Docket: IMM-5114-24
Citation: 2025 FC 569
Toronto, Ontario, March 28, 2025
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
ESRA BILEN |
Applicant |
and |
MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] As I indicated at the end of the hearing into this matter, I will grant this application for judicial review. My reasons follow.
II. BACKGROUND
A. Facts
[2] The Applicant, Esra Bilen, is a citizen of Turkey. She is a bisexual woman, and asserts a well-founded fear of persecution at the hands of her father and his relatives, as well as from Turkish society at large, on account of her sexual orientation.
[3] The Applicant was raised in a strict Muslim household in which same-sex relationships were seen as a sin. Nevertheless, Ms. Bilen realized she was attracted to women as a teenager. While in university, she began a romantic and sexual relationship with a woman in her class, TK. They kept their relationship secret from the Applicant’s conservative family, particularly her father and her three uncles.
[4] In 2016, the Applicant and TK travelled to Canada on study permits, and were able to be open about their relationship for the first time. Soon after arriving in Canada, the couple became friends with another woman named TB. TK was unable to renew her study permit and returned to Turkey in 2017. Ms. Bilen, on the other hand, was able to renew her student visa and remained in Canada. Some months later, she began a sexual relationship with TB.
[5] By November 2017, TB was pressuring the Applicant to end her relationship with TK, who was now back in Turkey. This led to a fight between TB and Ms. Bilen. In retaliation, TB sent intimate photos of the two to TK. TK, in turn, sent the photos to Ms. Bilen’s father and her three uncles.
[6] As a result, the Applicant’s father threatened that if he saw her again, he and her uncles would “shoot bullets like rain to kill you.”
[7] Ms. Bilen’s mother later called and warned her that if she returned to Turkey, her father would kill her, and that he had asked his friend, Sinan Camuroglu (then a security chief in Istanbul) to find her if she returned.
[8] As a result, the Applicant made a claim for refugee protection in August 2018. However, her claim was not heard for almost four years, and so she withdrew it in June 2022. In November 2022, the Applicant married her spouse in Canada, a bisexual man named DC.
[9] On June 30, 2023, the Applicant was called to an appointment with the Canadian Border Services Agency, and was served with a Pre-Removal Risk Assessment [PRRA]. This was her first evaluation of risk, and it is this decision that is the subject of this application for judicial review.
B. Decision under Review
[10] A PRRA Officer refused the Applicant’s PRRA on January 29, 2024. The Officer accepted her sexual orientation as a bisexual woman, but found that, “the applicant submitted insufficient evidence to demonstrate that, on a balance of probabilities, she faces a forward looking risk of persecution or risk to life from her father.”
In coming to that conclusion, the Officer found that Ms. Bilen submitted little evidence to demonstrate that her father has the ability or the influence to track and find her if she returned to Turkey. The Officer further found that the Applicant had failed to establish that Ms. Bilen is “somehow dependent”
or unable to return to Türkiye without alerting her family, and further failed to demonstrate her father’s relationship with the security chief of Istanbul, and what kind of power this alleged friend possesses.
[11] Further, the Officer found that the Applicant “submitted insufficient evidence to demonstrate that she faces a forward-looking risk of persecution as a sexual minority in Turkiye.”
This conclusion was based on a review of general country condition reports and articles submitted by the Applicant, as well as the PRRA Officer’s own independent research. The Officer concluded that while LGBTI individuals still experience discrimination from society and the state, there is increased public support for sexual minorities and that many live openly and safely in wealthier neighbourhoods in major cities. Therefore, the Officer reasoned, any possible discrimination that the Applicant may experience does not rise to the level of persecution.
III. ISSUES and STANDARD OF REVIEW
[12] The Applicant challenges both the reasonableness and the procedural fairness of the decision.
[13] First, the Applicant submits that the Officer erred in finding that she would not face serious risk from her father in Turkey, as the Officer perversely (if perhaps unwittingly) applied the logic of an internal flight alternative [IFA] to the determination, while alluding to locations within Istanbul (her home city) where she could potentially relocate. She also argues that, in functionally applying the IFA test without specifying a specific IFA location and giving her a chance to respond, the Officer breached her right to procedural fairness.
[14] The Applicant also submits that the Officer erred in relying on older documentation to conclude that she would not face a serious possibility of persecution in Turkish society, while ignoring more recent country conditions evidence that ran contrary to this conclusion.
[15] On issues relating to procedural fairness, the reviewing court must conduct its own analysis of the process followed by the decision-maker to determine whether the process was fair: Bharadwaj v Canada (Citizenship and Immigration), 2022 FC 1362 at para 8. This approach to review is functionally the same as applying the correctness standard: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 (CanLII), [2019] 1 FCR 121 at paras 49-56; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35.
[16] On the merits of the decision, the applicable standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23 [Vavilov]. In conducting a reasonableness review, a court “must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”
(Vavilov at para 15). It is a deferential standard, but remains a robust form of review and is not a “rubber-stamping”
process or a means of sheltering administrative decision-makers from accountability (Vavilov at para 13).
