Date: 20090415
Docket: IMM-3901-08
Citation: 2009 FC 382
Ottawa, Ontario, April 15, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
AHMET ORHAN GOKSU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
a Board of the Refugee Protection Division of the Immigration Refugee Board
(Board), dated August 12, 2008 (Decision) refusing the Applicant’s application
to be deemed a Convention refugee or person in need of protection under section
96 and section 97 of the Act.
BACKGROUND
[2]
The
Applicant is a 29-year-old, unmarried, citizen of Turkey, who resided
in Istanbul. He is from
a middle-class family. His mother is retired and his father is a part-time
adviser to a union of artists. The father was previously the Mayor of Istanbul.
[3]
The
Applicant received his economics degree in Turkey in 2002. In
2003, he went to the United States on a student visa to
study English.
[4]
He
has a Kurdish background and is of the Alevi religion. He describes himself as
a believer in leftist causes and of free and open political expression. He is
not a political activist in the sense of being a member of any party or a
political organizer. He is not a Kurdish separatist.
[5]
The
Applicant was briefly detained by police and “roughed up” after being randomly
grabbed out of crowds at political demonstrations in 1999 and 2001. At the
time, he was not specifically targeted; nor was he charged with any crimes, or photographed
or fingerprinted on these occasions.
[6]
The
Applicant returned to Turkey in 2003 after studying in the U.S. In March
2004, he participated in a politically sponsored celebration and was arrested
by police along with some others at the celebration. He was held for 24 hours
and beaten. He was not charged, photographed or fingerprinted.
[7]
In
July 2004, the Applicant attended another demonstration and was again detained
with others out of a crowd of about 2000 people. The police accused him of
being a Kurdish separatist, interrogated him about his friends and family, beat
him and held him down while the bottom of his feet were struck with sticks. He
was also warned that the police would be watching him in the future. He was
released after 30 hours. He was not charged with any crime; nor was he photographed
or fingerprinted. However, his name and address were written down. The
Applicant claims he suffered bruises and that his feet were swollen, but he had
no broken bones and he did not seek medical attention.
[8]
The
Applicant and his family decided that it would be best if he left the country.
He once again obtained a U.S. student visa and went to the U.S. in August
2004. After some time, he consulted a U.S. lawyer about claiming
asylum there. The lawyer advised that, post-911, the U.S. has cut back on
granting asylum and that the Applicant’s chances of succeeding with such a
claim in the U.S. were slim.
[9]
After
the Applicant learned of the possibility of making a refugee claim in Canada from an
acquaintance, he applied for and received a student visa to travel to Canada in
March 2006. He arrived on March 2, 2006 in Fort Erie, Ontario and
made a refugee claim in Toronto at an inland office on
March 6, 2006. When the Applicant arrived in Canada, he had a
number of months left on his U.S. student visa and he may have been able to
extend it further.
[10]
The
Applicant claims to have a well-founded fear of persecution from police in Turkey by reason of
his political opinion or perceived political opinion. He also believes that he
would be subjected personally to a danger of torture or to a risk to his life
or to cruel and unusual treatment or punishment if he has to return to Turkey.
DECISION UNDER REVIEW
[11]
The
Board found that the Applicant was not a Convention refugee or person in need
of protection because he does not have a well-founded fear of persecution for a
Convention ground in Turkey and his removal to Turkey would not subject him
personally to a risk to his life, or to a risk of cruel and unusual treatment
or punishment, or a danger of torture.
[12]
The
Board decided that the Applicant had been randomly detained by the police. He
was one of 1000-2000 people at each event where he was detained and was simply
unfortunate enough to be taken by police. There is no evidence that the police
specifically targeted the Applicant.
[13]
The
Board also held that, should the Applicant fly back to Istanbul, it would
not be likely that the police, even if they knew he had arrived, would take any
steps against him. In addition, there was insufficient evidence that the
Applicant’s life would be at risk. The Board found that the beating the
Applicant had experienced with a stick and his interrogation could be
considered a form of torture; however, it was not prolonged and did not result
in serious damage. Based on all of the evidence, the Board could not conclude
that the Applicant would suffer similar harm if returned or that the police
maintained an on-going record of the Applicant’s previous arrests.
