Date: 20000920
Docket: IMM-1256-99
B E T W E E N:
MURTAZA OZDEMIR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] Mr. Murtaza Ozdemir ("the Applicant") applies for judicial review of a decision made by one R. Klagsburn, Post Claim Determination Officer ("PCDO") dated January 24, 1999. As a result of that decision, Mr. Ozdemir was found not to be a member of the Post Determination Refugee Claimants in Canada Class ("PDRCC").
[2] The Applicant is a Turkish citizen and more specifically, he is a Turkish Kurd and a member of the Alevi religion.
[3] The Applicant arrived in Canada on December 1, 1995 and applied for admission as a Convention Refugee. Following a hearing before the Convention Refugee Determination Division ("the CRDD"), the Applicant was found not to be a Convention Refugee. This conclusion was based on the credibility of the Applicant in making a claim of fear of persecution in his country of nationality.
[4] The Applicant then sought the benefit of a post determination refugee review pursuant to the Immigration Regulations, 1978, s.11.4. The purpose of that review was to determine whether he would be subjected to a risk as defined in the definition of a member of the Post Determination Refugee Claimants in Canada class ("PDRCC"), that is whether he would be subjected to an objectively identifiable risk of extreme sanctions or inhumane treatment which would apply in every part of his country of origin and which would not be faced generally by other individuals in or from that country.
[5] Written submissions on behalf of the Applicant were submitted to the PCDO by his counsel on April 14, 1997 and May 7, 1997. The submissions included evidence which was not previously available and which was not before the CRDD. This new evidence consisted of documentary evidence relating to alleged police inquiries about the Applicant directed to his wife in Turkey, as well as extracts from certain Turkish newspapers. These materials were submitted for the purpose of showing that the police authorities in Turkey were still interested in the whereabouts and activities of the Applicant.
[6] The PCDO rendered a written decision on February 24, 1999 in he reached the following conclusion:
I do not see a reasonable possibility that the applicant would be at risk should he be removed to Turkey. The applicant is not a member of PDRCC.
[7] The Applicant submits that the decision of the PCDO is wrong. The Applicant raised several issues upon the hearing of this application for judicial review. These issues were stated by counsel for the Applicant exactly as follows in the Applicant's Memoranda of Fact and Law:
| 1. Did the Immigration Officer ignore relevant evidence properly before it? |
| 2. Did the Tribunal fetter in law because of it considered documentary evidence that was relevant and which bolstered the decision without giving the applicant an opportunity to respond? |
| 3. What is the standard of review? |
| 4. Was the decision of the Immigration Officer made without regard to the totality of the evidence? |
| 5. Was the decision reasonable in light of the evidence for the Tribunal? |
| 6. Were the principles of fairness breached by the conduct of the Officer in this case? |
| 7. What are the requirements of the principles of fundamental or natural justice in this process? |
[8] I note that while the Applicant has raised several issues, many of these are variations upon three issues, that is, the process which was followed by the PCDO, the manner in which the PCDO treated the documentary evidence submitted by the Applicant and reliance by the PCDO upon documentary evidence without giving the Applicant an opportunity to respond to that evidence.
[9] I will address the latter point first. The Applicant submits that he should have been given the opportunity to comment upon the Department of State Reports which were considered by the PCDO in reaching his conclusion.
[10] In my opinion, this submission is not well founded, having regard to the decision of the Federal Court of Appeal in Mancia v. Canada (Minister of Citizenship & Immigration), 45 Imm. L.R. (2d) 131.
[11] In Mancia, supra, the Federal Court of Appeal held that when a PCDO relies upon documents available from public sources in relation to general country conditions which became available after an Applicant filed his submissions, fairness requires disclosure by the PCDO when the documents are novel and significant and where they show changes in the general country condition which may affect the decision.
[12] There was nothing in the record here to show that the documents relied upon by the PCDO, concerning country conditions in Turkey, contained information which was novel and significant. The rationale in Mancia, supra, was followed by the Federal Court of Appeal Dervishi, v. Canada (Minister of Citizenship & Immigration) (1999), 236 N.R. 375 (F.C.A.).
[13] I turn now to the issues raised about fairness of the process followed by the PCDO and his treatment of the documentary evidence submitted by the Applicant. An examination of these questions requires consideration of the standard of review applicable to a decision of a PCDO.
[14] In Sokhan v. Canada (Minister of Citizenship & Immigration), [1997] F.C.J. No. 958, Court File No. Imm-3067-96, Mr. Justice Joyal made this comment about the applicable standard of review:
For purposes of judicial review of PDRCC decisions, the standard of review imposed is very high. Since the post determination review officer's decision to recommend an individual as being eligible for the PDRCC class does not confer on the individual a right but rather a special status or a privilege, the courts are reluctant to intervene in these discretionary decisions unless the discretion was used in an abusive fashion. In Moskvitchev v. Canada (Minister of Citizenship & Immigration) [See Note 3 below], the Court noted that the discretion to determine whether a person is a member of the class or not, is subject to judicial review if the officer exercises his discretion pursuant to improper purposes, irrelevant considerations, with bad faith, or in a patently unreasonable manner. In light of this high threshold, it appears that the circumstances of this case do not warrant the Court's intervention. There is nothing that indicates that the officer exercised his discretion in an unlawful way. He appears to have carefully considered the evidence before him.
Note 3: (December 21, 1995), Doc. IMM-70-95 (Fed. T.D.) [hereinafter Moskvitchev]; see also Gharib v. Canada (Minister of Citizenship & Immigration) (1995), 30 Imm. L.R. (2d) 291, 99 F.T.R. 208.
[15] This is the standard by which the decision of the PCDO in this case is to be considered. On the basis of my review of that decision, it appears that the PCDO committed no reviewable error.
[16] His task was to conduct a risk assessment for the Applicant should he be returned to Turkey. The PCDO identified the sources which he consulted in reaching his decision, including the decision of the CRDD. He noted that the CRDD found a lack of credibility on the part of the Applicant. Furthermore, the PCDO found that the Applicant had not established a credible link between his particular personal situation and the country condition to sustain the conclusion that he would be subjected to a risk, as contemplated by the PDRCC definition, if he were removed to Turkey. The PCDO noted that, among other sources he consulted the submissions of counsel and the documentary material attached to those submissions. As part of his risk analysis, the PCDO made the following comment about these submissions:
Submissions do not satisfactorily alleviate the concerns and issues raised by the CRDD panel. Setting aside the issue of credibility, I still do not find the Applicant would be at risk upon return to Turkey.
[17] I see no error in this statement by the PCDO. I refer again to the words of Mr. Justice Joyal in Sokhan, supra at paragraph 21:
... The officer is entitled to refer to the evidence and to the findings of the Refugee Board in order to better define the weight to be given to the applicant's assertions. On that basis, the officer makes his judgment call. That is what he is appointed to do.
[18] I likewise adopt this approach. In the absence of any evidence that the PCDO misdirected himself or considered extraneous and irrelevant matters, or evidence of any other reviewable error, I find that there is no basis for intervening in the decision made by the PCDO in this case.
O R D E R
[19] The application for judicial review is dismissed.
[20] Upon the conclusion of the hearing, counsel for the Applicant submitted a possible question for certification which I have redrafted as follows:
Should a PCDO be required to comment on case specific documents or documents which are specific to the applicant in making his or her decision?
| Judge |
OTTAWA, Ontario
September 20, 2000