on the ground that “[t]he determinative issue in
this assessment is the availability of state protection.”
[19]
However,
the Officer did take “note” of the following factual matters:
i.
While
the applicant stated that Mr. Ates returned to Turkey in August 2006, the
electronic files indicated that he failed to confirm his departure with Canada
Border Services Agency prior to leaving (the Officer did not mention the
discrepancy between this date and the August 2007 date mentioned in the
Applicant’s aforementioned letter dated February 12, 2009);
ii.
Mr.
Ates’ e-mail address is a hotmail account and could be accessed from anywhere,
and the identity of Mr. Ates had not been verified by corroborative
documentation;
iii.
At
the end of the e-mail, Mr. Ates stated: “Now you can say if I come [Mr. Ates]
will harm me and I am not safe, you can say that to the ones here. If you come
back make sure you go to your father’s home, that time there would be nothing
to do and that’s your only chance”;
iv.
There
was insufficient evidence to determine when the Applicant and Mr. Ates
divorced;
v.
The
Applicant did not provide information as to when her husband began being
abusive towards her, whether this abuse occurred in Turkey or in Canada and
what actions, if any, she took in relation to that abuse; and
vi.
The
Applicant initiated the aforementioned e-mail exchange.
[20]
With
respect to the latter fact, the Officer stated: “I find it objectively
unreasonable that, fearing for her safety, the applicant would seek out
communication with her husband.”
[21]
After
discussing the “new” evidence and taking note of the foregoing facts, the
Officer concluded: “While it is clear from the internet (sic) exchange that
there was resentment between the applicant and [Mr. Ates], there is
insufficient evidence before me to support that the applicant faces persecution
or harm in Turkey as a
result.”
[22]
The
Officer then turned to the determinative issue of the availability of state
protection.
[23]
In
the absence of any further evidence from the Applicant regarding her fear of
abuse from Mr. Ates and her fear of persecution as a Muslim woman in Turkey,
the Officer reviewed the 2008 US Library of Congress Country Profile on Turkey,
a report prepared by the UK Home Office and country information obtained by the
Immigration and Refugee Board of Canada in response to information requests.
[24]
After
summarizing and quoting a significant amount of information set forth in that
documentation, including information that reported that problems in providing
effective protection continue to be exist, the Officer noted that (i) the
evidence shows that gender discrimination with respect to the protection of
victims of violence is not an issue, and both women and men have equal access
to the justice system, including legal representation; (ii) domestic human
rights organizations have reported that recent measures designed to improve the
enforcement of laws targeting violence against women, including spousal abuse,
have been partially effective; and (iii) there have been meaningful improvements
in the human rights situation in recent years.
[25]
The
Officer also quoted objective evidence that the overwhelming majority of
Turkish nationals who had applied for asylum overseas are of no interest to the
Turkish government and would not be imprisoned upon return. (This aspect of the
Applicant’s prior written submissions was not addressed in the hearing before
this Court.)
[26]
Based
on the available evidence the Officer concluded: “State protection, while not
perfect, is adequate.” In this regard, the Officer added: “The documentary
evidence shows that the applicant has recourse available to her, should the
authorities act contrary to their mandate.” The Officer also noted that the
“[o]bjective evidence shows that there are various levels of protection
available in Turkey, and the
applicant would have access to them. It is reasonable that if the applicant was
to seek state protection, she would be afforded such protection.”
III. Issues
[27]
The
Applicant alleges that the Officer erred by:
i.
failing
to hold a hearing to provide her with an opportunity to address a number of
credibility issues that she alleges were raised in the Officer’s assessment;
ii.
applying
the wrong test in assessing the availability of state protection for women who
are victims of domestic violence in Turkey; and
iii.
ignoring
important evidence that was supportive of her claim regarding the
ineffectiveness of such state protection.
IV. Standard of Review
[28]
The standard of
review applicable to the first and third issues raised by the Applicant is reasonableness.
(Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 53; (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 46; Beca v. Canada (Minister of Citizenship and Immigration), 2006 FC 566, at para. 9; Karimi v. Canada (Citizenship and Immigration), 2007 FC 1010, at para. 17.)
[29]
In Khosa, at para. 59, reasonableness was articulated by Justice Ian Binnie as
follows:
Where the reasonableness standard applies, it
requires deference. Reviewing courts cannot substitute their own appreciation
of the appropriate solution, but must rather determine if the outcome falls
within "a range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir, at para. 47). There might
be more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
[30]
The standard of review applicable to the second
issue raised by the Applicant (the appropriate test for state protection) is
correctness. (Khosa, above, at paras. 43
and 44.)
V. Analysis
A.
Did the
Officer err in failing to hold a hearing?
[31]
Subsection 113(b) provides that “a hearing may be held if
the Minister, on the basis of prescribed factors, is of the opinion that a
hearing is required”. The prescribed factors for determining whether a
hearing is to be held are set out in section 167 of the Immigration and
Refugee Protection Regulations, SOR/2002-227:
|
167. For the purpose of determining whether a hearing is
required under paragraph 113(b) of the Act, the factors are the following:
(a) whether there is evidence that raises a serious issue
of the applicant's credibility and is related to the factors set out in
sections 96 and 97 of the Act;
(b) whether the evidence is central to the decision with
respect to the application for protection; and
(c) whether the evidence, if accepted, would justify
allowing the application for protection.
|
167. Pour l’application de l’alinéa 113b)
de la Loi, les facteurs ci-après servent à décider si la tenue d’une audience
est requise :
a) l’existence d’éléments de preuve
relatifs aux éléments mentionnés aux articles 96 et 97 de la Loi qui
soulèvent une question importante en ce qui concerne la crédibilité du
demandeur;
b) l’importance de ces éléments de preuve
pour la prise de la décision relative à la demande de protection;
c) la question de savoir si ces éléments
de preuve, à supposer qu’ils soient admis, justifieraient que soit accordée
la protection.
|
[32]
Given
the presence of the conjuctive word “and” between paragraphs (b) and (c) above,
it is clear that the factors set forth in paragraphs 167(a), (b) and (c) are
cumulative. (Karimi, above, at para. 18; Bhallu v. Canada (Solicitor General), 2004 FC 1324, at para.
4.) The parties agree that if all three factors in section 167 were satisfied,
a PRRA Officer would be obliged to hold a hearing and that if one of the
factors set forth (b) or (c) is not satisfied then a hearing would not be
required.
[33]
Unfortunately
for the Applicant, the factor set forth in paragraph 167(c), at the very least,
is not met, as the determinative factor in this case is the existence of
adequate state protection and, as discussed below, I am satisfied that the
Officer’s conclusion on this point was not unreasonable. Accordingly, the
Officer was not required to hold a hearing. (Selliah v. Canada (Minister of Citizenship
and Immigration),
2004 FC 872, at para. 27; aff’d 2005 FCA 160.)
[34]
Moreover,
for the record, I do not believe that the factor set forth in paragraph 167(a)
was met, as the Officer did not make any finding as to credibility. The Officer
simply found that the Applicant had not discharged her burden to produce
sufficient evidence to establish on a balance of probabilities that she would
face a risk of persecution or harm if forced to return to Turkey. (Bayavuge v. Canada (Citizenship and
Immigration),
2007 FC 65, at para. 43.)
[35]
In
contrast to the type of situation that arose in Karimi, above at para. 19,
and Haji v. Canada (Citizenship and
Immigration),
2009 FC 889, at paras. 11 to 16, where the Applicant’s credibility was at the
heart of the decision, the Officer in the case at hand did not state anywhere
in the decision that there were concerns regarding the Applicant’s
credibility. Moreover, contrary to the Applicant’s claim that the Officer in
essence raised credibility concerns by taking “note of” the factual matters
discussed at paragraph 19 above, I am satisfied that the Officer did not in
essence raise such concerns.
