Federal Court Decisions

 

 

 

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:

 

[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:

 

 

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-1526-06

 

STYLE OF CAUSE:                          MERDAN OGUZHAN, Applicant

 

                                                            and

 

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION, Respondent

 

 

PLACE OF HEARING:                    TORONTO, ONTARIO

 

 

DATE OF HEARING:                      JANUARY 17, 2007

 

REASONS FOR JUDGMENT

  AND JUDGMENT:                        DAWSON, J.

 

DATED:                                             FEBRUARY 7, 2007

 

APPEARANCES:

 

JUDY WELIKOVITCH                                                          FOR THE APPLICANT

 

DAVID TYNDALE                                                                 FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

BARRISTER AND SOLICITOR                                            FOR THE APPLICANT

TORONTO, ONTARIO

 

JOHN H. SIMS, Q.C.                                                             FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA