Halifax, Nova Scotia, November 24, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act S.C. 2001, c. 27 (IRPA) for judicial review of the decision of an immigration officer dated January 20, 2006, rejecting the applicant’s pre-removal risk assessment application (PRRA).
[2] The applicant seeks an order setting aside the decision of the immigration officer and referring the matter for re-determination by a different officer.
Background
[3] The applicant, Mehmet Ugurlu, is a citizen of Turkey. Prior to his arrival in Canada, the applicant lived in the United States for two years but did not make an asylum claim while living there. The applicant came to Canada in August 2003 and claimed refugee protection, alleging persecution on the basis of his Kurdish ethnicity, political views and membership in a particular social group, namely, individuals targeted by the Turkish mafia. On October 21, 2003, the applicant’s refugee claim was declared abandoned due to his failure to complete a Personal Information Form (PIF) in time. Leave was twice denied for this decision.
[4] On December 16, 2005, the applicant met voluntarily with Citizenship and Immigration Canada (CIC) officials. During this meeting, he was asked whether he feared returning to Turkey. The applicant indicated that he did fear returning to Turkey and was immediately declared a flight risk. He was detained from December 16, 2005, until late January 2006. The applicant eventually filed a PRRA application in January 2006, in which he submitted that he faced a personal risk of persecution in Turkey based upon his Kurdish ethnicity, perceived political views, status as an asylum seeker and because he was targeted by the mafia. The applicant submitted that his detainment prevented him from obtaining documentary evidence in support of his claim.
[5] On January 20, 2006, the PRRA application was rejected on the basis that effective state protection existed in Turkey and that the applicant would therefore not be subject to persecution if deported. It was also found that the applicant would not be at risk of loss of life, torture or cruel and unusual punishment if returned to Turkey. The applicant received the PRRA decision on January 23, 2006. On January 24, 2006, the applicant was notified that he would be deported the next morning. The applicant brought an emergency motion to stay the removal order and a temporary stay was granted. On January 30, 2006, the Court ordered that the removal order be stayed pending the outcome of the applicant’s application for judicial review of the PRRA decision. This is the judicial review of the PRRA decision.
Reasons for the Decision
[6] The officer began by stating that the applicant is an ethnic Kurd who likely faced serious discrimination during childhood, but concluded that the evidence failed to show that Kurds are currently persecuted in Turkey. In addition, there was no evidence that the applicant was perceived as hostile to the state.
[7] Next, the officer concluded that the applicant’s submissions regarding the detention of returning asylum seekers were not supported by human rights sources of adequate quality. The officer noted that the detainment of asylum seekers was an issue in the 1980s, but concluded that Turkish authorities would now consider the applicant to be an economic migrant. The officer also considered the applicant’s submissions regarding his risk of torture if returned to Turkey. He noted that the applicant’s submissions relied upon sources dating from 1997 to 2002. These sources indicated that torture was common in Turkey during the given period. The officer noted that conditions in Turkey are now different, as a result of the end of the civil war and the country’s desire to enter the European Union.
[8] The officer proceeded to consider the applicant’s claim of persecution by the Turkish mafia. The applicant’s problems with the mafia began in 1999 when his father borrowed 150 million Turkish lira and was unable to repay the debt. The applicant gave a cheque for two billion Turkish lira to the mafia members hired to collect the debt. An interest rate of ten percent per day was charged upon the original debt. The officer determined that the debt was worth $150 Canadian dollars and that the amount paid to cover it amounted to $2,000 Canadian dollars. The applicant claimed that he contacted the police and that the mafia bribed them. He claimed that he was then tortured and detained by the police for three days, while they made references to his Kurdish ethnicity.
[9] The applicant left Turkey following this incident and lived in the United States for two years. The applicant stated that while living there, he received threatening phone calls from the Turkish mafia indicating that they would kill his family if he did not give them more money. The applicant stated that he came to Canada because he had lost his chance to claim asylum in the United States. The applicant submitted that he was charged with failure to repay his debt and was wanted by the Turkish police. The officer noted his consideration of a document which indicated that the applicant was wanted by the police, in addition to other supporting documentation regarding this matter.
