Halifax, Nova Scotia, this 12th day of May, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated December 3, 2003, wherein it was determined that the applicant is not a Convention refugee nor a person in need of protection.
[2] The applicant requests that the decision of the Board be set aside and the matter be referred back for determinatin by a differently constituted panel in accordance with such directions as the Court considers to be appropriate
Background
[3] Kadir Alci, (the "applicant") is a citizen of Turkey, who claimed refugee protection pursuant to section 96 and subsection 97(1) of IRPA, based upon his race and nationality (Kurdish).
[4] The applicant grew up in the village of Yazicayir, in the province of Konya, a totally Kurdish area. He completed his military service in February 1998, and returned to Kolu where he worked with his father as a shepherd.
[5] In February 2001, he and his friend were approached by a group of armed men while grazing their animals near their village. These men asked them to share their food with them. They did so and the soldiers left. Two days later, a contingent of soldiers approached asking if they had seen any guerillas in the area.
[6] When they said that they had not, they were detained and beaten, and released only after their fathers paid a bribe. The following month, the military came to their village and interrogated the young people about their knowledge of the guerillas. The applicant began to think about leaving the country, obtained a passport and renewed his identity card.
[7] On March 26, 2001, the applicant and his father were stopped by some paramilitary men who checked their identity cards. When they were unable to answer the questions put to them, they were physically abused then taken to the military station.
[8] At the end of March, the applicant traveled to Istanbul to make arrangements to leave the country. He contacted a smuggler who secured a passport and a U.S. visa for him. He chose Canada as he has a brother living here. He arrived in Canada on June 26, 2001, and made his refugee claim the same day.
[9] The claim for Convention refugee status was heard on November 28, 2003 and denied on December 3, 2003. This is the judicial review of that decision.
Reasons of the Board
[10] The claim is based on an incident that allegedly took place in February 2001. The Board found that the main issue in the claim was credibility.
[11] The Board noted that in his PIF narrative, the applicant stated that in February 2001, he and his friend were approached by a group of armed men while grazing their animals. These men asked them to share food with them, and they did. Two days later a contingent of soldiers approached and asked them whether they had seen any armed people around. When they said no, the soldiers began to beat them.
[12] However, the applicant testified that he and his friend were approached by six or seven soldiers who asked them for food. He explained that he recognized them as members of the Special Teams by their reddish, brownish, uniforms, and that they ate the food offered to them, said nothing and left. He reiterated that the men were members of the Special Teams, and not guerillas, and that this had never happened before because there was no PKK presence in the area. He explained that two days later, the same group of men came and asked if they had seen any people with guns, and when he and his friend replied in the negative, they were insulted and beaten. When asked why the Special Teams would return two days after sharing their food to accuse them of having information about Kurdish guerillas, he was unable to give any explanation.
[13] The Board found that his confusion as to the identity of those who allegedly approached him for food and his lack of an explanation as to why the Special Teams suddenly appeared in his village impacted negatively upon his credibility. The Board did not find it credible that the event of February 2001 took place, but found that it was fabricated for the purpose of his refugee claim.
[14] The applicant stated that the following month he was interrogated, along with other young people of his village. Again, he was allegedly asked questions about the whereabouts of the guerillas. When asked whether this had happened before, he replied in the negative.
[15] The Board noted that according to documentary evidence, the Special Teams were deployed as contra guerillas in Turkey's southeast region, and that they fall under the jurisdiction of the army, police, or gendarme and are involved in fighting the Kurdistan Workers Party, known as the PKK. Although the Human Rights Association in Turkeycontests the claim, Turkish military authorities and international observers claim that special teams have been completely withdrawn from the southeast since 2000.
[16] The Board found that the documentary evidence is consistent that the state of emergency that existed in 1984 to 1999, during which time the government misplaced a large number of persons from villages in the southeast, came to an end in 1999. Since that time, approximately 58,000 persons have been returned, and 400 village and hamlets have been reopened with state assistance. The Board stated that therefore, it did not find it credible that the Special Teams who have not been present in the applicant's village in the past would choose to make raids on the village and target the applicant and his father for no apparent reason in 2001.
[17] The Board noted that according to the applicant, there was no prior PKK presence in his village, and he had never been interrogated or detained before. He had no explanation as to why he had been accused of knowledge of Kurdish guerillas in February and March 2001. The applicant was unable to be specific as to which guerilla forces or groups the Special Teams were seeking. He has no profile, he is a man of limited education, and he had not been involved in any political, social or cultural groups promoting Kurdish rights. The Board therefore found that the event did not take place; it was fabricated for the purpose of the refugee claim.
[18] The Board held that as it did not find the previous incident to be credible, there was insufficient credible evidence that this subsequent incident took place. The Board therefore held that it did not find that the applicant and his father were beaten on March 26, 2001 for being unable to give information regarding the whereabouts of alleged Turkish guerillas.
[19] The Board noted further credibility concerns regarding the applicant's documents. He stated that he had shown his old identity card. However, his renewed identity card was issued on March 14, 2001. He explained that in order to get a renewed card, he would have to submit his old one. Yet, when asked about the incident of March 26, 2001, he stated that he had shown the authorities his old identity card, and further explained that the smuggler secured the new card for him dated March 13, 2001, even though he received it after March 26, 2001. The Board did not find the explanation to be credible and drew a negative inference from the confusion and contradiction.
[20] The Board noted that the applicant came to Canadabecause he has a brother living here. His brother met him at the airport. In the Port of Entry ("POE") notes, the applicant stated that his problem in Turkey was because of his religion. The Board drew a negative inference from the difference in information in the POE notes, the PIF narrative and the applicant's testimony.
[21] The Board noted that documentary evidence is consistent that a refugee claim cannot be made solely on the basis of Kurdish identity. Accordingly it found that the applicant had no reason to fear returning to Turkey, on account of his Kurdish ethnicity.
[22] The Board found that the applicant would not face any risk upon his return as a failed asylum seeker. The documentary evidence showed that, "The Canadian embassy has 'very little involvement' in the return of failed asylum seekers to Turkey. Furthermore, only when a returnee is to be escorted by Canadian authorities do they advise the Turkish government."
[23] The Board noted that a psychological report from Dr. Devins was submitted, and it relied on the testimony of the applicant. The Board held that as it did not find sufficient credible evidence that the alleged traumatic events took place, it did not find the resultant diagnosis to apply.
Issues
[24] The applicant proposed the following issues:
1. Did the Refugee Division err with respect to the credible evidence and err in failing to provide a separate analysis under section 97 and a cumulative analysis under sections 96 and 97?
2. Did the Refugee Division err in finding the applicant not credible?
Applicant's Submissions
[25] Issue 1
The applicant submitted that the Board erred in making a finding that because the Canadian Embassy or the Canadian government would not be in contact with the Turkish authorities about the applicant, there was no risk to the applicant. The point was that the applicant feared extra judicial treatment as a Kurdish failed asylum seeker being returned to Turkey (see Donboli v. Canada(Minister of Citizenship and Immigration) 2003 FC 883 and Castaneda v. Canada(Minister of Employment and Immigration) (1993), 69 F.T.R. 133).
[26] The applicant submitted that the Board erred in finding that the applicant would not face any risk upon return to Turkey as a failed Kurdish asylum seeker. The Board did not explicitly consider the applicant as a Kurdish returnee who had made a failed asylum claim in a cumulative sense. The Board artificially divided these two aspects, which would never be so divided by the authorities upon return. The Board was required to evaluate these two points together, cumulatively (see Ozen v. Canada(Minister of Citizenship and Immigration) 2002 FCT 521).
[27] The applicant submitted that there was credible evidence that the applicant was a Kurd who would be deported to Turkey (a country that engages in torture), and where conditions in detention may amount to mistreatment (see Kilic v. Canada(Minister of Citizenship and Immigration) 2004 FC 84). Therefore, the Refugee Division erred in failing to provide an analysis under section 97 separate from section 96.
[28] Issue 2
The applicant submitted that the Board acknowledged that the applicant had only five years of education which was a mitigating factor in the credibility assessment.
[29] The applicant further submitted that the Board misconstrued and failed to give due weight to a medical report filed in support of the claim. Dr. Devins did not confirm that the applicant had undergone the experiences that he alleged, which appears to have been the Board's understanding. Rather, the medical opinion was the applicant had undergone a traumatic experience which continued to cause symptoms to the applicant. Most importantly for the assessment of credibility, the applicant's manner of testifying was significantly affected. The applicant would have difficulty understanding questions and might not be able to formulate a coherent response or retrieve details from the past.
[30] It was not open to the Board to reject the doctor's diagnosis. The point was that the applicant would not respond normally, rather that his testimony would be significantly impaired.
[31] It was open to the Board to find that the traumatic experience was not what the applicant alleged, but it was not open to the Board to find that the applicant had not undergone some kind of traumatic experience. Further, the report was not based only on the applicant's testimony. The report was based on the observation of the applicant's demeanour during the assessment by Dr. Devins.
[32] The applicant submitted that the Board's findings regarding discrepancies (including for instance, the POE notes and the PIF discrepancies - the main finding regarding the Special Teams and whether or not they were disguised on the first encounter), and the finding regarding the identity card, are all affected by the overriding error of misconstruing the medical evidence.