[14]
The
Board noted that Turkey has changed significantly since the Applicant
left in 2004 and is in the midst of attempting to become a member of the
European Union. Therefore, benchmarks have been set for the country to improve
its human rights conditions prior to the country being able to achieve its
desired economic unity with Europe. So while the Applicant suffered physical
punishment on one occasion in 2004, the Board found no indication that the
authorities have maintained a specific record of his activities or that he was
ever charged with a crime. The Board held that there is no more then a mere
possibility that the Applicant would be persecuted by reason of his political
opinion.
ISSUES
[15]
The
Applicant submits the following issues on this application:
1)
Is
there any evidence to support his submissions with respect to the issues set
out below, and are any of these issues, either singly or in combination,
serious ones:
i. Did the
Board err in law, breach fairness in general or by failing to give adequate
reasons, err in fact and exceed jurisdiction in relation to failing to consider
the evidence before it regarding the incidents of torture?
ii. Did the Board
err in law, breach fairness in general or by failing to give adequate reasons,
err in fact and exceed jurisdiction in relation to failing to consider the
evidence before it regarding the evidence that the police would be watching
him?
iii. Did the Board
err in law, breach fairness, err in fact and exceed jurisdiction in failing to
consider compelling reasons under section 108 of the Act?
iv. Did the Board
err in law, breach fairness, err in fact and exceed jurisdiction in relation to
the risk threshold under section 97(1)(b) of the Act?
STATUTORY
PROVISIONS
[16]
The
following provisions of the Act are applicable in these proceedings:
|
Convention refugee
96. A Convention refugee is a person who, by reason of a
well-founded fear of persecution for reasons of race, religion, nationality,
membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is
unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the country
of their former habitual residence and is unable or, by reason of that fear,
unwilling to return to that country.
Person in need of protection
97. (1) A person in need
of protection is a person in Canada whose removal to their country or countries of
nationality or, if they do not have a country of nationality, their country
of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of
torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual
treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail
themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country
and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless
imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide
adequate health or medical care.
Person in need of protection
(2) A person in Canada who is a member of a class of persons prescribed by
the regulations as being in need of protection is also a person in need of
protection.
|
Définition de
« réfugié »
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont elle a la
nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de
la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité et se trouve hors
du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait
de cette crainte, ne veut y retourner.
Personne à protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs sérieux de le
croire, d’être soumise à la torture au sens de l’article premier de la
Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements
ou peines cruels et inusités dans le cas suivant :
(i) elle ne peut ou, de ce fait, ne veut se réclamer de
la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au mépris des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de
l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
STANDARD OF REVIEW
[17]
In Dunsmuir v.
New Brunswick, 2008 SCC 9,
the Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[18]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[19]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the non-procedural fairness issues raised by the Applicant to be
reasonableness. When reviewing a decision on the standard of reasonableness,
the analysis will be concerned with “the existence of justification,
transparency and intelligibility within the decision-making process [and also
with] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
[20]
The
Applicant has also raised procedural fairness issues, to which the standard of
review is correctness: Suresh v. Canada (Minister of
Citizenship and Immigration) 2002 SCC 1.
ARGUMENT
The Applicant
[21]
The
Applicant submits that the Board erred in finding that torture was decreasing
in Turkey. A 2007 U.S. Department
of State report found that torture had increased there. The Applicant views
this error as fatal to the Decision.
Unreasonable Finding or
Interpretation of Key Document
[22]
The
Applicant submits that the Board mis-construed some of the documentary
evidence; particularly the United Kingdom Operational Guidance Notes dated
April 18, 2007. The Applicant says that the policy of the UK Boarder Agency is
that if a person has not been previously detained, the risk of future mistreatment
is low. The Applicant points out that he was detained four times. The Board
does not explain how the Guidance Notes indicate that the Applicant would be at
a lesser risk.
Random Contact with the
Police
[23]
The
Board found that any future contact between the police and the Applicant would
be random. However, the Applicant submits that the Board ignored his evidence
that the police told him he would be watched.
Cumulative
Persecution
[24]
The Applicant submits that the Board failed to respond to the Applicant’s
argument that the repeated detentions, even if not persecutory discretely, were
persecutory in combination. The Applicant views this as a fatal error.