[17] The rights at stake in PRRA decisions are at the highest end of the spectrum, as they routinely involve allegations of risk to the most basic of human rights, as codified in both domestic law and international instruments to which Canada is signatory. In Vavilov, the Supreme Court noted that the reasons provided in support of a decision must reflect the stakes of the proceedings: Vavilov at para 133. This is particularly apparent where the decision under review is the first or only assessment of the applicant’s risk.
IV. ANALYSIS
A. The PRRA Officer engaged in a veiled IFA finding
[18] The Applicant is originally from Istanbul, which is where her parents continue to reside. In finding that she is not at risk in Türkiye, the PRRA Officer did not question that the Applicant’s father would be motivated to harm her, but stated the following:
I note that the Applicant submitted little evidence to demonstrate that her father has the ability or the influence to track and find her if she returned to Türkiye. There is also little evidence that the applicant is somehow dependent or through other reasons is unable to return to Türkiye without alerting her family.
[19] The Applicant argues that this part of the Officer’s decision employs the language and logic of an IFA finding, without incorporating the necessary conceptual and procedural framework associated with an IFA analysis. By contrast, the Respondent argues that the Officer clearly did not conduct an IFA analysis, because there is no articulation of the IFA test, and no consideration of the two-step analysis associated with IFA findings. Rather, the Respondent argues that the above paragraph merely represents a conclusion that the Applicant failed to establish that she would be at risk if returned to Türkiye. I agree with the Applicant.
[20] For the sake of the discussion, I am prepared to accept that the above passage is amenable to two interpretations. This ambiguity is its first problem. The second problem is that, on either interpretation, it reveals a fundamental flaw in the Officer’s analysis. Either the paragraph does represent a backdoor IFA finding, and therefore reveals a procedurally unfair approach, or it was not an IFA finding, in which case it lacks transparency and justification, and is therefore unreasonable.
[21] This having been said, and having reviewed the position of the parties, I am convinced that the impugned passage does amount to a disguised (and perhaps unconscious) IFA finding. The statement that the Applicant had not established that her father would be able to “track and find her if she returned to Türkiye”
employs language that, in the specialized context of Canadian refugee determination, clearly connotes an IFA analysis. It implicitly accepts that the father would target the Applicant, but concludes that he would not be able to find her in Türkiye. To the extent that this does constitute an IFA finding, it was therefore procedurally unfair: Kuka v Canada (MCI), 2024 FC 209 at paras 39-42.
[22] As the Applicant points out, the jurisprudence of this Court is clear that procedural fairness requires decision-makers who intend to rely on an IFA analysis to: i) disclose a specific IFA location to the applicant; and ii) provide them with an opportunity to respond. The jurisprudence is similarly clear that a proper IFA analysis involves two steps: first, the decision-maker must consider the risks to the Applicant in the IFA location; and second, the decision-maker must consider whether it would be unreasonable for the individual to seek refuge in the IFA location, considering all of their particular circumstances: Rasaratnam v Canada (Minister of Employment and Immigration) (C.A.), 1991 CanLII 13517 (FCA), [1992] 1 FC 706.
[23] Respectfully, on this point, I reject the Respondent’s suggestion that the above passage does not amount to an IFA finding because the Officer did not articulate these jurisprudential requirements. Such an interpretation would elevate form over substance. And if, functionally, the impugned passage does amount to an IFA finding, the failure to identify an IFA location or consider the two-prong IFA test is an indictment rather than an absolution of the Officer’s approach.
[24] I also accept the Applicant’s alternative argument, which is that, if the impugned passage is not an IFA finding, then it necessarily amounts to a finding that the Applicant could return to Istanbul and avoid any risks associated with her father. If this was the finding, it was incumbent on the Officer to clearly set this out and justify it in light of the facts and evidence. For example, as the Applicant points out, the documentary evidence suggests that sexual minorities in Türkiye may avoid persecution by living in the more affluent neighbourhoods of Istanbul. Leaving aside the question of whether the Applicant could afford to relocate to a wealthy Istanbul neighbourhood, this fact calls into question whether she could live openly in Istanbul without a well-founded fear of coming across her influential father at some point.
[25] As a result of the above, I have concluded that, on any interpretation of the Officer’s reasons related to the Applicant’s father, the decision cannot be sustained.
B. The PRRA Failed to Consider the Most Recent Documentary Evidence
[26] While the above finding is dispositive of this matter, I will briefly add that I also agree with the Applicant that it was incumbent on the PRRA Officer to consider the most recent country conditions evidence, precisely because this evidence appears to suggest a deterioration in human rights protections for sexual minorities in Türkiye in recent years.
V. CONCLUSION
[27] For the above reasons, this application for judicial review will be granted. The parties did not propose a question for certification and I agree that none arises.
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