[33] The applicant further submitted that the Board misconstrued the applicant's evidence. The Board found that the applicant's account was implausible since the applicant alleged he feared the Special Teams, a branch of the Turkish gendarmes, which he encountered near his village, in 2001. The applicant lived in Central Anatolia. The Board found that the applicant's evidence was not trustworthy because the Special Teams had withdrawn from the southeast. The Board erred in finding that because the Special Teams withdrew from the southeast, they could not have been in Central Anatolia, in the province of Konya.
[34] The applicant submitted that in finding that the applicant had no profile, the Board failed to consider the matter from the perspective of the agent of persecution. The Federal Court of Appeal in Hilov. Canada(Minister of Employment and Immigration) (1991), 15 Imm L.R. (2d) 199 (F.C.A.) found that the Board had erred in its assessment of political opinion because the Board focused on the claimant's activities within his political group. The Supreme Court of Canada in Canada (Attorney General) v.Ward, [1993] 2 S.C.R. 689 recognized that an unexpressed political opinion is imputed to the individual in question due to his or her activities and behaviour. The Court also recognized that persecution may be based on a political opinion incorrectly attributed to an individual.
[35] The applicant submitted that the Board erred in rejecting the applicant's evidence of the subsequent beating of himself and his father because the prior event had been rejected. The two events were not logically related to each other.
[36] The applicant submitted that the Board erred in stating that when the applicant was confronted with the discrepancy that the Board found in the PIF, that the applicant was approached by guerillas, while in oral evidence, the applicant stated he believed that they were military.
[37] In fact, the applicant was never confronted with this. The Board erred in failing to do so and erred in law in making a finding on the basis that the applicant had not been able to explain the discrepancy. The applicant was never asked about the discrepancy and therefore there is no explanation on the record.
[38] The Board rejected the applicant's evidence vis-a-vis the Board's view that the applicant's evidence is contradicted by the documentary evidence. The Board failed to provide any rationale for preferring the documentary evidence over the applicant's sworn evidence and therefore erred in law. (see Okyere-Arosay v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 411 and Cotinho v. Canada(Minister of Citizenship and Immigration) 2004 FC 1037).
[39] The applicant submitted that the Board erred in law in making a number of negative inferences based on the applicant's inability to explain the behaviour of the authorities, which the applicant could not know (see Lenji v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1294).
Respondent's Submissions
[40] The respondent submitted that the applicant's arguments amount to arguments concerning the weight of evidence. It is well established that the Board is entitled to rely on the objective documentary evidence in preference to the testimony provided by a claimant. Furthermore, the tribunal is also entitled to give more weight to the documentary evidence, even if it finds the claimant trustworthy and credible (see Zhou v. Canada(Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (F.C.A.)).
[41] The Federal Court of Appeal has held that negative decisions on a person's credibility are properly made as long as the tribunal gives reasons in "clear and unmistakable terms". A finding should be supported by examples, that led the Board to doubt the applicant's story (see Hilo, supra).
[42] The respondent submitted that the Board's finding that there is insufficient credible or trustworthy evidence is made in clear and unmistakable terms. The Board determined that the applicant fabricated the February 2001 incident for the purposes of the refugee claim. The Board noted discrepancies and implausibilities in the applicant's evidence.
[43] The February 2001 incident allegedly precipitated the applicant's departure from Turkey. The Board considered the applicant's limited education, but did not find it credible that he would confuse the identity of those who had approached him.
[44] The respondent submitted that the Board considered whether the applicant would be at risk given that he had made an asylum claim in Canada. The Board clearly accepted the applicant's identity as a Kurd and considered his fate as a returned asylum seeker. The documents produced by the applicant appear to deal with the European and not the Canadian situation. In the within case, the record indicated that the applicant left on a passport and has completed his military service.
[45] The respondent submitted that the Board clearly articulated its reasons for finding the applicant not to be a Convention refugee or a person in need of protection. The respondent submitted that given the numerous findings regarding the applicant's evidence and the objective country documentation, the reasons are sufficient.
[46] The Board's reasons clearly stated that it considered the applicant's educational background and the report prepared by Dr. Devins. Dr. Devins, for the purposes of the report, accepted the events described by the applicant in his PIF. As the Board did not believe the applicant and gave Dr. Devin's assessment little weight in determining whether the applicant is a Convention refugee or a person in need of protection, the diagnosis becomes irrelevant (see Syed v. Canada (Minister of Citizenship and Immigration) 2000 F.C.J. 597).
[47] The respondent submitted that while the Board did not squarely put the discrepancy between the applicant's written and oral evidence to the applicant, the Board did provide the applicant with an opportunity to clarify his evidence. There was no obligation to do anything further. The discrepancy in this case was an obvious one. Additionally, the discrepancy was referred to in the Refugee Protection Officer's ("RPO") closing submissions.