[10] The officer indicated that the main issue to be determined was whether the Turkish state was so ridden by crime that effective state protection was impossible. The officer reviewed the applicant’s evidence and accepted that the situation in Turkey in the mid-1990s was characterized by government corruption and that it was likely that there was no effective state protection from the mafia at the time. However, the officer found that this lack of state protection did not persist. His research indicated that although organized crime and official corruption still existed in Turkey, it did not do so with impunity, nor to the extent that the state was dominated by criminals. The officer accepted the applicant’s evidence of victimization by extortionists who paid off the police, but found no evidence that effective state protection was no longer available. Instead, the evidence indicated that effective state protection would be available in Turkey today. The officer noted that Turkey is a democratic state which has made strides in human rights and in retraining its security services.
[11] The officer concluded that the applicant had failed to demonstrate that Turkey could not provide state protection, and as such did not meet the definition of a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of IRPA. The officer held that there was no reasonable chance or serious possibility that the applicant would be persecuted in Turkey, or was at risk of loss of life, cruel or unusual punishment or torture.
Issues
[12] The applicant submitted the following issues for consideration:
1. Did the officer err in law by failing to give any weight to documentary evidence that supported the applicant’s claim while failing to refer to specific documentary evidence that discredited the applicant’s claim?
2. Did the officer err in law by ignoring relevant evidence that supported the applicant’s claim and contradicted the officer’s determination?
Applicant’s Submissions
[13] The applicant submitted that the officer had an obligation to cite up-to-date evidence after disregarding the applicant’s documentary evidence (see Tekie v. Canada (Minister of Citizenship & Immigration), 2005 FC 27). It was submitted that the officer made several patently unreasonable findings by ignoring or attributing little weight to the applicant’s documentary evidence without seeking contradictory evidence upon which to base his opinion (see Miral v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 254 (QL)). In particular:
1. The officer accepted documentary evidence showing that torture was common in prisons but had no evidentiary basis for finding that conditions in the country had changed. Evidence that Kurdish prisoners were treated more harshly was also ignored.
2. The officer discredited documentary evidence regarding the treatment of returned asylum seekers without citing contradictory evidence.
3. The officer accepted that the applicant was victimized by the mafia but reached an unsupported conclusion which was directly contradicted by the documentary evidence when he stated that official corruption and organized crime exist but do not dominate the state.
4. Official documents proved that the applicant was beaten, hospitalized, complained to the police, is wanted by the police, and will be detained if returned to the country. The officer’s determination was contradicted by these documents and he failed to provide reasons why they did not carry weight.
5. The officer’s determination that the applicant should seek protection from the very individuals he fears (the police) demonstrates a misunderstanding of his claim. The applicant submitted that the officer must state why he found the documents establishing his fear of the police lacked credibility or why he preferred contradictory evidence. The officer appeared to completely ignore the evidence submitted regarding the applicant’s fear of the police (see Madelat v. Canada (Minister of Employment and Immigration) (1991), 179 N.R. 94 (F.C.A)).
[14] The applicant submitted that the officer erred in determining the amount in Canadian dollars of the debt and cheque given to the mafia. The debt was in fact worth $546.65 and the cheque was in the amount of $7,288.74. The applicant submitted that the officer negligently relied on false information in rejecting the applicant’s claim and that he may not have reached the same decision if faced with the correct figures.
[15] The applicant noted that he was detained at the time of his PRRA and was not given the opportunity to retrieve documentary evidence in support of his claim. It was submitted that the officer should, in the interest of justice, have made inquiries into this information and provided additional time for the applicant to procure it.
[16] The applicant submitted that he was not given adequate opportunity to present his refugee and PRRA claims and that this issue was ignored by the officer. The applicant submitted that under subsection 113(b) of IRPA, the officer should have exercised his discretion and held a hearing. Section 167 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations) sets out the factors to be taken into consideration when determining whether a hearing is required. The applicant submitted that a hearing should have taken place if the officer had concerns regarding the evidence submitted to prove the legitimacy of his fear. It was submitted that the officer ignored this evidence and that this was a patently unreasonable error in law.
[17] The applicant submitted that it would be a violation of the principles of fairness and fundamental justice if an officer were to make an adverse credibility finding against an applicant without a hearing (see Kaberuka v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 252). The applicant also submitted that the officer made an implied adverse credibility finding.
