Date: 20031218
Docket: IMM-5313-02
Citation: 2003 FC 1498
Ottawa, Ontario, this 18th day of December, 2003
Present: The Honourable Justice James Russell
BETWEEN:
MEHMET YILMAZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision of Kathleen Freeman, Member of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Member"), dated September 25, 2002 ("Decision") wherein she determined Mehmet Yilmaz ("Applicant") was not a Convention refugee. The Applicant requests an order quashing the Decision and remitting the matter back for redetermination by a differently constituted panel.
BACKGROUND
[2] For the purpose of his application, the Applicant submitted a Personal Information Form (PIF) that he later amended after retaining new counsel. In his revised PIF, he indicated that he feared persecution in Turkey because of his Alevi religion and his leftist political opinions. The following facts are a summary of the Applicant's submissions in his PIF.
[3] He indicated that his parents were Alevis and leftists. When he was nine years old, the family moved to the Cenedag district of Izmit, a predominantly Alevi area.
[4] He went on to indicate that, because his neighbourhood was predominantly Alevi and leftist, people there were constantly subjected to random searches and arrests. Even as a child, the Applicant was stopped and frisked by police. His father was detained on several occasions and subjected to torture.
[5] The Applicant contends that he and his family also faced difficulties with religious groups. On one occasion, fundamentalists set fire to his car. On another occasion, they were prevented from eating in a restaurant. At school, the Applicant was ostracised by other children. The teachers also taught that Alevis were sinners and infidels, and they forced the Applicant to practise as a "genuine Muslim."
[6] The Applicant also claimed to have suffered discrimination in the workplace and he said he was fired from several jobs when his employers discovered that he was Alevi.
[7] He indicated that, after school, he became active in the Cem Cultural Centre (CED-DER) in Izmit. He remained a member until he left Turkey. Even after he moved to Ankara, he would return to Izmit several times a year to attend or participate in group activities. The cultural centre was vulnerable to attacks by fundamentalists and was vandalized on several occasions. The police would do nothing to help. The Applicant was also subjected to harassment on several occasions. Once, when he was sitting in a café during Friday prayers, a group of fundamentalists attacked him. The police were close by but did nothing to help. In the same year, his wife was attacked by two fanatics for not wearing a head scarf.
[8] CED-DER conducted cultural, religious and political activities. The organization would also issue a press release if something significant happened in Turkey. Members of CED-DER would join in supporting the "Gatherings of the Saturday Mothers" for people who had disappeared.
[9] Between 1987 and 1996, the Applicant made several visits to friends and fellow-CED-DER members who were in prison for their political activities. These visits made him afraid that something might happen to him. He also participated in the public Gatherings of the Saturday Mothers and voted for leftist parties.
[10] At the beginning of January 2001, the Applicant went to Taksim Square in Istanbul to support a Gathering of the Saturday Mothers. The chairman of CED-DER and many of its members also attended. The mothers, however, did not appear on this occasion. CED-DER learned that they had been seriously harassed by the police the previous week and that they were afraid of coming. The chairman began to read a statement criticizing F-Type prisons and the treatment of prisoners. The police arrived and arrested the Applicant and others for staging an unauthorized protest. The Applicant was placed in a basement cell and was detained for two days. He was regularly taken out of the cell and beaten. A gun was held to his head and he was threatened with death.
[11] After two days, the Applicant and his cohorts were released. They were given a lecture and threatened and then taken back to the city. After his release, the Applicant began to receive phone calls threatening to kill him for being a Kafir and a leftist.
[12] Finally, he decided to flee the country. He left for Turkey on February 4, 2001. He obtained forged documents and gained passage on a ship to the United States, where he arrived on February 25, 2001. He did not claim asylum in the US because he has no family there, so he immediately went to Niagara Falls, and arrived there on February 28, 2001. He claimed he had a brother in Canada.
[13] After he left Turkey, his wife continued to receive threatening phone calls and, as a result, left Ankara and moved in with her parents in Adapazari.
DECISION UNDER REVIEW
[14] The Member indicated that the fundamental issue was credibility and went on to elaborate on various problematic aspects in the Applicant's narrative as well as the well-foundedness of his claim. Because the cumulative impact of the problems in the Applicant's narrative was such an important aspect of the Decision, the Member's concerns and manner of dealing with the Applicant's testimony need to be set out here in some detail.
The second PIF as an embellishment
[15] The Member found contradictions, inconsistences, and embellishments in the Applicant's narrative that rebutted the presumption that his account was true. She noted that the original narrative as presented by the Applicant's first counsel underwent revision by the Applicant's second counsel. She found that, while the revised PIF did not contain major contradictions or inconsistencies, it did contain embellishments.
