Docket: IMM-6803-24
Citation: 2025 FC 467
Toronto, Ontario, March 13, 2025
PRESENT: Madam Justice Whyte Nowak
BETWEEN: |
SELAHADDIN KILIVAN |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Selahaddin Kilivan [Applicant], is a Turkish citizen of Kurdish descent who filed a Pre-Removal Risk Assessment [PRRA] application in which he claimed persecution in Türkiye due to his Kurdish ethnicity and political affiliation [Application]. By decision dated February 2, 2024 [Decision], a PRRA officer [Officer] refused the Application, finding that there is less than a mere possibility that the Applicant will face a risk under either section 96 or 97 of the Immigration and Refugee Protection Act, SC 2001, c 27, as the general discrimination of Kurdish people in Türkiye does not rise to the level of persecution and the Applicant had failed to show a personalized risk of persecution.
[2] The Applicant seeks judicial review of the Decision.
[3] For the reasons that follow, I find that the Decision is unreasonable and was arrived at in a manner that was procedurally unfair. Accordingly, this application for judicial review is granted.
II. Facts
A. The Applicant’s PRRA Application
[4] The Applicant filed a PRRA Application in which he claimed persecution in Türkiye due to his Kurdish ethnicity and his political opinion and activities.
[5] The Applicant provided evidence that he and his family members face racial discrimination every day in Türkiye. The Applicant described the discrimination he faced during his compulsory military service and while living in Istanbul when his restaurant was damaged by far-right extremists and the police refused to make a police report. He also described incidents of discrimination faced by his family, including his mother who was refused care at a local hospital.
[6] The Applicant’s evidence included a 2002 newspaper article reporting on his mother’s treatment in the hospital in Türkiye, and letters from members of the Applicant’s family detailing incidents of physical assault and psychological abuse.
[7] The Applicant also claimed persecution based on his political opinion and activities as a member and supporter of the Peoples’ Democratic Party (Halklarin Demokratik Partisi) [HDP], which promotes Kurdish rights. The Applicant described two incidents of police abuse. The first occurred in March 2016 at an event organized by the HDP where the Applicant was arrested by the police, taken into custody without justification or a warrant, and brutally attacked. The second occurred in August 2022 when he was stopped by four undercover police officers who beat him when he refused their demand that he spy on leaders of the HDP.
[8] In support of his PRRA Application, the Applicant provided documentation that included a letter from the HDP confirming his membership in the party, a supporting letter from Hasan Gunhan from the Kurdish movement, pictures of the Applicant attending HDP events and demonstrations between 2015-2022, and photos showing the Applicant’s injuries from the alleged incidents of persecution in 2010 and 2022. The Applicant also submitted country condition evidence regarding the mistreatment of Kurds and HDP members in Türkiye, which include arbitrary arrest and torture by Turkish police and human rights abuses.
[9] It was after the second incident of police brutality that the Applicant decided to leave the country. He left Türkiye in October 2022.
[10] According to the Applicant’s wife, as of January 2023, the police were still coming by his home looking for him.
B. The PRRA Decision
[11] The PRRA Officer refused the Applicant’s Application for three reasons.
[12] First, the Officer found that the evidence of discrimination did not amount to persecution. While the PRRA Officer acknowledged that the country condition evidence shows that there are instances of harassment, discrimination, and mistreatment of Kurdish people in Türkiye, including by the state, the PRRA Officer noted that, “even when taken cumulatively, discrimination faced by Kurds does not in general, by its nature or repetition, amount of a real risk of persecution and/or serious harm.”
[13] Secondly, the PRRA Officer found that the Applicant had not made out a personalized risk. The Officer considered the Applicant’s past incidents of discrimination at the hands of the state to be consistent with the objective country condition evidence in that the treatment was “not severe by its nature or repetition”
and therefore did not amount to persecution. While the Officer acknowledged the discrimination faced by the Applicant’s brother and mother, the Officer did not find this to be evidence of a personalized risk for the Applicant in Türkiye.
[14] Finally, the PRRA Officer further considered the Applicant had not demonstrated that his profile within the HDP fits the profile of someone who would face persecution based on his low-level membership in the HDP.
[15] The Officer concluded:
I find that the applicant submitted insufficient evidence to demonstrate that there is a compelling reason based on his past or based on objective evidence that demonstrates that, on a balance of probabilities, [he] would face persecution on a forward-looking basis.
III. Issue and Standard of Review
[16] The Applicant has raised a number of issues going to the reasonableness of the Decision and whether he was denied procedural fairness; however, I find that it is sufficient to dispose of this application on the basis of the Applicant’s submission that the Officer erred in assessing the evidence of the Applicant’s risk of persecution based on the Applicant’s HDP affiliation, which includes the following two issues:
Was the Officer’s consideration of the Applicant’s affidavit reasonable and fair?
Did the Officer ignore contradictory evidence?
[17] I agree with the parties that the applicable standard of review is that of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16, 23, 25 [Vavilov]).
[18] In conducting a reasonableness review, the Court must consider whether the decision is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrained the decision maker (Vavilov at para 85). It is a deferential standard of review, which means that a reviewing court must intervene only if “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov at para 100).
IV. Analysis
A. Was the Officer’s consideration of the Applicant’s Affidavit reasonable and fair?
[19] The Applicant submits that the following portion of the Decision reveals errors on the part of the Officer going to both the reasonableness and fairness of the Decision:
The applicant also detailed the police harassment he faced in March 2016 in August 2022. The applicant has no documentation detailing these events. I find that the affidavit is insufficient evidence to demonstrate that it was due to his Kurdish ethnicity or his political affiliation with the HDP. I am unable to ascribe this more than minimal weight.
