Date: 20070207
Docket: IMM-1526-06
Citation: 2007 FC 143
Ottawa, Ontario, February 7, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MERDAN OGUZHAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr.
Merdan Oguzhan is a failed claimant for refugee protection. He was afforded
the opportunity to make a pre-removal risk assessment (PRRA) application, and
in it he sought to revisit the findings of the Refugee Protection Division of
the Immigration and Refugee Board (RPD) which had dismissed his application for
refugee protection. He argued that in the unusual circumstances of his case,
it would be unjust and unfair if his PRRA application failed because of the
flawed RPD decision. The officer who conducted the PRRA assessment (officer)
rejected Mr. Oguzhan's application. On this application for judicial
review of the negative PRRA decision, I conclude that Mr. Oguzhan's submissions
constitute an impermissible collateral attack upon the decision of the RPD.
For the reasons that follow, the application for judicial review is dismissed.
The issues arise in the following factual context.
BACKGROUND
FACTS
[2] Mr. Oguzhan is a citizen of Turkey. In his
claim to the RPD he stated that he was a Kurdish Alevi who had been involved in
the Halkin Demokrasi Partisi, or the People’s Democracy Party in Turkey
(HADEP). While the RPD accepted that the applicant was an Alevi Kurd from Turkey,
it did not accept that he had established his true identity.
[3] When interviewed at the port of entry upon
arrival in Canada, Mr. Oguzhan stated that he wanted to come to Canada because
of its respect for human rights and its economic freedom. He noted that there
was a problem in Turkey with jobs and he stated that his quality of living
would not change if he stayed in Turkey. He made no mention of his involvement
in HADEP or his persecution. On the basis of his failure to mention at the
port of entry any fear arising from his ethnicity or involvement with HADEP,
the RPD was not satisfied that Mr. Oguzhan had a well-founded fear of
persecution in Turkey. The RPD considered the documentary evidence before it
and found that being Kurdish or Alevi did not, in itself, establish a
well-founded fear of persecution. Leave to review that decision was refused by
this Court.
[4] When the PRRA process was initiated by the
Canada Border Services Agency (CBSA), Mr. Oguzhan's counsel assumed that
the CBSA had in its possession a valid travel document for Mr. Oguzhan. In his
counsel's view, this would be significant because the issue of Mr. Oguzhan's
identity and true name had "played a central role" in the negative
decision of the RPD. Ultimately, Mr. Oguzhan's counsel learned that the CBSA
had not yet received any passport or travel document.
[5] Mr. Oguzhan then submitted his PRRA
application. In it, he raised, among other things:
1. The
importance of identity documents obtained in the name of Merdan Oguzhan. His
counsel submitted that since the balance of the RPD's findings rested upon its
finding that Mr. Oguzhan lacked credibility with respect to his identity, it
was incumbent upon the officer to review the basis of Mr. Oguzhan's refugee
claim and "make a determination on the merits of the risk to him of harm".
2. Turkey's
poor human rights record.
3. A
request for an oral hearing that flowed from the flawed RPD decision.
Specifically, new identity documents were said to bolster Mr. Oguzhan's
credibility.
THE
DECISION OF THE OFFICER
[6] The officer did not grant an interview to
Mr. Oguzhan. The officer made the following findings:
1. The
PRRA application relied upon the same testimony that the RPD had found not to
be credible. An updated psychological report was found not to address the
negative credibility findings of the RPD.
2. The
question of personal identity was not central to the decision of the RPD. The
determinative factors were the omissions in the port of entry interview.
3. With
respect to Mr. Oguzhan's allegations of detention and abuse in Turkey, no
evidence was filed to rebut the negative credibility findings of the RPD.
Absent new evidence, subsection 113(a) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) prevented the officer from
redetermining the merits of the refugee claim.
4. The
officer was not satisfied there had been a material change in the treatment of
Kurds in Turkey since the January 29, 2003 decision of the RPD. Therefore, the
officer found that Mr. Oguzhan would not face a serious possibility of persecution
in Turkey because of his ethnicity, or that he would be at substantial risk of
torture, death, or cruel or unusual treatment or punishment. While Mr. Oguzhan
might experience discrimination, such discrimination would not, even
cumulatively, rise to the level of persecution.
5. Issues
relating to humanitarian and compassionate considerations neither raised
concerns about persecution in Turkey nor concerns about any risk described in
section 97 of the Act.
THE ISSUES
RAISED ON THIS APPLICATION
[7] Mr. Oguzhan raised three issues:
1. Was
the PRRA application initiated prematurely and contrary to law?
2. Did
the officer err in law by refusing an oral hearing?
3. Did the officer inappropriately assess the documentary
evidence?
[8] The issue raised in Mr. Oguzhan's memorandum
of fact and law with respect to the officer's failure to consider humanitarian
and compassionate factors was withdrawn during oral argument.