[16] At the hearing, the Member asked the Applicant's counsel why the PIF narrative had been substantially revised. Counsel replied that he was not the original counsel in the case, that the original counsel had prepared the narrative and, upon questioning the Applicant, he had learned of additional details that were important and had added them to the PIF. Also, the Applicant indicated that he had not got along with the original interpreter and that he had signed the original PIF and declared it to be true even though it had not been read back to him in Turkish.
[17] The Member did not accept this explanation. She concluded that the Applicant had been represented by experienced counsel and the PIF was signed by both the Applicant and the interpreter declaring the contents to be true. She found, therefore, that the revised PIF contained embellishments designed merely to enhance the Applicant's claim, and that not all of the additional information was true.
Contradictions between the two PIFs
[18] The Member found that certain contradictions and inconsistencies between the original and the revised PIF led to the conclusion that the Applicant was not credible. In his revised PIF the Applicant changed his description of how he had arrived in Canada. In his original PIF, he stated that he had left Turkey on February 24, 2001, and travelled by plane to the USA, arriving the same day and making his way to Canada on February 28, 2001. In the revised PIF he said he had left Turkey on February 4, 2001, and had gone by ship to the United States, arriving on February 25, 2001. The Member did not accept that such an error could be caused by problems of interpretation or memory.
Contradictions between PIFs and testimony - Brother in Canada
[19] The Member noted that in both PIF narratives the Applicant stated he had a brother in Canada, but in his oral testimony he stated that this was not the case. The Member regarded this as a contradiction that, when looked at in conjunction with other concerns, seriously undermined the Applicant's general credibility.
Contradictions between PIFs and testimony - Wife moved to Adapazari
[20] The Member noted that, in paragraph 13.1 of the amended narrative, the Applicant had stated that "[a]fter a few months she [his wife] became too afraid to remain in Ankara, so she and our daughters moved to Adapazari to live with her parents." However, in oral testimony he stated that, while he had worked in Ankara, his home was in Adapazari, a three-hour drive away, and that his family had always lived there. When questioned on the discrepancy he explained that the interpreter had mistaken what he had said.
Contradictions between PIFs and testimony - Cumulative effect
[21] The Member noted the submission of counsel for the Applicant to the effect that, while there were a number of inconsistencies in the Applicant's testimony, none of them were material to the claim. The Member found that, while the inconsistencies considered individually might have seemed insignificant, when taken together they supported a finding of lack of credibility.
Saturday Mothers
[22] The Member did not accept the Applicant's account of the precipitating event that caused him to flee Turkey. The Applicant stated that, on January 6, 2001, he went to Taksim Square with other members of CED-DER to support a Gathering of Saturday Mothers but found the place almost empty. His explanation was that several of the women had been seriously harassed by the police during the previous week and were too scared to attend. The Member did not accept this and reasoned that the Saturday Mothers group had been protesting for five years and knew they were taking a risk, so it was unlikely that such a group would succumb to police harassment when they had received international media attention and their aim was to put pressure on the Turkish government to reform its human rights record. On this basis, the Member just did not believe the Applicant had attended a demonstration of the Gathering of the Mothers on January 6, 2001.
Embellished story regarding media coverage
[23] The Member found that the Applicant embellished his story regarding the media coverage of the Gathering of Saturday Mothers incident. The Applicant claimed his group had permission from Istanbul for their chairman to make an announcement, and that the press had been notified. He said the newspapers from Adapazari attended the demonstration and recorded their arrests on camera. An article was published in the newspaper of the Applicant's friend. The Member did not find it credible that the Applicant would not have made an attempt to provide a copy of the article and so concluded that the article was never written.
Other inconsistencies
[24] The Member noted that the Applicant's amended PIF indicated that the Applicant stopped working at his place of employment in January, 2001, while in the original PIF and in his oral evidence he indicated that he stopped working either at the beginning of 2001 or the end of 2000. Also, the Applicant stated that he was detained on either January 5 or 6, 2001. The Member found that it was not credible that the Applicant would not remember if he was still employed at the time of his incarceration.
Well-foundedness of the Claim - No risk of persecution
[25] The Member found that there was no evidence that Alevis are persecuted in Turkey on account of their religious beliefs. She also found that the Applicant's activities in CED-DER did not constitute activity of such a nature as to give him a political profile. The Member did not believe the Applicant had been detained for two days but, even if this had occurred, his political profile was not significant enough to be of interest to the police. She found that the documentary evidence indicated that Alevis are not subject to persecution but that those who openly criticized authority, or are socialists or student activists, may expect "ruder" treatment from the authorities. The Member found that the Applicant was not a student or an activist, had no profile, and did not face a serious possibility of persecution if returned to Turkey.