[36]
With
respect to Mr. Ates’ return to Turkey and his divorce from the Applicant, I am satisfied that the
Officer proceeded with the assessment on the assumption that these facts were
true. The only issue “noted” with respect to the divorce concerned when
the divorce happened. It was entirely reasonable for the Officer to note that
there was insufficient evidence on this point, as this was relevant to the
weight to be attributed to the Applicant’s claim that she would likely suffer
abuse at Mr. Ates’ hands if forced to return to Turkey.
[37]
The
same is true with respect to the other facts that were noted by the Officer,
namely, (i) the fact that the Applicant had initiated the aforementioned e-mail
exchange, (which contrary to the Applicant’s claim did not contain any material
threats); (ii) the passage from the end of that e-mail exchange that the
Officer quoted; and (iii) the fact that the Applicant did not
provide information as to when her husband began being abusive towards her,
whether this abuse occurred in Turkey or in Canada and what actions, if any,
she took in relation to that abuse. Although the Applicant did in fact state
that the abuse occurred in Turkey, she did not provide any of the other
information, all of which was directly relevant to the weight to be given to
her claim that she would likely suffer future abuse at Mr. Ates’ hands
if forced to return to Turkey.
[38]
Absent
that type of additional evidence regarding the past abuse and absent
additional evidence regarding the other matters that were “noted” by the
Officer, it was open to the Officer “to move immediately to an assessment of
weight or probative value without considering whether [the adduced evidence of
past abuse] is credible”. (Ferguson v. Canada (Citizenship and Immigration), 2008 FC 1067, at paras.
26 and 34.)
[39]
And
absent such additional evidence, it was also reasonable for the Officer to
conclude that the Applicant’s bald statements regarding the likelihood of
future abuse at the hands of her husband if she were forced to return to Turkey
were collectively insufficient to meet the Applicant’s burden of proof on this
issue. (Selliah, above; Ferguson, above, at paras. 32 and 33; Haji,
above, at para. 10; Kaba v. Canada (Citizenship and Immigration), 2006 FC 1113, at
paras. 24 and 29.)
[40]
Moreover,
given that the officer identified the availability of state protection as the
determinative issue, it was also open to the Officer to refrain from
elaborating further on this issue.
[41]
Ultimately,
the Applicant failed to meet her burden of proof on this issue because she
relied on bald, unsubstantiated and uncorroborated statements regarding her
past abuse at the hands of her ex-husband and the likelihood of future abuse. In
doing so, she put herself in a position where it was more difficult to meet
that burden. Proceeding in this manner is unwise where, as here, it is within
the Applicant’s power to provide the type of additional evidence or
corroboration that one would reasonably expect to find in support of an
application. (Haji, above, at para. 10.)
B. Did the
Officer apply the wrong test in assessing the availability of state protection?
[42]
The
Applicant claims that the Officer applied the wrong test by focusing on the
nature of the efforts made by the government of Turkey to strengthen the state protection
available to victims of domestic violence and human rights abuses, instead of
applying the standard of effective state protection. I disagree.
[43]
I am
satisfied that the Officer correctly focused on whether adequate state
protection would be available to the Applicant. The Officer then explicitly
found that “[s]tate
protection, while not perfect, is adequate.” In this regard, the Officer
added: “The documentary evidence shows that the applicant has recourse
available to her, should the authorities act contrary to their mandate.” The
Officer also noted that the “[o]bjective evidence shows that there are various
levels of protection available in Turkey, and the applicant
would have access to them. It is reasonable that if the applicant was to seek
state protection, she would be afforded such protection.” Based on these
statements, I am satisfied that the Officer did not merely articulate the
correct test, but that he in fact applied the correct test. He did not simply
focus on whether the Government of Turkey is making serious efforts to provide
state protection to victims of domestic violence and human rights abuses.
[44]
The Applicant
submits that in Canada (Attorney General)
v. Ward, [1993] 2 S.C.R. 689 the Supreme Court
established that the test is whether there state protection is effective.