STANDARD OF
REVIEW
[9] With
respect to these issues, to the extent Mr. Oguzhan argues that the asserted
errors constitute a breach of the principles of procedural fairness or natural
justice, it is well settled that the content of the duty of fairness is a
matter for the Court to decide. No standard of review, as determined by a pragmatic
and functional analysis, is required. See: Ha v. Canada (Minister of Citizenship and
Immigration, [2004] 3 F.C.R. 195 (F.C.A.) at paragraphs 42 through 44. The proper
interpretation and application of the Act and its associated regulations is a
question of law, therefore, reviewable on the standard of correctness.
[10] As
to the appropriate standard of review to be applied to a decision of a PRRA
officer, in Kim v. Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 540 (T.D.) at paragraph 19, Mr. Justice Mosley, after conducting a
pragmatic and functional analysis, concluded that "the appropriate
standard of review for questions of fact should generally be patent
unreasonableness, for questions of mixed law and fact, reasonableness simpliciter,
and for questions of law, correctness". Mr. Justice Mosley endorsed the
finding of Mr. Justice Martineau in Figurado v. Canada (Solicitor General),
[2005] F.C.J. No. 458 (T.D.) at paragraph 51, that the appropriate
standard of review for the decision of a PRRA officer is reasonableness simpliciter
when the decision is considered "globally and as a whole". This
jurisprudence was followed by Madam Justice Layden-Stevenson in Nadarajah v.
Canada (Solicitor General), [2005] F.C.J. No. 895
(T.D.) at paragraph 13. For the reasons given by my colleagues, I accept this
to be an accurate statement of the applicable standard of review.
CONSIDERATION OF THE ISSUES
1. Was the PRRA application commenced prematurely?
[11] This was
characterized by Mr. Oguzhan's counsel to be the most significant issue. She
argued that while officers have flexibility as to when to initiate the PRRA
process, a relevant consideration must be fairness. Here, where Mr. Oguzhan's
identity had been put in issue by the RPD, fairness required that the CBSA
obtain a passport or travel document in Mr. Oguzhan's name before commencing
the PRRA process. The failure to do so was said to be unfair and a breach of
natural justice.
[12] This argument is
premised upon the inference that evidence establishing the applicant to be the
person he claimed to be before the RPD would be new evidence, directly relevant
to the risk feared by Mr. Oguzhan. In my view, this is not a proper inference
for two reasons.
[13] First, I agree with
the officer that Mr. Oguzhan's failure to establish that he was not Merdan
Oguzhan was not the central finding of the RPD from which flowed its finding
that he was not credible. Of equal or greater importance was his failure to
raise any suggestion of risk when interviewed at the port of entry.
[14] Second, the RPD
considered the generalized risk faced by the applicant as a Turkish Alevi
Kurd. The RPD did not assess any personalized risk resulting from being a
member or supporter of HADEP. However, as his counsel conceded in oral
argument, Mr. Oguzhan never claimed any personalized risk as Merdan Oguzhan.
There was no suggestion that Merdan Oguzhan’s profile was such that he would be
individually targeted. In counsel's words, "Merdan Oguzhan was not
specifically wanted in Turkey". In that circumstance, any passport would not have
the significance argued by counsel in that a passport would not establish Mr.
Oguzhan to have been a member of HADEP.
[15] Chapter 10 of the
Enforcement Manual instructs officers, in section 15.4, that "[t]here are
several trigger points that could decide the timing of the notification for a
person to submit a PRRA application". One suggested trigger point is where
there is no valid travel document but an application is completed and has been submitted
to the relevant embassy or mission. Because some embassies and missions
provide documents very quickly, officers are given flexibility to determine when
the time is best for commencing the PRRA process with the goal of enforcing
removal as soon as practicable should there be a negative PRRA decision.
[16] In the light of that
reasonable guidance given to officers and the fact that, in my view, travel
documents in this case do not have the significance counsel argues, I find no
breach of procedural fairness or other error in the timing of the commencement
of the PRRA process.
2. Did the officer err in law by refusing an
interview?
[17] An oral interview
was requested because:
1. Mr. Oguzhan had been found to lack credibility
on the basis of the issue of personal identity and the port of entry interview.
2. Counsel assumed that because the PRRA process
had been initiated, Mr. Oguzhan was removal ready and that a travel document
had been obtained for him.
3. A travel document would be new evidence going to
Mr. Oguzhan's credibility in a positive manner.
4. The issue of Mr. Oguzhan's identity
was central to his claim for protection.
[18] The officer declined
to grant an interview because no new travel documents had been obtained, so
there was no new evidence in that form and because the question of personal
identity was not central to the credibility findings of the RPD.
[19] Section 167 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 provides:
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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.
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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.
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[20] The officer was
correct that there were no new identity documents and I agree that the question
of Mr. Oguzhan's personal identity was not central to the credibility findings
of the RPD. Accordingly, I find the officer neither erred in law nor breached
procedural fairness by not interviewing Mr. Oguzhan.
[21] The reasons provided
for the refusal, as found in the officer's assessment of the claim, were
sufficient to allow Mr. Oguzhan to know why he was not granted an interview and
permit judicial review of the officer's decision.