[48] The respondent submitted that it was open to the Board to ask the applicant why the Special Teams would visit the applicant's village given his evidence that there was no PKK presence. The applicant's evidence was inconsistent with the documentary evidence concerning the deployment of Special Teams.
[49] Even if the applicant's village is not located in south eastern Turkey, the documentary evidence indicated that Special Teams were deployed in the southeast to fight the PKK and were being disbanded in 2000. There was no PKK presence in the applicant's village. It was therefore open to the Board to conclude that the February 2001 incident did not take place.
[50] The respondent submitted that it was reasonably open to the Board to disbelieve the applicant's story that he and his father were stopped by paramilitaries on March 26, 2001. The applicant testified that he gave his old identity card to the paramilitaries, however, his new identity card was issued on March 14, 2001. In order to obtain a new card, the old one must be submitted. Further, in his PIF narrative, the applicant stated that he received his new card prior to the March 26th incident.
[51] The respondent further submitted that it was open to the Board to draw a negative inference from the discrepancy between the applicant's POE interview where he stated that he had problems in Turkey due to his religion, and his written evidence, where he stated that he faced problems due to his ethnicity.
Relevant Statutory Provisions
[52] Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, supra, define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
. . .
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
|
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
. . .
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
Analysis and Decision
[53] Standard of Review
The standard of review to be applied to questions of credibility is patent unreasonableness.
[54] Issue 1
Did the Refugee Division err with respect to the credible evidence and err in failing to provide a separate analysis under section 97 and a cumulative analysis under sections 96 and 97?
The applicant was concerned that he would be harmed by the Turkish authorities upon his return to Turkey, because he is a failed asylum seeker. The Board stated, in part, that the documentary evidence showed that "The Canadian Embassy has 'very little involvement' in the return of failed asylum seekers to Turkey. Furthermore, only when a returnee is to be escorted by Canadian authorities do they advise the Turkish government". Based on this evidence, the Board found that the applicant would not face any risk upon his return as a failed asylum seeker.
[55] However, the documentary evidence before the Board included the following:
Being Kurdish places a returned asylum seeker at greater risk of mistreatment than being Turkish. Without travel documents he will be thoroughly checked, first at the airport and if there is an apparent need for further investigation, at the notorious political/anti-terror police headquarters on Vatan Caddesi. Torture is likely in either location. It is not actual anti-State activities either in Turkey or in Europe which place a returned asylum seeker at risk. It is a wider danger, for example: the suspicion that a returnee holds anti-State views or may have committed anti-State activities, or the activities of a returnee's relatives or his place of birth which may place a returnee in jeopardy of torture.
. . .
In the current political context, failed asylum seekers who return to Turkey are at grave risk of detention and torture. . . .
(tribunal record, pages 234 and 238)
[56] The Board did not refer to this evidence in its decision. In Cepeda-Gutierrez v. Canada(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, the Court stated the following in relation to the failure of a Board to mention evidence contrary to evidence cited by it:
The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medinav. Canada(Minister of Employment and Immigration) (1990) 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.)). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[57] In this case, I am of the opinion that the Board made a reviewable error in not referring to the contrary evidence and dealing with it one way or the other. I do not know from the reasons whether the Board considered this contrary evidence.
[58] The Board also drew a negative credibility inference against the applicant because of the discrepancy between the information in the applicant's PIF and his testimony concerning the persons who approached him for food. In his PIF, the applicant referred to the persons as "military disguised as guerrillas", while in his oral testimony, he referred to them as soldiers. The Board did not put this contradiction to the applicant for an explanation. I am of the opinion that when the Board relied on the contradiction to make a negative credibility finding, it should have put the contradiction to the applicant for a possible explanation.
[59] Because of my findings above, I need not address the other issue raised by the applicant.
[60] The application for judicial review is therefore allowed, the decision of the Board is set aside and the matter is referred back to a different panel of the Board for reconsideration.
[61] As my decision is not based on the Court's findings in Li v. Canada(Minister of Citizenship and Immigration), [2004] 3 F.C.R. 501, appeal [2005] F.C.J. No. 1, leave to the Supreme Court of Canada dismissed on May 5, 2005, neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
[62] IT IS ORDERED that the application for judicial review is allowed, the decision of the Board is set aside and the matter is referred back to a different panel of the Board for reconsideration.
J.F.C.
Halifax, Nova Scotia
May 12, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5-04
STYLE OF CAUSE: KADIR ALCI
- and -
-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 11, 2005
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
APPEARANCES:
Micheal Crane
Bernard Assan
SOLICITORS OF RECORD:
Micheal Crane
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General