[25]
The Applicant cites and relies upon Sarmis v. Canada (Minister of
Citizenship and Immigration) 2004 FC 110 at paragraph 19:
19 Though it
is true that past persecution cannot be used solely to establish a fear of
future persecution, such persecution is capable of forming the foundation for
present fear, as stated by Dawson J. in Tolu v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 334, [2002] F.C.J. No. 447, (T.D.)
(QL), at paragraph 17 :
[...] the evidence establishes a
series of actions characterized to be discriminatory there is a requirement to
consider the cumulative nature of that conduct. This requirement reflects the
fact that prior incidents are capable of forming the foundation for present
fear. [...]
[26]
The Applicant submits that the RPD has been taken to task for errors in
relation to cumulative persecution in relation to the assessment of claims by
Turkish Kurds in at least two decisions: Ozen v. Canada (Minister of
Citizenship and Immigration) 2002 FCT 521 (Ozen) and Tolu v.
Canada (Minister of Citizenship and Immigration) 2002 FCT 334 (Tolu).
[27]
In Ozen, the Applicant notes that the RPD had discussed all of
the relevant incidents but was found to have erred in principle by analyzing
each incident in isolation and as discrete elements. The RPD is required to
consider the cumulative effect of the discrimination and consider the incidents
together. The Applicant relies upon paragraph 19 of the Ozen case, which
reads as follows:
19 In the present case, the
uncontradicted testimony of Mr. Ozen described five incidents involving the
police occurring between 1994 and 1999, which incidents included beatings and
harassment. The CRDD discussed each of these incidents in its reasons,
concluding that they amounted to "random problems" not amounting to
persecution. The CRDD did not consider whether the cumulative effect of these
incidents could amount to persecution.
[28]
The Applicant also relies upon paragraphs 15-18 in Tolu:
15 I begin by
observing three general principles of law. First, the identification of
persecution behind incidents of discrimination is a mixed question of fact and
law. The Federal Court of Appeal has said that it is for the CRDD to draw the
conclusion as to whether conduct constitutes persecution in a particular
factual context by proceeding with a careful analysis of the evidence adduced
and a proper balancing of the various elements contained therein. This Court is
not to intervene in the conclusions of the CRDD unless they appear to be
capricious or unreasonable. See: Sagharichi v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 796 (F.C.A.).
16 Second, as
to what constitutes persecution, the leading case is Rajudeen v. Canada
(Minister of Employment and Immigration) (1984), 55 N.R. 129 where the
Federal Court of Appeal at page 133 defined persecution in terms of to harass
or afflict with repeated acts of cruelty or annoyance; to afflict persistently;
to afflict or punish because of particular opinions or adherence to a
particular creed or mode of worship; a particular course or period of
systematic infliction of punishment directed against those holding a particular
belief; persistent injury or annoyance from any source.
17 Third, in
cases where the evidence establishes a series of actions characterized to be
discriminatory there is a requirement to consider the cumulative nature of that
conduct. This requirement reflects the fact that prior incidents are capable of
forming the foundation for present fear. See: Retnem v. Canada (Minister of
Employment and Immigration) (1991), 132 N.R. 53 (F.C.A). This is also
expressed in the UNHCR Handbook on Procedures and Criteria for Determining
Refugee Status in the following terms, at paragraph 53:
In addition, an applicant may
have been subjected to various measures not in themselves amounting to
persecution (e.g. discrimination in different forms), in some cases combined
with other adverse factors (e.g. general atmosphere of insecurity in the
country of origin). In such situations, the various elements involved may, if
taken together, produce an effect on the mind of the applicant that can reasonably
justify a claim to a well-founded fear of persecution on "cumulative
grounds".
18 In the
present case, I accept the submission advanced on Mr. Tolu’s behalf that the
CRDD failed to consider whether the cumulative weight of the treatment he experienced
could give rise to a well-founded fear of persecution…
Transcript
Incomplete
[29]
The Applicant submits that it is not possible to evaluate the exact
statements made by the Applicant as the transcript is incomplete because the
examinations by counsel and the tribunal officer are omitted.
Ambiguous
Statement
[30]
The Applicant points out that the Board made an ambiguous
statement which does not clarify whether the police kept a record of his
detentions. The Applicant’s evidence states what he was told and why he was
mistreated and threatened during the fourth detention. Therefore, the Board’s
negative finding is in error because the Applicant’s evidence was that the
police told him that they knew of his prior arrests when he was detained (and
tortured) during the fourth detention. The Board also failed to make a finding
one way or the other: F.H. v. McDougall 2008 SCC 53.