Well-foundedness of the Claim - Threatening phone calls
[26] The Member found inconsistencies in the Applicant's evidence relating to the threatening phone calls. In his oral evidence, the Applicant said he decided to leave Turkey after receiving threatening phone calls. He stated that, upon his release from detention, he went home to Adapazari, stayed for one or two nights, then went to Istanbul for three weeks, and then came to North America. The Member found this conflicted with his PIF statement to the effect that one week after his release he received threatening phone calls at home and at work.
Well-foundedness of the Claim - Psychological report, danger if removed
[27] The Member dismissed the post-hearing psychological assessment provided by the Applicant which said he suffered from post-traumatic stress disorder. She felt that, because she had already rejected the factual underpinnings of the report that had been provided by the Applicant, she was unable to give it any weight in her Decision. The Member also dismissed the possibility that the Applicant would be in danger if deported to Turkey.
ISSUES
[28] The Applicant raises the following issues:
Did the Member err by making unreasonable findings with respect to the credibility and plausibility of the Applicant's evidence?
Did the Member ignore or misconstrue the evidence?
ANALYSIS
What is the appropriate standard of review to apply to the Member's Decision?
[29] The standard of review for credibility findings of the Refugee Division is well established and was described in (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (Fed. C.A.)):
4. There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: Who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. ...
[30] The Court should not seek to reweigh evidence before the Board simply because it would have reached a different conclusion. As long as there is evidence to support the Board's finding of credibility and no overriding error has occurred, the decision should not be disturbed.
Did the Member err by making unreasonable findings with respect to the credibility and plausibility of the Applicant's evidence?
The second PIF as an embellishment
[31] The Member stated in her reasons that, when the Applicant was asked why there were substantial revisions to his PIF, he responded that he did not get along with the interpreter who had prepared the first PIF and that he signed the PIF and declared it to be true even though it had not been read back to him in Turkish. The Member rejected this explanation on the grounds that the Applicant was represented by experienced counsel and the PIF was signed by both the Applicant and the interpreter.
[32] The Applicant submits that this reasoning is patently unreasonable. He contends the experience of his counsel has no bearing on whether or not the translator properly translated the information provided by the Applicant. Counsel did not speak or write Turkish. The Applicant further contends that the signing of the PIF does not render implausible the evidence of the Applicant that he did not have an opportunity to verify the translation.
[33] The Applicant refers to Veres v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 124, wherein Pelletier J. indicated as follows:
11. ... It is within the CRDD's mandate to disbelieve Mr. Veres' explanation for the absence of copies of important documents. It is not within its mandate to ignore a reasonable explanation and to treat the evidence as though the explanation had never been given. See Chehar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1379 (T.D. (QL), Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.).
[34] In this case, I find that the Member did not ignore the Applicant's explanation but, rather, chose not to believe it. The Applicant argues that the Member's reference to the fact that the Applicant was represented by an experienced lawyer does not address the Applicant's contention that he did not get along with the translator, which the Applicant submits is the real issue. The Applicant also indicates that his lawyer at that time did not speak Turkish. It is the responsibility of the Applicant to ensure that any statement he signs is correct. The fact that the Applicant was represented at the time by experienced counsel meant that he had adequate advice on hand concerning his responsibility and the consequences of signing a document that had not been read back to him in Turkish. He was quite at liberty to raise any concerns he had over the process with his counsel and should have done so at that time. It is just too easy to say later that the interpreter got it wrong.
[35] The Member made no reviewable error in questioning the level of embellishment between the two PIFs and in deciding that the Applicant did not provide an adequate explanation for having signed the original.
Contradictions between the two PIFs
[36] The Applicant contends that the Member originally noted that there were no major inconsistencies between the original and revised PIF, but then went on to find that the inconsistencies destroyed the credibility of the Applicant. In particular, the Member could not accept that the different versions of how the Applicant arrived in Canada could be due to problems of interpretation or memory.
[37] The Applicant submits that it is entirely plausible that the inconsistencies were caused by translation problems. He did not have an opportunity to review the first PIF because the translator would not read it to him in his language. The Applicant argues that the errors of the original PIF could not be detected or connected until later when he obtained new counsel.
[38] Subject to what I have to say later about the Applicant's psychological condition, it is difficult to fault the Member's assessment of such a broad discrepancy between the Applicant's two accounts of how he reached Canada. Although this type of deviation might be attributable to translation error on its own, when looked at in combination with other discrepancies it cannot help but have a serious negative impact on the Applicant's credibility. It is not plausible to attribute the difference between a flight in late February and a three week ship voyage beginning in early February to a failure of memory. I find that the Member did not err in finding that this inconsistency between the original and revised PIF, in combination with other contradiction and inconsistencies, led to a conclusion that the Applicant was not credible.