There, the Court observed that once an objective and subjective fear of prosecution
has been established, it can be presumed that persecution will be likely, and
the fear well-founded, if it is determined that the state in question is unable
“to assuage those fears through effective protection.” On the facts of that
case, the Court concluded that once it was accepted that the appellant’s fear
of persecution was legitimate and that representatives of the state had
admitted their “ineffectiveness”, it was appropriate to presume the
well-foundedness of the appellant’s fears. (Ward, at para. 46.)
[45]
The Applicant also relies on Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171. There, the Court referred to the state protection test in
a number of different ways, namely, whether there is clear and convincing
evidence that state protection is “insufficient” (para. 46), “ineffective” (para.
54) or “inadequate” (para. 58).
[46]
Insofar as other authorities cited by the
Applicant are concerned, some characterized the test in terms of the ability of
a state to provide “effective” protection (see, for example, Skelly v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1244, at para. 44; and Balogh
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 809, at para.
34), while some characterized the test in terms of the ability of the state to
provide “adequate” state protection (see, for example, Balogh, above, at
para. 37; Cuffy v. Canada (Minister of Citizenship and Immigration)
(1996), 121 F.T.R. 81; Tobar v. Canada (Minister of Citizenship and
Immigration) (1999), 174 F.T.R. 80, at para. 30; Molnar v. Canada
(Minister of Citizenship and Immigration), [2003] 2 F.C. 339, at paras. 33
to 35).
[47]
Indeed, in her written submissions, the
Applicant herself also appears to use the terms “effective state protection”
and “adequate state protection” interchangeably. It is not apparent from a
close reading of the aforementioned cases that any distinction was drawn or
intended to be drawn between what constitutes “effective state protection” and
“adequate state protection”. These terms seem to have been used to convey
essentially the same test.
[48]
The
Respondent submitted that the law is well settled with respect to the
appropriate test for state protection, and that test is whether the state
protection is “adequate.” In support of this position, the Respondent relies on
The Minister of Citizenship and Immigration v. Carrillo, 2008 FCA 94 and Flores v. Canada (Citizenship and Immigration), 2008 FC 723.
[49]
In Carrillo, at para. 30, the Court held
that “a claimant seeking to rebut the presumption of state protection must
adduce relevant, reliable and convincing evidence which satisfies the trier of
fact on the balance of probabilities that the state protection is inadequate.” The
Court did not draw any explicit distinction between “adequate” state protection
and “effective” state protection, although it rejected the view that the
claimant’s burden could be met by merely adducing “reliable evidence of the
state’s inability to protect her”. (Carrillo, at para. 12.)
[50]
In Flores, at para. 8, my colleague Justice Richard Mosley observed that Carrillo
“confirmed that the test is adequacy rather than effectiveness per se.”
Citing Canada (Minister
of Employment and Immigration) v. Villafranca (1992), 18 Imm. L.R. (2d) 130 (F.C.A.), he elaborated upon this
distinction by stating: “It is not enough for a claimant merely to show that
his government has not always been effective at protecting persons in his
particular situation.” He added, at para. 11: “Requiring effectiveness of other
countries’ authorities would be to ask of them what our own country is not
always able to provide.”
[51]
This position was followed very shortly
afterwards in Samuel v. Canada (Citizenship and Immigration), 2008 FC 762, at
para. 13, where my colleague Justice Maurice Lagacé stated:
As for the question of whether the appropriate
test for assessing state protection is one of adequacy or effectiveness, the
Court finds that the former approach is the correct approach. To require full
effectiveness of foreign police and judicial systems would be to insist on a
standard for other states which we, in Canada, are not always able to achieve ourselves.
Where there is strong evidence to show that the police and judicial systems of
democratic states are so ineffective as to be inadequate, that might be a
reason for finding that state protection is unavailable. Such is not the case
here.