[31]
The Applicant also cites Rivas v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J.
No. 624 at paragraph 3 for the following:
…While
the Board has the authority to select and weigh the documentary evidence, it
also has a responsibility to make clear findings on the evidence that is before
them. The respondent argues that the applicant did not meet his burden of
proof. The standard of proof comes into play when the Tribunal is required to
make findings of fact. A finding of fact has been described as a determination
that a phenomenon has happened, is, or will happen independent of any
determination as to its legal effects: see L.L. Jaffe, Judicial Control of
Administrative Action, Toronto, Little Brown and Company, 1965, at page 548.
The question, of course, is how to interpret and apply the law to the facts
that are established in the proceeding. Speculation is not a substitute for
that responsibility. The Court is of the view that the Board fell into error
when, instead of making clear findings of fact, they engaged in their own
speculation as to the reason for the death of the father as well as to why the
applicant might be pursued.
Stop
Political Expression as a Price for Safety
[32]
The Applicant points to decisions of
this Court which hold that the RPD cannot expect an applicant to renounce their
activities or abandon expression of their political opinion: Islam v. Canada
(Minister of Citizenship and Immigration), [1999]
F.C.J. No. 135.
Error in Law
[33]
The
Board found that the Applicant was tortured but that there have been
significant changes since he left Turkey. The Applicant says that the Board erred in law
by failing to consider whether there were compelling reasons why the Applicant
should be determined to be a protected person. The Board never raised the issue
of changed circumstances at the hearing and, regardless of whether the
Applicant raised the issue of compelling reasons, the Board was required to do
so.
[34]
The
Applicant also relies upon paragraphs 4-5 in Yamba v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 457 (F.C.A.).
[35]
The
Applicant says that there is an arguable issue that any person who is tortured
may meet the compelling reasons test, and that a finding of torture is
extraordinary: Consolidated Grounds in the Immigration and Refugee
Protection Act: Persons in Need of Protection: Danger of Torture, Legal
Services Immigration and Refugee Board (May 15, 2002):
http://www.irb-cisr.gc.ca/en/references/legal/rpd/cgrounds/torture/index_e.htm#71.
Threshold of Risk under
Section 97(1)(b)
[36]
The
Applicant submits that this case represents an opportunity to examine whether
section 97(1)(b) requires an applicant to prove that he or she would be
cruelly treated, or prove only that there is a risk of such. The Applicant says
that the Board correctly expressed the statutory language when it set out that
harm has to be proven on a balance of probabilities. However, the Board makes
no distinction between section 97(1)(a) and (b). The Applicant believes
there is a serious issue as to what is required under (b).
[37]
The
Applicant concedes that under section 97(1)(a), he has to prove that he
would be tortured. However, he says that the jurisprudence is not definitive as
to whether he has to prove that he would be killed (life at risk) or would be
treated cruelly or unusually or would be punished cruelly or unusually: Li
v. Canada (Minister of Citizenship and Immigration) 2005 FCA 1.
[38]
The
Applicant says that there is an increased burden of proof for section 97(1)(a)
because the danger of torture has to be “believed on substantial grounds to
exist.” This does not exist for section 97(1)(b).
The Respondent
[39]
The
Respondent submits that the Board did not err in finding that torture has
decreased since the Applicant left Turkey in 2004. The finding only related to “the
situation for those affiliated to Kurdish, left wing, or Islamic terrorist
group or political parties.” As well, the Board was not required to refer to
every piece of evidence that it received that was contrary to its findings and explain
how it was dealt with. The issue is whether the Court should infer from a
failure to mention certain documentary evidence relied upon by the Applicant
that the Board overlooked important evidence or made an erroneous finding of
fact. A reading of the Decision as a whole does not give rise to such an
inference and the Board clearly indicated that it looked at the documentary
evidence.
[40]
The
Applicant produced no reports from his family that the authorities in Turkey had been looking for
him since he left in July 2004, or that he had had any difficulties in leaving
the country. Therefore, the Board reasonably found that the evidence did not
support a finding that the Applicant’s profile placed him at risk, or that the
“police would be watching him.”