Respondent’s Submissions
[18] The respondent submitted that the standard of review applicable to the officer’s PRRA decision is patent unreasonableness. The respondent submitted that the Court should not re-weigh the evidence placed before the officer, as a high level of deference should be given to a PRRA officer’s conclusions regarding country conditions. The respondent submitted that the applicant failed to demonstrate that the officer’s assessment of his risk or state protection findings were patently unreasonable (see Kim v. Canada (Minister of Citizenship and Immigration), 2005 FC 437 at paragraph 19).
[19] The respondent stated that an officer’s principal objective when considering a PRRA application is to assess the weight of the evidence. It was submitted that the officer reviewed all of the applicant’s evidence and gave detailed reasons for declining to attribute significant weight to it. The respondent submitted that the decision does not disclose reviewable errors. It was submitted that the applicant’s arguments amount to a general objection about the manner in which the officer weighed the evidence. (see Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3).
[20] The respondent submitted that the allegation that the officer’s failed to refer to relevant evidence was unfounded. The respondent submitted that the officer summarized the documents and gave specific reasons why less weight was attributed to them. For example, the officer found that: (1) certain documents were not supported by good quality human rights sources; (2) the applicant’s situation would be seen as a case of economic migration by Turkish authorities; and, (3) evidence referring to the situation in Albania and press law was not relevant.
[21] The respondent submitted that the officer conducted his own research which revealed that criminal organizations no longer act with impunity and do not dominate the Turkish state. The respondent submitted that there was no proof that the officer failed to consider all of the evidence. The respondent maintained that it is settled law that an officer is presumed to have considered all of the evidence unless it can be shown otherwise. It was submitted that the assessment and weight to be given to the evidence is a matter within the officer’s discretion and expertise (see Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)). The respondent submitted that the applicant failed to demonstrate that the officer refused to consider evidence, ignored evidence or made an erroneous finding with respect to evidence.
[22] The respondent submitted that the PRRA application was not the applicant’s only opportunity to present his refugee claim in Canada. The applicant’s refugee claim was declared abandoned in October 2003 and leave for the decision was twice denied. The respondent submitted that the applicant had ample opportunity to present his claim (see El Jarjouhi v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 466 (QL)). The respondent submitted that the onus was on the applicant to establish his claim. It was submitted that the applicant’s statement that his detention prevented him from retrieving evidence should be ignored since his PRRA submissions were prepared with the assistance of counsel and nothing impeded counsel from gathering and submitting new evidence on his client’s behalf.
[23] The respondent submitted that the officer was not required to hold a hearing pursuant to subsection 113(b) of IRPA because no finding of credibility was made, whether implied or otherwise.
Analysis
Standard of Review
[24] An immigration officer’s decision on a PRRA application, considered globally and as a whole, is reviewable on a standard of reasonableness simpliciter. Particular findings of fact, however, are reviewable on a standard of patent unreasonableness.
[25] I wish to first deal with Issue 2.
[26] Issue 2
Did the officer err in law by ignoring relevant evidence that supported the applicant’s claim and contradicted the officer’s determination?
While the officer addressed the issue of state protection from the mafia, I find it problematic that the officer failed to consider the applicant’s claim that he feared persecution by the police, as agents of the state. The applicant provided evidence that the police had tortured him and had a warrant for his arrest. In effect, the applicant fears the very state which the officer found could protect him. The applicant explained his fear of the police in the following portion of his PIF narrative:
Unfortunately, my father went bankrupt and he was unable to honour the certificate. The company, to which the money was owed, hired the mafia to go after my father. In order to protect him, I issued a cheque to the mafia for 2 billion lira. They also demanded ten percent per day.
The same day, neighbour went to the police to make a denunciation. 13 of the mafia members were caught and placed in a line up for me to recognize. I recognized them. Two members of my staff were also able to recognize them in the line up.
However, these Mafia members bribed the police chief. The police received the bribe in front of me. The money was paid to torture me. I was kept three days and two nights. As they tortured me, the police made references to my Kurdish ethnicity. The police warned me not to complain against them. I was asked to sign a document and I was told not to seek medical attention.