[52]
Based
on the foregoing review of the cases cited by the parties, I agree with the
Respondent that the law is now well-settled that the appropriate test for
assessing state protection is whether a country is able and willing to provide
adequate protection. In short, a claimant for protection under sections 96 or
97 of the IRPA must establish, with clear and convincing evidence, and on a
balance of probabilities, the inability or unwillingness of the state to
provide adequate protection. This burden of proof remains the same regardless
of the country being assessed, although the evidentiary burden required to
rebut the presumption of adequate state protection will increase with the level
of democracy of the state in question. (Carrillo, above, at paras. 25
and 26.)
[53]
As a
practical matter, while there is no legal requirement to produce corroborative
evidence (Kahn v. the Minister of Citizenship and Immigration, 2002 FCT
400, at para. 17), it will be more difficult to rebut the presumption of
adequate state protection with bald, uncorroborated statements, particularly
where, as in this case, it is within the claimant’s power to provide the type
of additional evidence or corroboration that one would reasonably expect to
find in support of an application. (Haji, above, at para. 10.)
[54]
Given
that a PRRA Officer will be entitled to give more weight to documentary
evidence, even if the applicant is found to be credible and trustworthy (Kahn,
above, at para. 18), a claimant would be well-advised to adduce persuasive and
recent evidence from respected, objective sources, such as the country reports
from the U.S. Department of State and the U.K. Home Office. These types of
reports typically will be more credible and persuasive than newsclippings or
articles written by advocacy organizations.
[55]
To
demonstrate inadequate state protection, “it is not enough for a claimant
merely to show that his government has not always been effective at protecting
persons in his particular situation.” (Villafranca, above, at 132).
Rather, it must be demonstrated that the state is so weak or corrupt that there
are extensive shortcomings in its ability or willingness to provide state
protection either to the public at large or to persons similarly situated
to the claimant, in terms of race, religion, nationality, political opinion,
social group, age, ethnic origin, etc. For example, if a 70 year-old woman
claims a risk of persecution or physical harm, it would not be particularly
helpful for her to adduce evidence of inadequate state protection of males or
young activists. Moreover, it would not be sufficient for her to simply adduce
evidence that the state protection that has been afforded to persons similarly
situated to her has been somewhat ineffective. In this case, the Applicant’s
failure to provide sufficient information regarding the state’s inability to
provide adequate protection to either the public at large or to persons similarly
situated to her was fatal.
[56]
To
establish that state protection is inadequate, it must be demonstrated that
such protection is significantly less adequate than it is in established
democracies. Accordingly, it will not be sufficient to adduce evidence of the
types of shortcomings or gaps in the provision of state protection that remain
in Canada or other developed
countries.
[57]
In
addition, given the forward-looking nature of the assessment, it will not
typically be sufficient to rely on evidence of past shortcomings in the
relevant country’s ability or willingness to provide adequate state protection.
Rather, it will typically be necessary to go further and provide persuasive recent
evidence from objective and reliable sources, demonstrating that the country in
question continues to be unable or unwilling to provide adequate state
protection. As discussed below, in this case, the Applicant fell significantly
short of her meeting her burden in this regard.
[58]
In
conclusion, the Officer in this case applied the correct test of adequacy of
state protection.
C. Did the
Officer err by ignoring important evidence pertaining to state protection?
[59]
The
Applicant claims that the Officer ignored important evidence that was
supportive of her claim.
[60]
In
this regard, she claims that the Officer failed to specifically mention a
statement in the U.S. Department of State’s publication entitled 2008 Human
Rights Report: Turkey that states: “The law prohibits violence against
women, including spousal abuse, but the government did not effectively enforce
it.” I am satisfied that the Officer captured the essence of this statement
when, after noting that “[v]iolence against women, including spousal abuse, was
a serious and widespread problem”, he stated: “Evidence illustrates that while
the government did not effectively enforce the law, the interior ministry and
Prime Ministry issued circulars during the year instructing relevant
departments to better enforce those laws”. The Officer then noted that domestic
human rights organizations have reported that these measures had been
“partially effective”.