[41]
The
Board also did not err in failing to consider subsection 108(4) of the Act.
Firstly, there is no statutory requirement for the Board to consider in every
case whether an applicant falls within subsection 108(4). As well, the Board is
obliged to consider subsection 108(4) only after finding that applicant was at
one time a Convention refugee but then ceased to be one because of changes in
country conditions in cases involving appalling past persecution. The
Respondent relies upon Hassan v. Canada (Minister of Employment and
Immigration), [1992] F.C.J. No. 946 (F.C.A.) at paragraph 6:
It is clear, as the appellant suggests, that subsections
2(2) and 2(3) of the Immigration Act speak to the loss of status as a
Convention refugee because of, inter alia, a change in material
circumstance in a refugee’s home nation. But those provisions in no way alter
the test used to initially determine a claimant’s status. It is trite law that
to establish status as a Convention refugee within the meaning of the Immigration
Act, one has to meet both a subjective and objective threshold. One must
have a “well-founded fear of persecution”. One cannot get to the point of
possibly losing one’s status as a Convention refugee, i.e. subsections 2(2) and
2(3) cannot be applicable, unless one first falls within the statutory
definition contained in subsection 2(1).
[42]
The
Respondent submits that the Applicant meets none of the Hassan
requirements and that the Yamba case referred to by the Applicant is not
applicable to the present situation because the applicant in that case had a
well-founded fear of persecution but then ceased to be a Convention refugee. There
was no finding in the present case that the Applicant was a Convention refugee
and then ceased to be such because of changed country conditions. Instead, the
Board found that the Applicant’s fear of persecution was not objectively
well-founded. Therefore, there was no obligation for the Board to consider
subsection 108(4) of the Act.
[43]
In
addition, the Respondent points out that for subsection 108(4) of the Act to be
invoked there must be exceptional circumstances. The Respondent cites Canada (Minister of Employment
and Immigration) v. Obstoj, [1992] 2 F.C. 739 (F.C.A.) at paragraphs 19-20:
…On any reading of subsection 2(3) it must extend to anyone
who has been recognized as a refugee at any time, even long after the date of
the Convention. It is hardly surprising, therefore, that it should also be read
as requiring Canadian authorities to give recognition of refugee status on
humanitarian grounds to this special and limited category of persons, i.e.
those who have suffered such appalling persecution that their experience alone
is a compelling reason not to return them, even though they may no longer have
any reason to fear further persecution.
The exceptional circumstances envisaged by subsection 2(3)
must surely apply to only a tiny minority of present day claimants…
[44]
The
Respondent also cites and relies upon the Federal Court Trial Division decision
of Hassan v. Canada (Minister of Employment and Immigration), [1994]
F.C.J. No. 630 (F.C.T.D.) at paragraph 11:
Lest
there be some concern that this interpretation of subsection 2(3) detracts from
the normal requirement of applicants demonstrating ongoing fear of persecution,
it should be recognized, as Hugessen J.A. pointed out in Obstoj, that
subsection 2(3) applies only to a tiny minority of present day claimants -those
in a special and limited category who can demonstrate that they have suffered
such appalling persecution, that their experience alone is a compelling reason
not to return them to the country in which they suffered persecution. While
many refugee claimants might consider the persecution they have suffered to fit
within the scope of subsection 2(3), it must be remembered that the nature of
all persecution, by definition, involves death, physical harm or other
penalties. Subsection 2(3), as it has been interpreted, only applies to
extraordinary cases in which the persecution is relatively so exceptional, that
even in the wake of changed circumstances, it would be wrong to return refugee
claimants.
[45]
The
Respondent submits that, while the Applicant may have suffered some physical
punishment on one occasion in the past, he failed to adduce any evidence that
meets the compelling reasons doctrine.
[46]
The
Respondent also submits that the law is well-settled as to the “threshold of
risk” required under section 97(1)(b) of the Act and that the Board
applied the correct test. The degree of risk for paragraphs 97(1)(a) and
(b) is the same, as stated in Anthonimuthu v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 162 at paragraphs 35
and 56:
The
applicant also goes on to argue that the test for s. 97(1)(a) of the IRPA is
different (and lower) from the test for section 97(1)(b) of the IRPA, and
definitely lower than the test under section 96. Focusing on the use of the
word “risk” in section 97(1)(b), the Applicant contends that it is a standard
quite a bit lower than the reasonable chance test that is used in the context
of section 96.