Contradictions between PIFs and testimony - Brother in Canada
[39] The Member noted that in both written narratives the Applicant stated he had a brother in Canada, but in his oral testimony he said he did not. The Applicant submits that this is the only unexplained contradiction in the entire claim and, as it is irrelevant whether the Applicant has a brother in Canada, this finding in itself cannot reasonably be a basis to find the Applicant lacked credibility.
[40] I agree that this finding in itself might not have provided a reasonable basis to find the Applicant was not credible. However, this inconsistency between the original and revised PIFs and the Applicant's oral testimony, in combination with other contradiction and inconsistencies, constituted part of the basis for a negative credibility finding and, in my opinion, the Member did not err in this regard.
Contradictions between PIFs and testimony - Wife moved to Adapazari
[41] The second PIF stated that the Applicant's wife moved from Ankara to Adapazari to live with her parents. However, in oral testimony, the Applicant said he had always lived in Adapazari. When questioned about this discrepancy, the Applicant said it was a mistake by the interpreter.
[42] The Applicant submits that it is clearly plausible that this was an error made by the interpreter. He notes that, as he explained in his oral testimony, he worked in Ankara and often stayed there for several days each week before returning to his home in Adapazari, which could lead to some confusion as to his actual place of residence. The Applicant also submits that whether his wife moved from her home in Ankara to live with her parents is a peripheral matter and should not have been used to impeach his credibility.
[43] This confusing account could be attributable to interpreter error, and I agree that it is peripheral to the Applicant's claim. But, once again, it is one of many inconsistencies noted by the Member and it is merely part of the cumulative effect that caused the Member to decide against the Applicant on grounds of credibility. In my opinion, the Member did not place undue reliance on this discrepancy in coming to her conclusion that the Applicant was not credible.
Contradictions between PIFs and testimony - Cumulative effect
[44] The Applicant submits that the Member disregarded counsel's submissions at the hearing to the effect that the inconsistencies in the Applicant's testimony were immaterial to his claim. The Applicant submits that, since the findings individually were either insignificant or peripheral, they cannot reasonably be elevated to a negative credibility finding when taken together.
[45] I respectfully disagree with the Applicant on this point. It cannot be said that the findings relied upon by the Member were unreasonable or individually insignificant. There is a well-settled line of precedents arising out of the Federal Court of Appeal decision in Dan-Ash v. Canada (Minister of Employment and Immigration) (1988), 93 N.R. 33 that support the Member's findings based on the cumulative effect of multiple inconsistencies.
[46] Dan-Ash, supra, involved an application by the Minister seeking to review and set aside a decision of the Immigration Appeal Board that determined the respondent in that case was a Convention refugee. Central to that decision was the Board's finding that, despite "many contradictions" in his testimony, the respondent was a credible witness. Hugessen J., writing for the Federal Court of Appeal, made the following observation:
The respondent's counsel has ably attempted to persuade us that this error by the Board was of no consequence. The respondent had categorically denied having been fingerprinted in Germany or, indeed, ever having been to that country at all. (Appeal Book, pages 422-423). Since the Board had accepted the respondent as credible despite his "many contradictions", what possible difference could one or two more make? The argument, though ingenious, is not acceptable; unless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence. It is simply impossible for us to say that point would not have been reached in this case if the Board had properly instructed itself in the law. That being so, the decision cannot stand.
[47] Helpful guidance on cumulative inconsistencies and implausibilities can also be found in Gregory v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 606 (Fed. T.D.) where Heald D.J. had the following to say:
1. Credibility
5. The Board made several adverse findings of credibility, some of which were based on what the Board perceived as implausibilities in the applicant's story. Others were based upon contradictions between the applicant's P.I.F. and her oral testimony. Insofar as the "implausibilities" identified by the Board are concerned, I have concluded that the majority of them were reasonably open to the Board on this record. However, I do have a problem with the Board's finding of implausibility with respect to the applicant's evidence that the LTTE "allows people to use escape routes to the south" or "cannot prevent corruption of its own officials". In my view, such a finding is sheer speculation. It is also clearly wrong. It is patently unreasonable to assume without any supporting evidence that the controlling regime in a country is omnipotent or omnipresent and allows people to escape. With this one exception. I have concluded that, overall, the Board's findings on credibility were reasonably open to it on this record. Because this single error by the Board did not go to the heart of its decision, it does not form the basis for judicial intervention [Compare Miranda v. Canada (M.E.I.) (1993), 63 F.T.R. 81 (F.C.T.D.)].
...