3. Did the officer improperly assess the
documentary evidence?
[22] In my view, the
officer correctly set out the question to be answered: had there been a
material change in circumstance in Turkey with respect to the treatment of Alevi Kurd's since the
RPD's decision?
[23] Mr. Oguzhan argues
that the officer: failed to consider "whether there exist compelling
reasons arising out of [Mr. Oguzhan's] previous experience of persecution and
torture, and out of his present mental health status such that it is reasonable
for him to refuse to avail himself" of the protection of Turkish
authorities. Also, Mr. Oguzhan argues the officer failed to conduct a
sufficient analysis of the issues, failed to provide adequate reasons for his
decision and that he ignored relevant evidence.
[24] I have concluded
that the officer did not err as alleged for the following reasons.
[25] First, Mr. Oguzhan
failed to establish a well-founded fear of persecution before the RPD and
provided insufficient new evidence before the officer on the PRRA application.
Further, he argued that conditions in Turkey had worsened. Thus paragraph 108(1)(e) of the Act
had no application and there was, in my view, no need to consider subsection
108(4) of the Act relating to compelling circumstances. Section 108 of
the Act is set out in the attached schedule to these reasons.
[26] Second, the reasons
of the officer were sufficient. They set out the evidence and factors the
officer considered and explained why the PRRA application was refused.
[27] Third, I have not
been persuaded that the officer ignored relevant evidence. I have reviewed
carefully the evidence counsel pointed to in oral argument as being relevant
evidence ignored by the officer. However, all such references discussed the
treatment of individual members of HADEP, the Kurdistan Workers Party, ethnic
Kurdish rebels and Kurdish rights activists. Mr. Oguzhan has not
established that he fits within any of these categories.
[28] As
discussed above, the applicable standard of review to be applied to the
decision of the officer as a whole is reasonableness simpliciter. An
unreasonable decision is one that, in the main, is not supported by any reasons
that can stand up to a somewhat probing examination. See: Canada (Director of Investigation
and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56. A decision
will be unreasonable only if there is no line of analysis within the given
reasons that could reasonably lead the decision-maker from the evidence to his
or her ultimate conclusion. The reasons are to be taken as a whole to see if,
as a whole, they provide tenable support for the decision. See: Law Society
of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraphs 55 and 56. Applying
that standard of review to the officer's decision, I have not been persuaded
that the decision was unreasonable or made without regard to the evidence
before the officer.
CONCLUSION
[29] For
these reasons, the application for judicial review will be dismissed.
[30] Counsel
posed no question for certification and I agree that no question arises on this
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
The application for judicial review is dismissed.
“Eleanor R. Dawson”
SCHEDULE
Section 108 of the Act:
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108.(1) A claim for refugee
protection shall be rejected, and a person is not a Convention refugee or a
person in need of protection, in any of the following circumstances:
(a)
the person has voluntarily reavailed themself of the protection of their
country of nationality;
(b)
the person has voluntarily reacquired their nationality;
(c)
the person has acquired a new nationality and enjoys the protection of the
country of that new nationality;
(d)
the person has voluntarily become re-established in the country that the
person left or remained outside of and in respect of which the person claimed
refugee protection in Canada; or
(e)
the reasons for which the person sought refugee protection have ceased to
exist.
(2) On application by the Minister, the
Refugee Protection Division may determine that refugee protection referred to
in subsection 95(1) has ceased for any of the reasons described in subsection
(1).
(3) If the application is allowed, the
claim of the person is deemed to be rejected.
(4) Paragraph (1)(e)
does not apply to a person who establishes that there are compelling reasons
arising out of previous persecution, torture, treatment or punishment for
refusing to avail themselves of the protection of the country which they
left, or outside of which they remained, due to such previous persecution,
torture, treatment or punishment.
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108. (1) Est rejetée la demande
d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger
dans tel des cas suivants :
a) il se
réclame de nouveau et volontairement de la protection du pays dont il a la
nationalité;
b) il
recouvre volontairement sa nationalité;
c) il
acquiert une nouvelle nationalité et jouit de la protection du pays de sa
nouvelle nationalité;
d) il
retourne volontairement s’établir dans le pays qu’il a quitté ou hors duquel
il est demeuré et en raison duquel il a demandé l’asile au Canada;
e) les
raisons qui lui ont fait demander l’asile n’existent plus.
(2) L’asile visé au paragraphe 95(1) est
perdu, à la demande du ministre, sur constat par la Section de protection des
réfugiés, de tels des faits mentionnés au paragraphe (1).
(3) Le constat est assimilé au rejet de la
demande d’asile.
(4) L’alinéa (1)e) ne s’applique pas si le demandeur
prouve qu’il y a des raisons impérieuses, tenant à des persécutions, à la
torture ou à des traitements ou peines antérieurs, de refuser de se réclamer
de la protection du pays qu’il a quitté ou hors duquel il est demeuré.
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