[20] First, the Applicant submits that it was unreasonable for the Officer to find that the March 2016 and August 2022 incidents detailed in the Applicant’s affidavit are insufficient evidence to demonstrate that his mistreatment by state police was due to his Kurdish ethnicity or his political affiliation with the HDP.
[21] The Applicant submits that the Officer failed to engage meaningfully with the content of the Applicant’s affidavit, which describes the incident in August 2022 in the following manner:
In the same month, on [sic] August 2022, when I was coming home from work around 11pm, about 4 civilian police confronted me and told me to get in their car. I was forced to get in their car, and they were driving around, and they asked me questions about my involvement with the HDP, and they wanted me to spy on the party. I refused their request and then they started beating me inside the car and threatened me with death. After the threat, I was scared for my life, and I told them that I would think about it. They threatened that if I did not act as spy for them against the HDP, they would go after my family. They were driving me for about 3-4hrs. After that, they stopped the vehicle, opened the door, and threw me out of the car.
[22] As the Applicant points out, the evidence clearly connects the incident of persecution to his political affiliation. I agree with the Applicant that the Officer’s dismissal of this evidence as insufficient without a clear rationale as to why it does not support the Applicant’s fear of persecution fails to meet the Vavilov standard of justification (Vavilov at para 86, Chekroun v Canada (Citizenship and Immigration), 2013 FC 738 at para 65).
[23] Moreover, the objective country evidence from the United Kingdom, Home Office, Country Policy and Information Note. Turkey: Kurds. Version 3.0. February 20, 2020 [UK Home Office Report], upon which the Officer relied, instructs that each case must be assessed on its facts in order to determine whether the level of discrimination rises to a level that amounts to persecution. However, the PRRA Officer failed to heed this instruction. The Applicant’s fear of the police is more than the generalized risk of his political affiliation with the HDP; it also stems from his refusal to agree to spy on the HDP leadership, which forms part of the Applicant’s profile that the PRRA Officer failed to acknowledge.
[24] Second, the Applicant submits that he was denied procedural fairness in the manner in which the Officer assessed his evidence. According to the Applicant, the minimal weight attributed to the Applicant’s evidence because of a lack of objective corroborating evidence constitutes a veiled assessment of credibility, which, as a matter of procedural fairness, required the Officer to allow the Applicant to respond to the Officer’s concern. The Applicant cites JKL v Canada (Citizenship and Immigration), 2021 FC 1166 and Yakut v Canada (Citizenship and Immigration), 2009 FC 1190 [Yakut] at paragraph 13, which found that where an officer cites “insufficient objective evidence”
in support of an applicant’s assertions, it amounts to a finding that the officer disbelieved the applicant and constitutes a conclusion about the applicant’s credibility.
[25] The Respondent submits that as the Officer did not refer to the Applicant’s credibility in assessing the Applicant’s evidence, the Officer’s concern was with the sufficiency of the evidence (citing Kahsay v Canada, 2017 FC 116 at para 20). The Respondent submits that the Officer was entitled to require corroboration in the face of the Applicant’s self-serving evidence.
[26] I am not persuaded by the Respondent’s argument given the lack of reference in the Officer’s Decision to a concern over self-serving evidence. The Officer’s statement that the Applicant failed to show that the August 2022 incident was due to his political affiliation with the HDP when the Applicant clearly stated that it represents a disconnect that is suggestive of an issue of credibility.
[27] The Respondent also suggests that Yakut is distinguishable because it relates to a claim of persecution based on an applicant’s sexuality, for which there is rarely any objective corroborating evidence. I consider the reasoning to be equally applicable in a scenario where the Applicant’s fear of persecution stems from extra-judicial incidents with the police, which are also unlikely to be documented.
B. Did the Officer fail to address contradictory evidence?
[28] The Applicant submits that the Officer failed to engage with the Applicant’s corroborating evidence which contradicted the Officer’s finding that the Applicant’s treatment at the hands of the Turkish police was not due to his political affiliation and did not amount to a forward-facing risk. That evidence included: (i) the letter from his wife, which states that the police were coming by their house looking for the Applicant many months after the last incident in August 2022; (ii) the photo evidence of the Applicant’s injuries from police beatings; and (iii) country condition evidence which reported on the police detention of Kurdish people suspected of being affiliated with the HDP.
[29] I agree with the Applicant that the Officer’s silence on the evidence of the Applicant’s wife that the police were coming to their home in January 2023 looking for the Applicant contradicts the Officer’s finding that:
While the Applicant alleges that he was attacked in March 2016 and August 2022 by police officers, I note that in both incidences the applicant was released and returned home. This indicates that he does not hold a high-ranking position in the HDP and is not of interest to the authorities.
[30] The Respondent argues that the Officer was not required to refer to every piece of evidence, and when the Applicant’s evidence is viewed holistically, it is consistent with the UK Home Report and other country condition evidence which acknowledges that low-level HDP members can expect to face harassment and false detention. I disagree. The Officer’s failure to address significant and seemingly contradictory evidence is a reviewable error (Vavilov at para 126, Bledy v Canada (Citizenship and Immigration), 2011 FC 210 at para 49). The Officer ought to have addressed it and explained why the continued interest of the police in locating the Applicant months later does not corroborate the Applicant’s fear of continued persecution and, in light of the unusual demand made of the Applicant by the police in the August 2022 incident, whether it supports the Applicant’s argument that his profile is different from that of a regular low-level HDP member.
Conclusion
[31] The Applicant has met his onus of showing that the Decision is unreasonable and procedurally unfair. Therefore, this application is granted.
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