2018 FC, 2018 FC 1159

Date: 20181116 Docket: IMM-4747-17 Citation: 2018 FC 1159 Ottawa, Ontario, November 16, 2018 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:SEREF ALKAN ALTUGHAN KEMAL ALKANApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Seref Alkan (the “Principal Applicant”) and his son Mr. Altughan Kemal Alkan (collectively, “the Applicants”) seek judicialreview of the decision of the Immigration and Refugee Board, Refugee Appeal Division (the “RAD”) confirming a decision of theImmigration Refugee Board, Refugee Protection Division (the “RPD”) , that the Applicants are not Convention refugees nor persons inneed of protection pursuant to

section 96 and subsection 97(1), respectively, of the Immigration and Refugee Protection Act, S.C. 2001,c. 27 (the “Act”). [2] The Applicants are citizens of Turkey. The Principal Applicant claims to be at risk on grounds of political opinion, nationality andreligion.

His son claims to be at risk on the grounds of political opinion, membership in a particular social group, nationality andreligious affiliation, that is as an Alevi. [3] The RPD found that the Applicants lacked credibility and failed to produce sufficient evidence to support their claims of risk on thegrounds of political opinion, ethnicity and religion. The RAD confirmed these findings in dismissing the Applicants’ appeal. [4] In this application for judicial review, the Applicants present several arguments.

They argue that the RAD unreasonably failed toaddress the allegations of incompetence raised against the Counsel who represented them before the RPD.

They submit that the RADerred in law by failing to conduct an independent analysis pursuant to subsection 97(1) of the Act relative to the son’s claim of risk forevading mandatory military service. [5] Finally, the Applicants submit that the RAD erred in law by confusing the identity of the Principal Applicant and his son whenaddressing the issue of who suffered from asthma, thereby negatively impacting the manner in which it considered the evidence from thetwo Applicants and the conclusions which it drew. [6] The Minister of Citizenship and Immigration (the “Respondent”) submits that the RAD reasonably dismissed the appeal and thatthere are no grounds for judicial intervention. [7] Generally, the appropriate standard of review for this Court when reviewing a decision of the RAD is reasonableness; see thedecision in Canada (Minister of Citizenship and Immigration) v.

Huruglica (2016), 2016 FCA 93 , 396 D.L.R. (4th) 527(F.C.

A) at paragraph 35. Accordingly, the Court should not interfere if the RAD’s decision is intelligible, transparent, justifiable, andfalls within a range of outcomes that are defensible in respect of the facts and the law; see the decision in Dunsmuir v. New Brunswick,2008 SCC 9 , [2008] 1 S.C.R. 190 at paragraph 47. [8] It is not necessary for me to address all the arguments raised by the Applicants since I am satisfied that the RAD committedreviewable errors in respect of each Applicant.

I will first address the apparent error relative to the Principal Applicant. [9] I am satisfied that the RAD erred as a result of confusing the identities of the Applicants. [10] The RAD referred to the Principal Applicant as suffering from asthma when the evidence before it was to the effect that the son isafflicted with this condition. [11] The Respondent submits that this is a minor error on the part of the RAD. [12] I disagree. [13] This health condition is relevant to the grounds asserted by the son, for protection.

As such, it is an important fact to be consideredby the RAD in assessing the claim. [14] This misapprehension of the evidence raises concerns about other ways in which the RAD may have confused the identities andclaims of each Applicant. This possibility undermines the overall reasonableness of the RAD’s decision. [15] In my opinion, this error is sufficient to allow judicial intervention in respect of the claim of the Principal Applicant. [16] I am also satisfied that the RAD committed a reviewable error by failing to conduct an analysis pursuant to subsection 97(1) of the

Act, specifically in respect of prison conditions which is an aspect of the fear raised by the son. [17] According to the decision in Paramananthalingam v. Canada (Citizenship and Immigration), 2017 FC 236 at paragraph 10, thequestion whether the RAD should have conducted an analysis pursuant to subsection 97(1) is reviewable on the standard ofreasonableness. [18] In Brovina v. Canada (Minister of Citizenship and Immigration) (2004), 2004 FC 635 , 254 F.T.R. 244 at paragraph 14,the Court said that it is a reviewable error for the RPD not to perform a

section 97 analysis when there is evidence relating to a

section 97risk that was not considered by that decision-maker pursuant to

section 96. In my opinion, the same principle applies when the RAD failsto conduct a

section 97 analysis in like circumstances. [19] In my opinion, the RAD committed an error by failing to engage in an analysis pursuant to subsection 97(1). [20] In the result, this application for judicial review will be allowed, the decision set aside and the matter remitted to a differentlyconstituted panel of the RAD for re-determination. There is no question for certification arising.

JUDGMENT in IMM-4747-17 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter remitted toa differently constituted panel of the Refugee Appeal Division for re-determination. There is no question for certification arising. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4747-17 STYLE OF CAUSE: SEREF ALKAN ALTUGHAN, KEMAL ALKAN v. THE MINISTER OFCITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, OntarioDATE OF HEARING: May 4, 2018JUDGMENT AND REASONS: HENEGHAN J.

DATED: November 16, 2018 APPEARANCES: Michael Crane For The APPLICANTBrad Bechard For The RESPONDENT SOLICITORS OF RECORD: Michael Crane Barrister and Solicitor For The APPLICANT Department of Justice Canada For The RESPONDENT