[61]
The
Applicant also claims that the Officer disregarded evidence that various
aspects of the legal mechanisms that had been established were ineffective and
that other initiatives, such as the establishment of shelters, had not been
implemented. However, I am satisfied that the Officer did not disregard this
evidence. Indeed, the Officer’s decision specifically highlighted a passage
from the aforementioned 2008 Human Rights Report: Turkey which
reported on the number of shelters that had been opened by the government and
non-governmental agencies. In addition, by noting that the legal measures that
had been adopted had been only “partially effective,” the Officer implicitly
recognized and took into account that there were shortcomings with the legal
mechanisms that had been established to provide state protection. In my view,
it was not unreasonable for the Officer to refrain from elaborating upon this
in the decision.
[62]
Counsel
for the Applicant also made the generalized claim in her oral submissions that
the Officer ignored important evidence, some of which was set forth in the same
documents that were mentioned in the decision, which did not support the
conclusions reached in the decision. However, the Officer was not required to
“detail every piece of evidence provided and every argument raised”, so long as
the decision reached was within the bounds of reasonableness. (Rachewiski v.
Canada (Citizenship
and Immigration), 2010 FC 244, at para. 17.) Having reviewed the Certified
Tribunal Record, I am satisfied that the decision reached by the Officer was
well within "a range of possible, acceptable outcomes
which are defensible in respect of the facts and law." (Dunsmuir,
above, at para. 47.)
VI. Conclusion Regarding the PRRA
Decision
[63]
The
application for judicial review is dismissed. There is no question for
certification.
VII. The H&C Decision
[64]
The
Officer declined to grant the Applicant’s application for permanent residence
from within Canada on humanitarian and compassionate grounds on the basis that
she had not established that she would likely suffer hardship that would be
unusual, undeserved or disproportionate if forced to apply for permanent
residence from Turkey.
[65]
At
the outset of the H&C decision, the Officer stated that all the evidence
that the Applicant had provided in support of her H&C application and PRRA
application had been considered. However, the Officer added: “It is important
to note that risk is considered in the context of the applicant’s degree of
hardship, and not sections 96 and 97 of the IRPA.”
[66]
The
H&C decision then addressed the risks claimed by the Applicant and discussed
the state protection likely to be available in Turkey in respect
of those risks. This part of the decision, which was addressed under the
heading “Risk of Returning to Turkey”, was highly similar to the corresponding
part of the PRRA decision. Indeed, some paragraphs were identical. However,
other material was deleted and the language in other paragraphs (particularly
at the outset and at the end of this section) was adapted to reflect a focus on
hardship rather than on persecution and the risks set forth in s. 97 of the
IRPA.
[67]
Under
the heading “Establishment,” the decision then devoted several paragraphs to a
discussion of the Applicant’s level of establishment and integration into her
community in Canada. At the end of this part of the decision, the Officer
discussed the letters of support that had been submitted by friends and members
of the community.
[68]
The
following section of the decision addressed, under the heading “Return to
Country of Nationality”, various additional matters relevant to the Officer’s
assessment of the H&C application, including the feasibility of the
Applicant’s return to Turkey, the fact that she has a 23 year-old son there,
his best interests, and the additional network of family support that the
Applicant has in Turkey, including her father and two brothers. This section of
the decision concluded with the statement: “There is insufficient evidence
before me to support that the applicant would be unable to re-establish herself
in Turkey, or that
doing so constitutes unusual and undeserved, or disproportionate hardship.”
[69]
Finally,
the concluding section of the decision explained, over the course of three fairly
detailed paragraphs, the focus of the H&C process, the appropriate test to
be applied in assessing H&C applications (namely, whether an applicant
would face unusual, undeserved or disproportionate hardship), and why the
Officer had concluded that the Applicant had not met this test.
VIII. Issues
[70]
The
Applicant alleges that the Officer applied the wrong test in assessing her
H&C application, notwithstanding that the correct test was articulated
throughout the decision. More particularly, the Applicant alleges that the
Officer either (i) merely recited the majority of the analysis from the PRRA
decision and then substituted the word “risk” with the word “hardship”
throughout the H&C decision; or (ii) adopted, in the course of the H&C
assessment, essentially the same analysis as was used during the review of the
PRRA application.