I wrote a letter to the Minister of Justice and to the President of Turkey, exposing my case against the police and the mafia. Since then, the police was after me, as well as the mafia, who were also demanding money from me.
(Emphasis added)
(Tribunal record at page 40)
[27] In addition to this statement, the applicant provided the officer with documents showing that he had filed a complaint against the police and sought medical treatment after being beaten by them. The officer summarized the applicant’s submission regarding these events by stating the following:
That same day a neighbour went to the police to denounce the criminals, who he could identify, as could Mr. Ugurlu and two of his employees. The police lined up 13 of the 15 men who had come to his premises, and he and his staff were able to pick them out. However, the criminals bribed the police right in front of him and Mr. Ugurlu was detained and held for three days and two nights, during which time he was tortured, the police making references to his Kurdish ethnicity.
[28] The officer’s reasons for dismissing the applicant’s fear of torture read as follows:
Evidence related to torture:
NOTE: This part of Counsel’s submission letter is in the form of an essay, with footnotes. The supporting documents are appended. However I note that his submission was written on January 2006 but the sources used are dated from 1998, 2000, and 2002. Current conditions in Turkey are quite different, not merely in politics or law, but in actual implementation, probably as the result of the civil war having ended and of Turkey’s desire to enter the E.U. S.M.
Submission evidence on torture for period documented, 1997 to 2002, showed that torture was all too common, that its victims rarely lodged complaints, and that in the cases brought, only a fraction were prosecuted.
[29] The officer’s analysis of state protection consisted of the following:
My own research showed that the high level criminals did not enjoy impunity, that the war in the Southeast did not continue, and that the “idealists” of the Grey Wolves have come to be seen as a threat. Organized crime and official corruption no doubt continue, but not with impunity, and not the extent that the state is dominated or threatened. Even Alaattin Cakici was captured and imprisoned.
Therefore, while I accept that Mr. Ugurlu might well have been the victim of extortionists, who could and did pay off local police, there is not evidence that effective state protection would not have been available to him at the time; and there is evidence that effective state protection would be available to him now. Turkey, for all its failings as a state, remains democratic, has made tremendous strides in human rights reforms and in the retraining of its security services.
(Emphasis added)
(Tribunal record at pages 26 and 27)
[30] The officer’s research regarding state protection mainly addresses the fact that high level criminals have been jailed in Turkey. The research does not address the applicant’s concern that he risks persecution at the hands of the state itself.
[31] The officer reproduced the following portion of the U.S. Department of State 2004 Country Report on Human Rights Practices in Turkey as part of his research, but did not refer to it in his reasons (Tribunal record at page 20):
C. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution prohibits such practices; however, members of the security forces continued to torture, beat and otherwise abuse persons regularly, particularly in the southeast. Security forces most commonly tortured leftists and Kurdish rights activists.
According to the HRF [the Human Rights Foundation] there were 918 credible cases of torture and mistreatment reported at its 5 national treatment centers during the year. Human rights advocates claimed that hundreds of detainees were tortured during the year in the southeast, where the problem was particularly serious, but that only a small percentage of detainees reported torture and ill-treatment because they feared retaliation or believed that complaining was futile.
During the year, senior HRF and HRA officials stated that there had not been a significant change in the frequency of torture over previous years. However, officials at a number of HRA branch offices, including in the southeast, said they had observed a decline in the practice. A number of attorneys in the southeast and other regions also reported that torture and ill treatment had become significantly less common. Observers reported that police demonstrated greater restraint in their treatment of detainees and protestors during the year due to legal reforms and government directives.
[32] Justice Evans stated the following regarding the consideration of contradictory evidence by administrative agencies in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), at paragraphs 16 and 17:
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Minister of Employment and Immigration (1990), 120 N.R. 395; 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Minister of Employment and Immigration (1993), 63 F.T.R. 312 (T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[33] I am not satisfied that the officer addressed the applicant’s important contradictory evidence that he was tortured by the police and feared returning upon this basis. The officer also ignored the other documents produced by the applicant (see paragraph 43 of the applicant’s memorandum of argument). In addition, the officer did not address the material in the U.S. Department of State 2004 Country Report on Human Rights Practices in Turkey in his reasons. Mr. Justice Evans in Cepeda-Gutierrez stated that this type of evidence must be addressed by the Board. It was relevant to the applicant’s fear of persecution and the availability of state protection. The officer stated that there was “not evidence that state protection would not have been available to him at the time and there is evidence that state protection would be available to him now.” This statement does not adequately address the applicant’s claim that he had been tortured by the police and feared returning upon this basis.
