A Turkish man denied refugee status in Canada a decade back because he shot two bystanders at a restaurant 18 years ago when he was aiming at his former brother-in-law has won a chance to stay in this country.
Nevzat Etik took his case to Federal Court looking for a judicial review after Canada’s Refugee Appeal Division (RAD) determined that the Refugee Protection Division (RPD) concluded correctly that “there are serious reasons to believe that he committed a serious crime and dismissed his appeal.”
Etik was convicted for “intentionally injuring two persons in a restaurant with gunfire and possessing an unlicensed firearm,” said the Federal Court decision, which notes his shooting victims survived. “He was sentenced to three and a half years’ imprisonment.”
The court heard Etik travelled through multiple countries before arriving in the U.S. in April 2015 and making an asylum claim.
“He was held in immigration detention for three months and, upon release, he abandoned his U.S. claim for protection,” said the June 29 decision out of Ottawa.
Etik “entered Canada without authorization on July 18, 2015,” said the decision. An ethnic Kurd, he made a claim for refugee protection here based on his “claim of a fear of persecution from local police” in Turkey and his political opinion.
“This was the beginning of what has become a very long procedural history,” Federal Court Justice Cecily Strickland wrote in her recent decision.
The RPD first rejected Etik’s claim in May 2016. The RAD upheld that decision in July 2017. Then in February 2018, the Federal Court granted him a judicial review and sent the matter back to the RAD “for redetermination.”
It dismissed Etik’s appeal in June 2018, finding he was excluded due to serious criminality. He applied for a judicial review that same month, then discontinued the application.
Etik applied in the fall of 2018 to re-open his appeal. Then he applied to the Federal Court again for a “judicial review of the refusal to re-open his appeal.”
That was granted by the court in May 2019, and in August of that year, the RAD allowed Etik’s appeal to be reopened.
In July 2021, the RAD granted Etik’s appeal and sent his case back to the RPD “for redetermination on the issues of exclusion and inclusion.”
But in April 2023, the RPD rejected his claim again. Etik appealed to the RAD, which dismissed his case.
“The fourth RAD decision is the subject of this judicial review,” Strickland said.
The fourth RAD panel “considered whether there were serious reasons to believe that the applicant committed the crime,” said the judge.
“In that regard it noted that the synopsis provided by the Turkish courts indicated that (Etik) and his former brother-in-law had an argument over the phone regarding a child custody matter. The two agreed to meet at a restaurant.”
Etik “brought an unlicensed gun with him and fired his gun at his former brother-in-law as the latter entered the restaurant,” said the decision. “The former brother-in-law was not injured but two bystanders were incidentally shot and had non-life-threatening injuries.”
The fourth RAD “concluded that the Second RPD was correct in finding (Etik’s) actions met the threshold for ‘serious reasons for considering’ that he committed the crimes in question.”
It also considered whether the shooting was a “serious crime,” said the decision.
The fourth RAD looked at a decision from the Supreme Court of Canada that “held that a ten-year or more sentence of imprisonment is a good indication of the seriousness of the crime.”
It noted that Etik “had received a three-and-a-half-year sentence from the Turkish courts, which was well below the ten-year yardstick.”
The fourth RAD “found that the aggravating factors far outweighed any mitigating factors,” and concluded Etik’s actions met the serious crime threshold.
Etik’s lawyer argued “that the Fourth RAD erred in failing to consider where in the sentencing range the applicant’s criminal conduct would fall,” said the decision.
The fourth RAD decision “contains no analysis of the applicable sentence under Canadian law,” Etik’s lawyer argued. “It instead weighs aggravating and mitigating factors — which is a separate analysis for determining seriousness.”
It was unreasonable, according to Etik’s lawyer, “for this analysis to focus solely on the maximum sentence under Canadian law without considering what sentence within the applicable sentencing range the applicant was likely to receive in Canada.”
A lawyer for Immigration Minister Lena Diab “presented no evidence to establish that if (Etik) were convicted of either offence in Canada, he would have received a sentence close to the maximum of ten years,” said the decision.
Etik “submits that the Fourth RAD’s failure to meaningfully grapple with whether the sentence would fall at the less serious end of the range is an egregious error and renders the decision unreasonable.”
The judge agreed with Etik that “the Fourth RAD was required to meaningfully grapple with the question of where in the sentencing range the comparable crimes (in Canada) would likely fall in” his circumstances.
“This did not require a precise determination, but it did require an analysis,” Strickland said.
“It was required to also consider whether the crime falls within the less serious or more serious range of the Canadian criminal provision.”
Its “failure to do so renders the decision unreasonable,” said the judge.
“Regrettably, the matter must — yet again — be remitted to (a different panel of the) RAD for redetermination.”
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