SECAY SAYGILI Applicant v. THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA, 2018 FC 398

Date: 20180412 Docket: IMM-756-17 Citation: 2018 FC 398 Ottawa, Ontario, April 12, 2018 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:SECAY SAYGILIApplicantandTHE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADARespondent JUDGMENT AND REASONS [1] Mr. Secay Seygali (the “Applicant”) seeks judicial review of the decision of an Officer (the “Officer”), refusing his application forpermanent residence in Canada. [2] The Applicant, a citizen of Turkey and adherent of the Alevi faith, arrived in Canada in 2011.

He unsuccessfully sought protectionunder the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). [3] The Applicant applied for permeant residence in Canada on humanitarian and compassionate (“H&C”) grounds pursuant tosubsection 25(1) of the Act, based on his establishment in Canada and the hardship if returned to Turkey. [4] The Officer refused his application, noting credibility concerns expressed by the Immigration and Refugee Board, RefugeeProtection Division (the “Board”).

The Officer referred to the Applicant’s children in Turkey but assigned little weight to the Applicant’sevidence about his children on the grounds that they had a vested interest in the outcome of the H&C application. [5] The Officer‘s decision is reviewable on the standard of reasonableness. See the decision in Niculescu v. Canada (Minister ofCitizenship and Immigration), 2017 FC 733. According to the decision in Dunsmuir v.

New Brunswick, 2008 SCC 9 , [2008] 1S.C.R. 190, that means that the decision must be transparent, justifiable and intelligible, falling within a range of possible, acceptableoutcomes that are defensible upon the law and the facts. [6] In my opinion, the decision of the Officer does not meet this test. [7] In my opinion, the Officer unreasonably relied on the negative credibility findings of the Board. The focus of an H&C application isvery different from that of a claim for protection. [8] Likewise, the Officer unreasonably dismissed the evidence presented about the Applicant’s children.

That evidence should not havebeen discounted simply because the children have an interest in the outcome. In my opinion, such an approach ignores the teaching of theSupreme Court of Canada in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 , [2015] 3 S.C.R. 909. [9] In the result, the application for judicial review is allowed, the decision of the Officer is set aside and the matter remitted to adifferent Officer for re-determination. There is no question for certification arising.

JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Officer is set aside and thematter remitted to a different Officer for re-determination. There is no question for certification arising. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: imm-756-17STYLE OF CAUSE: SECAY SAYGILI v THE MINISTER OF IMMIGRATION, REFUGEES ANDCITIZENSHIP CANADAPLACE OF HEARING: Toronto, OntarioDATE OF HEARING: October 4, 2017 judgment and reasons: HENEGHAN J.

DATED: April 12, 2018 APPEARANCES : LORNE WALDMAN & HANNAH LINDY Toronto, Ontario For The Applicant CHRISTOPHER EZRIN Toronto, Ontario for the respondent SOLICITORS OF RECORD : WALDMAN & ASSOCIATES Barristers & Solicitors Toronto, Ontario For The Applicant ATTORNEY GENERAL OF CANADA Toronto, Ontario FOR THE RESPONDENT