…
Finally,
there was some discussion as to the proper standard to be used in assessing the
risk under section 97(1)(b). This was indeed a question that was certified for
an appeal to the Federal Court of Appeal under section 74(d) of the Act.
Fortunately, we now have the benefit of the Court of Appeal's views, as they
decided in Li v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 1, 2005
FCA 1, that the
degree of risk under paragraphs 97(1)(a) and (b), is “more likely than not”.
Rothstein J.A., speaking for the Court of Appeal, also noted that the standard
of proof to be applied, under both section 96 and section 97 of the IRPA, is the
balance of probabilities test. The Board did not err in applying the balance of
probabilities test, but, as it erred in the credibility finding, the decision
must be set aside.
[47]
The
Respondent also relies upon Chowdhury v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J. No. 368 at paragraphs 8-9:
The selection of the appropriate legal test is a question
of law, reviewable on a standard of correctness. I am not satisfied that the
member erred by using the phrase ‘substantial grounds’ in her analysis for
assessing the risk to the applicant under subsection 97 (1) of the IRPA, rather
than by reference to the balance of probabilities standard.
I note that in Li v. Canada (Minister of Citizenship and Immigration), 2005
FCA 1, [2005]
F.C.J. No. 1, the question was essentially the reverse of the one at
issue here. The Court of Appeal was asked to ascertain the appropriate degree
of risk for paragraph 97(1)(a) of the IRPA, and held that it was a balance of
probabilities, or ‘more likely than not’. Justice Marshall Rothstein, as he
then was, next determined that the appropriate degree of risk for paragraph
97(1)(b) was also more likely than not. While it is true that the term ‘substantial
grounds’ appears in the former provision but not the latter, the degree of risk
is the same. To vacate the member’s decision on this narrowly technical point
would be to place form above substance.
[48]
The
Respondent concludes that the Applicant’s argument regarding the appropriate
threshold of risk under paragraph 97(1)(b) of the Act is a red herring.
ANALYSIS
[49]
The
Applicant has raised a variety of factual and legal issues. I do not think it
is necessary to address all of them because I am persuaded that the Board’s
failure to address the Human Rights Watch Report 2008, and its review of
human rights issues in Turkey in 2007, together with
counsel’s submissions on this document at the hearing before the Board, is
determinative.
[50]
The
Board’s view that “the political situation in [Turkey] has changed
significantly since the claimant left in 2004” and the documentation relied
upon by the Board to support a downward trend in the number of cases of torture
and ill-treatment is directly contradicted by the Human Rights Watch Report
that was brought to the Board’s attention by counsel. In fact, the latter
document corrects the impression of improvement given by the earlier documents.
[51]
It
was the Applicant’s position that if he returned to Turkey and engaged in
political activity he would be detained and tortured. The Human Rights Watch Report
clearly provides objective evidence for his subjective fears. His credibility
was never an issue and the Board even acknowledges that “he was verbally
attacked, interrogated about his acquaintances, beaten and, more seriously,
subjected to physical punishment which could be seen as torturous in nature.”
[52]
On
this basis alone, and in accordance with the well-known principles set out in Cepeda-Gutierrez
v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1425 (F.C.T.D.), this matter
needs to be returned for reconsideration by a different officer.
[53]
I
also agree with the Applicant that the Officer’s conclusions at paragraph 26 of
the Decision that “it is not clear to me that the police have even maintained
an on-going record of this claimant’s previous arrests such that, four years
later, they would likely even be aware of his previous arrests” is at odds
with, and fails to take into account, the Applicant’s clear and uncontradicted
testimony that “they told me that they were aware of my previous detention” and
would be watching him in the future.
[54]
In
light of these conclusions, there is no point in my addressing the other, more
legal aspects, of the Applicant’s submissions. The Applicant has also submitted
a question for possible certification dealing with section 97(1)(b) of the
Act and the burden of proof. In light of my findings, I do not think it would
be appropriate to certify the question because it is not dispositive of my
decision.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is allowed and the matter is referred back for reconsideration by a
different officer;
2. There is no
question for certification.
“James
Russell”
Email this Content