[34] I am of the view that because the evidence which the immigration officer failed to address was important to the applicant’s claim, an erroneous finding of fact was made “without regard to the evidence”. The officer made a patently unreasonable error and the application for judicial review must be allowed and the matter referred to a different officer for re-determination.
[35] Because of my finding on Issue 2, I need not deal with the other issue.
[36] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[37] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different officer for re-determination.
ANNEX
Relevant Statutory Provisions
The relevant provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 are as follows:
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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.
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.
(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.
112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).
(2) Despite subsection (1), a person may not apply for protection if
(a) they are the subject of an authority to proceed issued under section 15 of the Extradition Act;
(b) they have made a claim to refugee protection that has been determined under paragraph 101(1)(e) to be ineligible;
(c) in the case of a person who has not left Canada since the application for protection was rejected, the prescribed period has not expired; or
(d) in the case of a person who has left Canada since the removal order came into force, less than six months have passed since they left Canada after their claim to refugee protection was determined to be ineligible, abandoned, withdrawn or rejected, or their application for protection was rejected.
(3) Refugee protection may not result from an application for protection if the person
(a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality;
(b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years;
(c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or
(d) is named in a certificate referred to in subsection 77(1).
113. Consideration of an application for protection shall be as follows:
(a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection;
(b) a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required;
(c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98;
(d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and
(i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or
(ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada.
114. (1) A decision to allow the application for protection has
(a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and
(b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection.
(2) If the Minister is of the opinion that the circumstances surrounding a stay of the enforcement of a removal order have changed, the Minister may re-examine, in accordance with paragraph 113(d) and the regulations, the grounds on which the application was allowed and may cancel the stay.
(3) If the Minister is of the opinion that a decision to allow an application for protection was obtained as a result of directly or indirectly misrepresenting or withholding material facts on a relevant matter, the Minister may vacate the decision.
(4) If a decision is vacated under subsection (3), it is nullified and the application for protection is deemed to have been rejected.
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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.
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.
(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. 112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).
(2) Elle n’est pas admise à demander la protection dans les cas suivants:
a) elle est visée par un arrêté introductif d’instance pris au titre de l’article 15 de la Loi sur l’extradition;
b) sa demande d’asile a été jugée irrecevable au titre de l’alinéa 101(1)e);
c) si elle n’a pas quitté le Canada après le rejet de sa demande de protection, le délai prévu par règlement n’a pas expiré;
d) dans le cas contraire, six mois ne se sont pas écoulés depuis son départ consécutif soit au rejet de sa demande d’asile ou de protection, soit à un prononcé d’irrecevabilité, de désistement ou de retrait de sa demande d’asile.
(3) L’asile ne peut être conféré au demandeur dans les cas suivants:
a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée;
b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans;
c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés;
d) il est nommé au certificat visé au paragraphe 77(1).
113. Il est disposé de la demande comme il suit:
a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;
b) une audience peut être tenue si le ministre l’estime requis compte tenu des facteurs réglementaires;
c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98;
d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part:
(i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada,
(ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada.
114. (1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant.
(2) Le ministre peut révoquer le sursis s’il estime, après examen, sur la base de l’alinéa 113d) et conformément aux règlements, des motifs qui l’ont justifié, que les circonstances l’ayant amené ont changé.
(3) Le ministre peut annuler la décision ayant accordé la demande de protection s’il estime qu’elle découle de présentations erronées sur un fait important quant à un objet pertinent, ou de réticence sur ce fait.
(4) La décision portant annulation emporte nullité de la décision initiale et la demande de protection est réputée avoir été rejetée.
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The relevant provisions of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 state:
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167. 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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167. 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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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-374-06
STYLE OF CAUSE: MEHMET UGURLU
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 31, 2006
APPEARANCES:
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Alex Billingsley
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Leanne Briscoe
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SOLICITORS OF RECORD:
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Alex Billingsley Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General
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