Certification
9. Counsel for the applicant suggested four questions for certification pursuant to section 83 of the Immigration Act:
1. If a panel has concerns about the credibility of a claimant, arising from issues unrelated to the merits of the refugee claim, can this be a basis for a refusal on the merits?
...
10. In respect of question no. 1, I agree with respondent's counsel that this question has been settled by existing jurisprudence [See Hilo v. Canada ( M.E.I.) (1991), 15 Imm. L.R. (2d) 199, see also Dan-Ash v. M.E.I. (1988), 93 N.R. 33 at 35].
[48] These observations are particularly helpful when considering how the Member in this case dealt with the Applicants' account of his involvement with the Saturday Mothers gathering in Taksim Square.
Saturday Mothers
[49] The Member stated that she did not accept the Applicant's description of the precipitating event that caused him to flee Turkey. The Applicant stated that, on January 6, 2001, he went to Taksim Square with other members of CED-DER to support the Gathering of the Mothers but found the place almost empty. He explained that because several of the women had been seriously harassed by the police during the previous week the group was too scared to attend. The Member did not accept this statement because the Saturday Mothers had been protesting for five years and knew they were taking a risk, and it was unlikely that such a group would be seriously harassed by the police when they had received international media attention and their aim was to put pressure on the Turkish government to reform its human rights record.
[50] The Applicant contends that it is highly plausible that the mothers would be subject to serious harassment by the Turkish authorities, and that they would have to suspend their activities periodically. The Applicant also notes that the Member did not offer any documentary evidence from the time period of the incident to refute the Applicant's account of events.
[51] I agree with the Applicant that the Member jumped to a number of unfortunate conclusions on this issue:
The panel does not believe that: 1) the participants in a protest group whose raison d'etre was to confront authorities, and who had been doing so for the past five years, would have been sufficiently intimidated by these authorities to discontinue their activities; and 2) the police would "seriously harass" "several of the women" when the group was such an established non-violent protest group that it had received international media attention. Therefore, the panel does not believe that the claimant attended a demonstration in support of the "Gathering of Mothers" on January 6, 2001.
[52] There is no reason why the police could not realistically harass members of a non-violent protest group who are in fact protesting the disappearance of their lost relatives. If the Member thought that international media attention would somehow protect the protesters from police abuse, then she should have referred to specific articles and other evidence to confirm this theory. As in Gregory, supra, I find the conclusions of the Member on this issue patently unreasonable but, when looked at in the context of the whole Decision and the Member's general finding on credibility, it would not on its own be sufficient reason for judicial intervention.
Embellished story regarding media coverage
[53] The Member found that the Applicant had embellished his story regarding the media coverage of the incident where he and other members of CED-DER were arrested when their leader began making a speech. The Member held that the Applicant should have produced a copy of the article he claimed was written about the incident, and that his failure to do so meant that the article was never written. The Applicant submits that he could not reasonably have been expected to foresee what kind of evidence he would need to present at a refugee hearing in Canada before leaving Turkey. Also, having left Turkey, it was not reasonable to expect him to be able to obtain a newspaper article written by a small newspaper in his home town that had been printed many months before. The Applicant submits that it is patently unreasonable for the Member to conclude that the Applicant must somehow obtain a copy of the article in order for it to be real.
[54] As the Respondent argues, considerable deference must be given to a member who has drawn conclusions based on findings made as a result of conducting an oral hearing (Grewal v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No.l 363 (Fed. T.D.). The Member found that this issue, in combination with numerous other inconsistencies, demonstrated a lack of credibility on the part of the Applicant. It is clearly not reasonable to expect a refugee claimant from a war-torn country to arrive in Canada with all the requisite documentation needed to confirm every aspect of his or her claim. However, as the Member indicated, the incident documented in the newspaper article was the precipitating event that led to the Applicant's decision to flee Turkey. Hence, she felt he should have been able to obtain some sort of documentary proof of the incident that led to his arrest and detention, particularly since he knew the owner of the newspaper in question. Even though, at this distance, the Member may appear to be asking a great deal of the Applicant in this regard, in the context of the whole decision and bearing in mind that she actually observed him giving evidence, I cannot find her conclusions were patently unreasonable or warrant judicial intervention on this issue.
Other inconsistencies
[55] The Member found that it was not credible that the Applicant would not remember if he was still employed at the time of his incarceration. The Applicant submits that the differences in dates on this are so minor and insignificant as to be negligible. He submits that it is not common practice for people to memorize the exact date that things happen to them, even when they are significant.
[56] Once again, the inconsistencies in dates contributed, in combination with other inconsistencies, to a finding that the Applicant was not credible. This finding was not patently unreasonable and is not a sufficient basis for judicial interference with the Decision.
