BETWEEN:
SERANAY BULUT
BATUHAN BULUT
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] This is an application for judicial review of a decision of the Immigration and Refugee Board, Refugee Protection Division, wherein it was determined that the Applicants are not Convention Refugees and not persons in need of protection.
[2] The Applicants are a father and his two children who are citizens of Turkey. They are ethnically Alevi Kurds. They claim to be persons in need of protection by reason of a well-founded fear of persecution based on race, religion, nationality and political opinions. The father alleges that he participated in anti-government demonstrations in Turkey which resulted in his arrest and detention for two days during which time he was tortured. The father claims that he divorced his wife, the mother of the children, in Turkey for her protection, and fled with the children to Canada in June 2001 at which time he made a refugee claim for him and the two children.
[3] The Board did not believe the Applicants' story. The findings of the Board summarized at pages 33 and 34 of its Reasons as follows:
Therefore, for all the above reasons, the panel, on a balance of probabilities, finds the following about these claimants. The principal claimant is an Alevi Kurd. However, none of the alleged events he has testified to him in regard to his being persecuted ever took place. Specifically, he was never held by the police in March 1997; the events of February 1999 never took place; and the events of March 2001 never happened. The principal claimant, and possibly the minor claimants, has spent some time in the United Kingdom. The principal claimant has also been to the United States. He flew into New Yorkon 2 September 2000 and went back to United Kingdomon 15 Sep 2000. The claimants have used a valid Turkish passport in their own names and the principal claimant has obtained this document directly from the passport office. No smuggler was used to help these claimants leave Turkey and come to Canada. The panel has valid reason to believe that the principal claimant is in Canadafor economic reasons. It believes that his marriage broke down and he was divorced from his wife and decided to bring his children to Canadato begin a new life. Specifically, he is not wanted by the authorities and if he would be returned to Turkeythey would have no interest in him. Further, while the claimant has converted to Christianity, neither the government nor Hezbollah would persecute him because of his conversion. Conversely, the authorities have no interest whatsoever in the minor claimants. Thus, if these claimants were to be returned to Turkey, there is not a serious possibility that they would be persecuted or would need the protection of Canada.
[4] The Applicants raise two issues:
1. Was the Board member biased; and
2. Was the Board member overzealous such that he made improper assumptions based on no evidence or wrong evidence, and imposed upon the Applicants too high a standard of proof.
ISSUE #1 - Bias
[5] The Applicants' argument as to bias, or more properly a form of bias, namely prejudice, in respect of the Board member Mr. Leonoff., who heard the case and made the decision. The argument is based on materials appended to a legal assistant's affidavit filed with the Board to which was attached certain responses obtained by the lawyer that she worked for from the Information Commissioner. In brief the allegation was that Mr. Leonoff accepts far fewer "Turkish" claims than the "national" acceptance rate. The nub of the argument is set out in paragraphs 10, 11 and 12 of the Applicants' Memorandum:
10. On a national level, Turkish claims had a success rate of 60% in 2003 and 64% for the first 5 months of 2004. In Toronto, Turkish claims had a success rate of 70% in 2003, and 75% in the first 3 months of 2004. These rates, as would be expected, are within 10 to 15 percent of one another.
11. Laurence Leonoff accepted only 15% of Turkish claims in 2003, and a remarkable 0.00% in the first four months 2004. Fundamental justice requires that a refugee claimant have an impartial decision-maker. Singh v. Canada, [1985] 1 S.C.R. 177
12. It is respectfully submitted that there can be absolutely no doubt that this difference is clearly statistically significant and demonstrates a real bias relative to other Board members.
[6] The Applicants could not point to any instance of actual bias or prejudice on the part of the Board member, but, they say, the numbers given above give rise to a reasonable apprehension of bias.
[7] An allegation of bias is a serious matter, a person alleged to be biased in their professional capacity is entitled to have the allegation properly supported by credible evidence and sound reasoning. The test as to bias is not disputed, it is the statement of de Grandpré J. in dissent in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at pages 394-395:
...the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... (T)hat test is "what would a informed person, viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likely than not that (the decision maker), whether consciously or unconsciously, would not decide fairly."
***
The grounds for this apprehension must, however, be substantial and I ...refus(e) to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience".
[8] In short, the apprehension of bias must be substantial as viewed by a reasonable and right-minded person.
[9] The Board member himself was asked to consider this allegation of bias and in a separate decision dated October 21, 2004 found that the allegation of reasonable apprehension of bias had not been made out against him. The member properly held at page 5 of his Reasons:
Each claim stands on its own merits and the Members of the Refugee Division have to assess each case based on evidence and applicable law. Such an assertion reflects directly on the integrity of the Members in question and cannot be accepted, unless there is good evidence. Mere suspicion based on "rates" does not meet the applicable standard of the well-informed individual considering the matter in depth in a realistic and a practical way. I, therefore, dismiss this objection.
[10] The numbers alone as presented by the Applicants are meaningless without an informed analysis as to what they mean and whether a reasonable conclusion can, as a result, be drawn from them. Here there was no attempt to provide an analysis as to what lay behind the numbers and what reasonable inferences and conclusions can be drawn. It would be reasonable to expect, especially upon judicial review, to find expert evidence to be filed in this regard. There was none.
[11] The allegation of bias is not well founded.
ISSUE #2 - Overzealousness
[12] The Board member delivered a thirty five page set of Reasons, he went into great detail as to his Reasons and matters considered by him to be pertinent. The usual criticism levelled against the Reasons of a Board is that they are too brief or fail to set out all matters considered in arriving at the conclusions. Here, apparently the opposite is alleged.
[13] No doubt aware that an allegation of bias had been raised, the Board member was meticulous and fulsome in his Reasons. I find that there is nothing patently unreasonable in the findings made and that he made no material oversight or misconstrual having regard to the evidence.
IN CONCLUSION
[14] The application is dismissed. Neither party suggested a question for certification and none is found.
[15] As to costs, Rule 22 of this Court pertaining to Immigration and Refugee Protection stipulates that no costs shall be awarded unless the Court so orders for special reasons. Here an allegation of bias was raised at the Board level and dealt with there. That allegation was raised again on this judicial review without any effort made to provide reasonable substantiation for that allegation. It was almost careless or thoughtless. For this reason costs will be assessed against the Applicants fixed in the sum of five hundred dollars ($500.00).
"Roger T. Hughes"
Toronto, Ontario
November 30, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-821-05
STYLE OF CAUSE: BAYRAM BULUT
SERANAY BULUT
BATUHAN BULUT
Applicants
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 29, 2005
APPEARANCES:
Alex Billingsley FOR THE APPLICANTS
Kristina Dragaitis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Alex Billingsley
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT