Date: 20031023
Docket: IMM-5345-02
Citation: 2003 FC 1243
Toronto, Ontario, October 23rd, 2003
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
ABDULLAH OYMAK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Refugee Protection Division of the Immigration and Refugee Board (the Tribunal) in its October 8th, 2002 decision refused to recognize Abdullah Oymak (the Applicant) as a Convention refugee. Mr. Oymak is a 23 year old, Turkish citizen of Kurdish origin and of Alevi faith.
[2] The Tribunal, whose reasons for decision are written in French as that was the language of the hearing, did not believe his story of persecution based on cumulative harassment centered on the following allegations: (1) a May 1st, 1995 arrest along with seven of his friends for his participation in a meeting where criticism of the authorities was expressed. He was released two days after but threaten with death should he resume his activities; (2) a beating which occurred on January 1st, 2000 during his military service at the hands of his commanding officer because he was caught consuming alcohol with his friend, whose violence intensified after he disclosed he was a Alevi Kurd; and (3) physical abuse at the hands of the police when he tried to prevent the arrest of his brother.
[3] The reason the Tribunal did not believe the Applicant's story is based on: (1) two contradictions between the point of entry notes (POE) and his personal information from PIF and testimony; (2) its finding that if he had been targeted by the police he would not have been issued a passport, a conclusion based on its taking judicial notice of the fact passports in Turkey are issued only after extensive investigation and; (3) residence for seven months in the United States without making a refugee claim.
[4] It is said, as for the contradictions the Applicant indicated in his POE, he had never been arrested in Turkey contradicting his PIF and testimony. Second, during his POE interview, the gist of his fear of return was expressed in terms of discrimination and economic disadvantage as well as pressure from the police in contrast to physical attacks on him during testimony and on his PIF.
[5] The jurisprudence of this Court holds that credibility findings are at the essence of the tribunal's jurisdiction and can only be set aside if reached in a perverse or capricious manner or without regard to the evidence.
[6] The decisions of this Court have long recognized that in assessing credibility one technique or tools is the existence of contradictions between a POE and other evidence presented as well as the fact of not making a refugee claim in a country such as the United States.
[7] Counsel for the Applicant argued that the Tribunal erred in not accepting the Applicant's explanations for the contradictions. The Applicant testified the treatment he received when he and 11 other refugee claimants from Turkey arrived at the same time in a minibus at Lacolle, Québec to make refugee claims. The result of this sudden and large influx was that they were detained before the POE interview for one or two days and handcuffed when being transported to the place awaiting that interview. He testified this treatment frightened him to the point he could not think clearly during the POE interview and reminded him of what he had suffered in Turkey.
[8] He explained the delay coming to Canada by the need to work in the United States in order to earn money to come to Canada and the one month sickness visited on one the minibus of the group.
[9] I reviewed the transcript of the hearing and considered the reasons why the Tribunal rejected the explanations. In my view, the Tribunal's rejection of the explanations was neither capricious nor perverse (unreasonable) to the point warranting this Court's intervention. In essence, the Tribunal weighted the explanations against the contradictions on the delay which is what its mandate is.
[10] Moreover, counsel for the Applicant did not rebut to my satisfaction the view expressed by the POE Officer concerning the Applicant's fear being essentially related to economic discrimination.
[11] Counsel for the Respondent conceded the Tribunal erred in taking judicial notice of how a person's background was investigated before a passport was issued in Turkey. If that had been the central element for rejecting the Applicant's claim, the Tribunal's decision would have been set aside. It is clear to me, however, that the Tribunal's reference to the passport issue was supplementary, separate and independent from what it really based its decision on the non belief of his story based on the contradictions and the delay.
ORDER
THIS COURT ORDERS that this judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5345-02
STYLE OF CAUSE: ABDULLAH OYMAK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 21, 2003
REASONS FOR ORDER
AND ORDER BY: LEMIEUX J.
DATED: OCTOBER 23, 2003
APPEARANCES: Ms. Brena Parnes
FOR APPLICANT
Mr. Stephen Jarvis
FOR RESPONDENT
SOLICITORS OF RECORD: Waldman and Associates
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20031023
Docket: IMM-5345-02
BETWEEN:
ABDULLAH OYMAK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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