Well-foundedness of the Claim - No risk of persecution
[57] In addition to the credibility findings, the Member found that there was no evidence that Alevis are persecuted for their religious beliefs. She also found that the Applicant's activities with CED-DER did not constitute activity of such a nature as to give him a political profile. She did not believe the Applicant had been detained for two days but, even if this had occurred, his political profile was not sufficient enough to make him of interest to the police. She found that the documentary evidence indicated Alevis are not subject to persecution but that those who criticize authority or are socialists or student activists may expect "ruder" treatment from the authorities. The Member found that the Applicant was not a student or an activist, had no political profile and so would not face a serious possibility of persecution if returned to Turkey.
[58] The Applicant submits that there was a wealth of evidence before the Member that the Alevis in Turkey are a religious minority associated with left-wing politics and, as a result, are subjected to harassment by both the government and the religious right. The Applicant notes that an Immigration and Refugee Board (IRB) document dated 14 April, 1999, describes how the situation for Alevis in Turkey remains tense and that they are targets of both Islamist and nationalist harassment, that there have been deliberate killings of Alevis in at least one instance, and mass arrests during demonstrations. The Applicant submits that, as a person who criticized authority by participating in demonstrations against the government, he fits the IRB's own description of Alevis who are subject to persecution.
[59] In my opinion, the Applicant is merely disagreeing with the Member's conclusions on this issue. There is no evidence that the Member failed to consider relevant material or based her conclusions on wrong assumptions. She noted that the Applicant did not appear to engage in political activities with CED-DER, that he did not fit the profile of an Alevi who might be subject to persecution in Turkey, and that his involvement with CED-DER was sporadic and at a low level. Also, the Member noted that Alevis are a very sizeable minority in Turkey, and that being Alevi in itself is not a sufficient reason to fear oppression. All of these conclusions were supported by the evidence and, although there is always scope for disagreement, this does not warrant judicial intervention.
Well-foundedness of the Claim - Threatening phone calls
[60] The Member also found inconsistencies in the Applicant's evidence about threatening phone calls. In his oral evidence, he said he decided to leave Turkey after receiving threatening phone calls. He stated that, upon his release from detention, he went home to Adapazari, stayed for one or two nights, went to Istanbul for three weeks, and then came to North America. The Member found this conflicted with the Applicant's PIF which stated that one week after his release from detention he received threatening phone calls at home and at work.
[61] The Applicant submits that, in his oral evidence, he said that he received the first call approximately a week or so after his release and that he received seven or eight calls altogether, sometimes at home and sometimes at his workplace. The Applicant submits that this evidence is consistent with the information contained in the PIF narrative.
[62] Once again, as the Member indicated, while these inconsistencies and contradictions may not be fundamental to the claim, they are, when looked at with other problem areas, germaine to the Applicant's credibility. The Applicant appeared to be confused regarding the timing of the threatening phone calls. Given the importance of these calls in relation to his claim, it was not patently unreasonable for the Member to have taken these discrepancies into account when assessing his overall credibility as well as the general well-foundedness of his claim.
Well-foundedness of the Claim - Psychological report, danger if removed
[63] The Member dismissed the post-hearing psychological assessment which stated that the Applicant suffered from post-traumatic stress disorder and that the information he provided was valid and reliable. The Member also dismissed the possibility the Applicant would be in danger if deported to Turkey.
[64] The Applicant submits that it is clear that the Member ignored the documentary evidence, including a letter from the Kurdish Human Rights Project and the affidavit of Kerim Yildiz to the effect that failed asylum seekers face a serious risk of detention and torture upon return to Turkey. The Applicant submits that, by ignoring the evidence on both findings, the Member rendered the findings unreasonable and erred in law (Khawaja v. Canada (Minister of Citizenship and Immigration) (1999), 172 FTR 287).
[65] I note that the post-hearing psychological assessment prepared by Dr. Devins, a Consulting and Clinical Psychologist, dated August 22, 2002, indicates the following under the heading "Clinical Impression":
Mr. Yilmaz meets diagnostic criteria for chronic posttraumatic stress disorder (309.81) in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.: DSM-IV). He requires treatment by a mental health professional. I believe that his condition will improve with appropriate care and if he can be guaranteed freedom from the threat of deportation. If refused permission to remain in Canada, his condition will deteriorate. I hope that this report will assist you and the courts in determining the best possible outcome for Mr. Yilmaz.
[66] It is not, of course, patently unreasonable for the Member to consider the psychological assessment in light of her own findings, and to give it little or no weight because it is based upon assumptions that she has concluded are false.