[71]
In
addition, the Applicant alleges that the Officer further erred by failing to
hold a hearing to address a number of credibility issues that she alleges were
raised in the Officer’s assessment.
[72]
The
Applicant also alleges that the Officer erred by ignoring evidence that the
Applicant would face hardships as a woman if forced to return to Turkey,
particularly given her physical ailments.
IX. Analysis
A. Did the Officer apply the
wrong test in assessing the H&C application?
[73]
I
cannot agree with the Applicant’s position that the Officer implicitly applied
the wrong test in assessing the H&C application.
[74]
The
H&C decision was rendered the day before the PRRA decision. So it is not
possible that the Officer could have simply substituted the word “hardship” for
the word “risk” in the text that appeared in the PRRA decision.
[75]
When
confronted with this fact during the oral hearing, counsel for the Applicant
replied that while the H&C decision may have been dated one day prior to
the PRRA decision, it was obvious that it had actually been written after the
PRRA decision.
[76]
I
disagree. Firstly, the Officer stated, near the beginning of the PRRA decision:
“I was the officer that rendered the H&C decision.” This provides further
support for the fact that the H&C decision was written first. Secondly, the
Officer took care throughout the H&C decision to focus on the correct test,
which was repeated several times throughout the decision. Thirdly, apart from material
in the section under the heading “Risk of Returning to Turkey”, which is
discussed in Part VII above, the H&C decision discusses issues that were
not addressed whatsoever in the PRRA decision.
[77]
While
the Applicant claimed that the Officer’s discussion of state protection
supported her view that the Officer simply adopted the analysis from the PRRA
assessment in reviewing the H&C application, I am satisfied that this part
of the decision was part of the Officer’s assessment of the hardship, if any,
likely to be faced by the Applicant if forced to return to Turkey. After
reviewing the evidence on state protection, the Officer concluded: “While not
perfect, I find that state protection is adequate, and that it would not
constitute a hardship for the applicant to access such protection should she
chose to seek it.” The Officer then immediately proceeded to a more general
conclusion regarding the alleged hardships that the Applicant would face in Turkey.
[78]
Accordingly,
I am unable to conclude that the Officer applied the wrong test in assessing
the Applicant’s H&C application.
B. Did the
Officer err in failing to hold a hearing?
[79]
This
alleged error is based on the same facts and arguments that were addressed in
part V.A. of this decision and therefore do not need to be addressed again
here.
C. Did the
Officer err by ignoring important evidence?
[80]
The
Applicant’s final claim is that the Officer erred by ignoring evidence that the
Applicant would face hardship as a woman if forced to return to Turkey,
particularly given her physical ailments.
[81]
I
am satisfied that the Officer gave reasonable consideration to the totality of
the evidence adduced by the Applicant and independently researched by the
Officer. In the course of doing so, the Officer specifically acknowledged various
shortcomings in the implementation of strengthened laws and other initiatives
designed to improve the protection of human rights (including discrimination
based on gender) and to more effectively address violence against women.
However, after reviewing the progress that has been made in this regard, the
Officer concluded that the Applicant was unable to establish that her claimed
hardships are such that they would constitute unusual, undeserved or
disproportionate hardship.
[82]
The
Officer also implicitly addressed the medical issue raised by the Applicant in
concluding that there were no medical impediments to the Applicant’s return.
This statement was made in the context of the Officer’s assessment of the
nature of the hardships likely to be faced by the Applicant if forced to return
to Turkey.
[83]
In
conclusion, I am satisfied that the Officer did not err by ignoring important
evidence in the course of the assessment of the Applicant’s H&C
application.
X. Conclusion Regarding the H&C
Decision
[84]
The
application for judicial review is dismissed. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS
AND ADJUGES THAT the Applicant’s applications for judicial review
in matters IMM-4648-09 and IMM-4649-09 are dismissed.
“Paul S. Crampton”
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