Ottawa, Ontario, December 2, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
HUSNIYE OZDEMIR
(HUSNIYE KILIC OZDEMIR)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Dogan and Husniye Ozdemir are Turkish citizens who are Kurdish by ethnicity, Alevi by religion and leftist by political persuasion. Their refugee claims were founded upon their alleged fear of persecution in Turkeybased on their religion, their ethnicity and their political opinions. The Refugee Protection Division of the Immigration and Refugee Board rejected their claims, finding that Mr. Ozdemir's testimony regarding his political activities, profile and past persecution in Turkey was not credible. Given the Board's finding that Ms. Ozdemir's claim was dependent on that of her husband, her claim was rejected as well.
[2] The Ozdemirs now seek judicial review of the Board's decision, asserting that the Board breached the duty of fairness owed to them by not allowing their counsel to examine them in chief at their refugee hearing. In this regard, they assert that Guideline 7 promulgated by the Chairperson of the Immigration and Refugee Board, which stipulates that the standard practice at Board hearings will be for claimants to first be questioned by the Refugee Protection Officer or Board member before being examined by their own counsel, is inconsistent with the principles of procedural fairness. They also assert that the Guideline improperly fetters the discretion of Board members to deviate from the policy.
[3] The Ozdemirs also assert that the Board erred in its assessment of their credibility.
[4] For the reasons that follow, I am satisfied that the Board's credibility findings were sufficiently flawed as to render it unsafe to allow the Board's decision to stand.
[5] Insofar as the "Reverse Order of Questioning" issue is concerned, I note that the Ozdemirs sought and obtained leave of the Court to file affidavit evidence originally submitted by the applicant in Thamotharem v. Minister of Citizenship and Immigration (IMM-7836-04). Although a substantial volume of responding material was evidently submitted to the Court by the Minister in Thamotharem, that material was not put before the Court in this case.
[6] The "Reverse Order of Questioning" issue is an important policy matter for the Board.
Given that my findings in relation to the credibility issue are dispositive of this matter, I decline to make any findings with respect to any fairness issues that may be raised by the Chairperson's Guideline 7 in this case. In my view, those findings are better left to be made on the basis of a complete evidentiary record in the Thamotharem matter.
Mr. Ozdemir's Membership In the Pir Sultan Abdar Association
[7] The Board seemingly accepted that Mr. Ozdemir had been very active in Alevi organizations from the early 1980's up until 2000, and that he had been arrested and mistreated by the Turkish authorities on a number of occasions during that time.
[8] Central to the Board's rejection of Mr. Ozdemir's testimony as to the ongoing persecution that he says that he encountered as a result of his political activities was the Board's finding that he did not join the Pir Sultan Abdar Association in 2000. This led the Board to conclude that Mr. Ozdemir did not participate in a demonstration in July of 2003, and to reject his claim of having been arrested and tortured as a result of his participation in the demonstration.
[9] The Board's finding with respect to the membership issue was largely based upon the Board's interpretation of Mr. Ozdemir's evidence with respect to the issuance of membership cards by the Association. The Board drew a negative inference from the fact that at the first day of hearings, Mr. Ozdemir did not know that the Association issued membership cards. According to the decision, the presiding member advised Mr. Ozdemir at the hearing that she had specialized knowledge of the fact that the Association did indeed give out membership cards.
[10] The transcript of the hearing reveals the following exchange took place with respect to the membership card issue:
Member: .... does the association distribute membership
cards when a person joins?
Claimant 1[Mr. Ozdemir]: Some associations do provide, but Pirsaltan did not have such procedures.
Member: Pirsaltan - when you say Pirsaltan Association does not have the procedures do you mean your association or all Pirsaltan Associations across Turkey?
Claimant 1: I actually don't know if the others have or not
have, but I only attended one branch and that (inaudible).
Actually, I have (inaudible)
Member: We sometimes see cards at this hearing, but I'm not sure if they were from the same association.
Claimant 1: I know that our branch doesn't have it.
(Tribunal Record, p. 541)
[11] Thus it appears that the Member explicitly stated that she was not sure if her specialized knowledge actually related to the Pir Sultan Association in question. What Mr. Ozdemir described was the practice of his branch of the Association. He fully acknowledged that other branches may very well have given out membership cards.
[12] At the second day of sitting, Mr. Ozdemir was able to produce a membership card that was issued by the Federation of Pir Sultan Associations in 2002. He explained that after the first day of hearings, he contacted his lawyer in Turkey to see if the lawyer could obtain proof of Mr. Ozdemir's membership in the Association. The lawyer then forwarded the membership card to Mr. Ozdemir in Canada.
[13] The presiding member rejected the membership card on the basis that it was issued in 2002, whereas Mr. Ozdemir testified that he joined the Pir Sultan Abdar Association in 2000. However, Mr. Ozdemir explained at the hearing that the Federation of Pir Sultan Associations, which was an umbrella group for the various local Pir Sultan Associations, was only formed in 2002, and that, as a result, the earliest memberships in the Federation would only date back to that year.
[14] This was a reasonable explanation which was not considered by the Board. The jurisprudence is clear that the failure of the Board to consider reasonable explanations offered by an applicant may constitute a basis for setting aside a decision: Owusu-Ansah v. Canada(Minister of Employment and Immigration), [1989] F.C.J. No. 442, 8 Imm. L.R. (2d) 106 (F.C.A.).
[15] In this case, the Board had a number of reasons for finding that Mr. Ozdemir's testimony was not credible. However, many of these findings were predicated on the Board's initial rejection of his claim to membership in the Pir Sultan Abdar Association. Having found that this foundational finding was flawed, it follows that a number of the Board's other findings are now suspect.
The Board's Treatment of Ms. Ozdemir's Claim
[16] The Board found that Ms. Ozdemir was not herself a member of any political or cultural association, and that her claim was entirely dependent on that of her husband. Having found Mr. Ozdemir's claim not to be credible, the Board went on to find that Ms. Ozdemir's testimony should also be rejected.
[17] A review of the transcript of the hearing discloses that Ms. Ozdemir testified that while she was not herself a member of the various cultural organizations in question, in her culture there was no requirement for a woman to actually join an organization if her husband was a member.
[18] More importantly, she testified as to her own direct involvement in social and political events and meetings of the associations in question, both as a volunteer and as a supporter. Ms. Ozdemir also testified with respect to incidents where she herself was arrested and mistreated because of her involvement in Alevi activities and demonstrations.
[19] In these circumstances, it was incumbent on the Board to assess the merits of Ms. Ozdemir's claim independently of that of her husband. Having failed to do so, the Board committed a further reviewable error.
Conclusion
[20] For these reasons, the application for judicial review is allowed.
Certification
[21] The Ozdemirs have proposed two questions for certification relating to the "Reverse Order of Questioning" issue. Given my reasoning in this case, those questions would not be dispositive of this matter, and I decline to certify them.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10187-04
STYLE OF CAUSE: DOGAN OZDEMIR ET AL v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: October 11, 2005
PLACE OF HEARING: Toronto, Ontario
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Mactavish
DATED: December 2, 2005
APPEARANCES BY:
Lorne Waldman FOR THE APPLICANT
Robert Bafaro FOR THE RESPONDENT
SOLICITORS OF RECORD:
WALDMAN & ASSOCIATES
Toronto, ON M4P 1L3 FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Department of Justice
Toronto, Ontario FOR THE APPLICANT