[67] Applicant's counsel places significant emphasis upon the psychological assessment and offers it as an explanation for some of the more confusing aspects of the Applicant's claim. Counsel's strongest point in this regard is that the Member failed to address the most important implication of the assessment: that it explains why the Applicant had so much difficulty in providing a consistent account of his experience and appeared to be confused about even simple issues, such as how he arrived in Canada and whether he had a brother in Canada.
[68] Applicant's counsel points out that the assessment does not go into any great detail about the Applicant's experience in Turkey and the events advanced for a well-founded fear of persecution, other than to say that the author had reviewed the Applicant's PIF. The emphasis is, rather, upon personal observation of the Applicant during the course of the interview and the psychological symptoms he displayed at that time: he became stressed, suffered palpitations, sweated and had difficulty remembering basic questions put to him. Taken together with other symptoms mentioned by the Applicant himself at the interview (nightmares and flashbacks), the Applicant's position is that there was significant evidence of psychological disorder, quite apart from the persecution narrative that formed the basis of his refugee claim.
[69] In rejecting this psychological assessment as being based upon the Applicant's own account of his persecution - an account that the Member had found wanting - the Applicant argues that the Member failed to address the independent evidence of psychological disorder evident in Dr. Devin's assessment and the impact this disorder might have had upon the Applicant's attempts to assemble a coherent persecution narrative. In other words, if the Applicant could not answer simple questions put to him at the assessment interview, surely this explains why he was not in a position to provide consistent answers to the Member on such issues as how he arrived in Canada and whether he had a brother in Canada.
[70] In an able argument, counsel for the Applicant makes the following point, as summarized in his written submissions:
4. It is submitted however that, in the case at bar, the report was adduced after the hearing in order to deal with obvious difficulties that arose during the course of the hearing with respect to the applicant's inability to provide answers to questions. The author of the report suggested that the applicant's difficulties were as a result of his psychological disorder. Thus the report was not adduced in order to corroborate the incidents per se but rather as a means of providing an explanation to the tribunal as to why the applicant had obvious difficulties during the course of the hearing in answering straightforward questions. The tribunal in its reasons for decision acknowledged that the applicant had had difficulty during the course of the hearing in answering questions but dismissed the report because it disbelieved the applicant due to his inconsistent testimony. However, the report was not adduced to prove the testimony but to provide an explanation for the applicant's difficulty. It is submitted that it is here that the tribunal goes in error because it failed to appreciate the reason why the report was adduced into evidence and failed to deal with its import. In the case of Khawaja v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1213, Mr. Justice Rouleau indicated that a tribunal errs in law when it fails to consider a report which is tendered in order to explain an applicant's difficulties in relating traumatic experiences. See Khawaja, para. 8 where the court noted:
In my opinion, the panel was wrong to conclude that the principal claimant was not credible without taking into account and without discussing the content of the psychological report which found severe post-traumatic stress disorder and the plaintiff's difficulties relating the traumatizing events he had experienced, except for negatively arriving at the conclusion that these were facts he had not indicated in his personal information form.
Similarly, C.A. v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1082, underlines the importance of assessing the impact of psychological factors on an applicant's ability to testify. In that case, the Court held that the tribunal erred by failing to consider how post-traumatic stress disorder could influence the applicant's recall of events or demeanour before the tribunal. The court noted at para. 10:
In my view, judicial review is warranted because the Board did not evaluate or consider the second prong of the argument, namely how the PTSD could influence the applicant's recall of events or demeanour before the Board. The psychologist was specifically asked to determine "whether a PTSD has consequences on the capacity of an individual to testify about traumatic events he or she has experienced" (page 21, applicant's Record). In fact, Dr. Louise Gaston indicated in her psychological evaluation that for sufferers of PTSD, "it is natural that the facts are reported with difficulty and even sometimes with contradictions...Moreover, he may respond hesitantly, since the interrogator might be associated to the situation in which he found himself to be the victim of torture."
It is submitted that in the case at bar the tribunal fell into the same error. The report clearly addressed the issue of the claimant's ability to testify. Yet the tribunal failed to address the implications of the report and merely dismissed it because it had found the claimant to be lacking in credibility. The reasoning is circular. The report was submitted to explain why the claimant could have problems giving consistent answers. Yet the report was dismissed precisely because the claimant did not give consistent answers. More of an analysis was required.
[71] The Member's discussion of the psychological assessment in the Decision reads as follows:
Counsel submitted a post-hearing psychological assessment by Dr. Devins on August 23, 2003. In his letter, Dr. Devins based his assessment of posttraumatic stress disorder on the claimant's narrative and personal interview. Dr. Devins stated, "I believe that the information Mr. Yilmaz provided was valid and reliable." The panel does not accept that the incidents actually took place, and therefore does not accept the resultant diagnosis.
[72] In my opinion, it seems clear from Mr. Wasserman's letter of August 23, 2002, that the Member was asked "to take into account Mr. Yilmaz's psychological state as evaluated by Dr. Devins and find that his difficulty in remembering and answering were due not to lack of credibility, but to the stressed state resulting from his experience in Turkey... ."
[73] I am mindful of the fact that Mr. Wasserman raised the Applicant's "psychological state" and its impact upon his answers after the hearing and at a time when, as his letter reveals, he was concerned about a poor showing by the Applicant at the hearing where difficulties in remembering and answering had negatively affected credibility. I am also mindful of the fact that the Applicant is now represented by different counsel who feels that more should have been made of the Applicant's "psychological state" at the time of the hearing and who now wishes to try and correct the fact that it was not. It is also significant that Dr. Devins' post-hearing report differs in telling ways from an earlier report he had prepared dated June 29, 2002.
[74] A post-hearing psychological assessment such as the one submitted by the Applicant in this case is problematic from an evidentiary point of view. It's clear purpose was to correct the obvious credibility problems that had occurred at the hearing, but after the fact.
[75] There is also the issue of the extent to which the examining psychologist is dependant upon the Applicant for the factual basis for the assessment.
[76] In his earlier assessment, dated June 29, 2002, Dr. Devins had expressed considerable doubt about whether the Applicant was really suffering from stress-response symptoms:
Mr. Yilmaz describes significant stress-response symptoms and, if valid, he requires treatment by a mental health professional. Such symptoms would improve with appropriate care especially if he were free from the threat of deportation. If returned to Turkey, his condition would deteriorate. Inconsistencies between self-report and non-verbal components raised doubts, however, about the validity of Mr. Yilmaz's presentation.
I am sorry that I cannot provide a more definitive assessment. I hope nevertheless that this report will assist you and the courts in determining the best possible outcome for Mr. Yilmaz.
[77] Notwithstanding these doubts, in the assessment done after the hearing Dr. Devins is adamant that "I believe that the information Mr. Yilmaz [the Applicant] provided was valid and reliable." At this point, Dr. Devins has obviously become a convert to the Applicant's version of what has happened to him.
[78] Nor does Dr. Devins consider whether the symptoms he now observes in the Applicant might have something to do with the Applicant's knowledge that he has performed poorly at his refugee hearing and needs to make a convincing case of post-traumatic stress disorder in order to overcome the obvious credibility concerns raised by the Member.
[79] Yet, nevertheless, Dr. Devins, in his August 22, 2002, assessment does make it clear that the Applicant shows symptoms that "corroborate that [his] experiences in Turkey were traumatic and that their after-effects continue to exert a deleterious impact." Perhaps most convincing is Dr. Devins' reference to various "cognitive difficulties" that he says "are common consequences of the disorganizing effects of traumatic stress." He is clear that these cognitive difficulties "reflect the severity of [the Applicant's] chronic stress-response symptoms. They do not indicate an attempt to evade or obfuscate."
[80] In the Decision, the Member "does not accept the resultant diagnosis" because the Member "does not accept that the incidents actually took place ..." In my opinion, bearing in mind the reservations already expressed about Dr. Devins' final diagnosis and the way it was arrived at, the Member could have rejected it for valid reasons. But the only reason the Member gives for rejecting it is that she did not accept that the events actually took place. In my opinion, this does miss the whole point of what the Applicant was trying to show by submitting a post-hearing psychological assessment. The Member clearly closed her mind to the "cognitive difficulties" referred to in the assessment and whether they could account for the obvious problems that the Applicant had had in constructing a convincing persecution narrative.
[81] All in all, I think it would be unsafe to overlook this failure on the part of the Member. The Respondent argues that it doesn't matter because the Member found against the Applicant on the alternative ground of a lack of well-foundedness of the claim. The difficulty with this is that, in reading the Decision, the extent to which the lack of well-foundedness ground is interconnected with credibility concerns is not clear. After discussing the documentary evidence and the Applicant's profile, the Member then goes on to talk about contradictions over threatening phone calls which may or may not be part of her discussion on well-groundedness, but they are clearly credibility issues.
[82] The lack of clarity in the Decision on this issue convinces me that it would not be safe to allow the Decision to stand on that ground alone and that the matter should be referred back for re-determination.
[83] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
"James Russell"
JFC
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5313-02
STYLE OF CAUSE: MEHMET YILMAZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, SEPTEMBER 8, 2003
REASONS FOR ORDER BY: RUSSELL J.
DATED: DECEMBER 18, 2003
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Mr. Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Mr. Lorne Waldman
Waldman & Associates
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030908
Docket: IMM-5313-02
BETWEEN:
MEHMET YILMAZ
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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