Date: 20031010
Docket: IMM-4617-02
Citation: 2003 FC 1187
Ottawa, Ontario, this 10th day of October, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
SUNAY PAMUK and TURKAN PAMUK
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Sunay Pamuk and Mrs. Turkan Pamuk (the "Applicants") are husband and wife. They were each born in Bulgaria and each has a background of Turkish ethnicity. The Applicants obtained Turkish citizenship after moving to Turkey in 1989; they are also Bulgarian citizens.
[2] Mrs. Pamuk, the principal Applicant, claimed Convention refugee status in Canada on the basis of her religion, that is Alevi, and on the basis of a particular social group, that is a Turk born in Bulgaria. Her husband is a Sunni Muslim. He based his claim for Convention refugee status on his wife's claim.
[3] The Applicants arrived in Canada on December 16, 2000 and made their Convention refugee claims on the same day. The hearing was held on July 22, 2002.
[4] In its decision, the Board found that the Applicants experiences amounted to discrimination and not persecution. The Board also found their account to be non-credible and that there was neither a subjective nor objective well-founded basis for their claimed fear of persecution.
[5] For the same reasons, the Board concluded that there was no serious possibility that the Applicants would be subjected to torture, risk to life or cruel or unusual punishment. Accordingly, they were not persons in need of protection.
[6] Having heard the arguments advanced by the parties and reviewed the material filed, I am of the opinion that this application for judicial review should be allowed, on the basis that the Board dealt with the Applicants unfairly at their hearing and then drew a negative inference from such unfair procedure.
[7] For example, the Board referred to an "on-going case" between the Alevi organization to which the female Applicant claimed to have belonged and the Turkish State. The Board did not identify which case or conflict it was referring to when it put this question to that Applicant. It then relied upon her lack of knowledge about this "case" as a reason to doubt her membership in the Alevi organization.
[8] In its reasons, the Board states that it has "specialized knowledge" on Turkey and Haci Bektashi. At the hearing, the Board did not refer the Applicant to the "case" it was relying on. In my opinion, the result was that the Board did not apply its specialized knowledge in a fair manner so that the female Applicant was prevented from responding in an informed way.
[9] Section 170(I) of the Immigration and Refugee Protection Act, R.S.C. 2001, c.27 ("IRPA") states as follows:
| The Refugee Protection Division, in any proceeding before it,
...
(i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge.
|
|
Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés_:
...
i) peut admettre d'office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation.
|
[10] Rule 18 of the Refugee Protection Rules provides as follows:
| Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.
|
|
Avant d'utiliser un renseignement ou une opinion qui est du ressort de sa spécialisation, la Section en avise le demandeur d'asile ou la personne protégée et le ministre - si celui-ci est présent à l'audience - et leur donne la possibilité de :
a) faire des observations sur la fiabilité et l'utilisation du renseignement ou de l'opinion;
b) fournir des éléments de preuve à l'appui de leurs observations.
|
[11] The Respondent contends that the Board complied with the statutory requirements of section 170(I) of IRPA and Rule 18 in its use of specialized knowledge in this case. I disagree. A review of the transcript shows that the Board did not provide the Applicants with sufficient information about what is described in its reasons as an "ongoing case" and a "well publicized" conflict between the Alevi organization and the Turkish state. The transcript, at pages 266-267, reads as follows:
PRESIDING MEMBER: What's the current status of the group?
CLAIMANT # 2 [the female Applicant]: Now I do not know what the status is.
PRESIDING MEMBER: Why wouldn't you know? You were a member of the group?
CLAIMANT #2: Because I do not know whether the [C]em house is closed or not. If it is still open or not. That's why.
PRESIDING MEMBER: Is there a case going on against it in Turkey?
CLAIMANT # 2: I don't have information about that.
PRESIDING MEMBER: I know from my specialised knowledge that a case may be going on against it and you haven't heard that?
CLAIMANT # 2: Because I could not speak with anyone. That's why.
[12] In my opinion, this does not comply with Rule 18 of the RPD Rules. The Board did not provide the Applicants with sufficient information so that they could reasonably have an understanding of what "case" the Board had in mind.
[13] Further, this Court is left to speculate what "case" the Board is speaking of and whether it was in fact so broadly publicized. These factors, if known, would assist the Court in determining whether the Board's adverse credibility finding relative to the female Applicant's lack of knowledge of the matter, was reasonably supported by the evidence.
[14] In the result, this application for judicial review is allowed and the matter is remitted to the Board for redetermination before a differently constituted panel. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Board for redetermination. There is no question for certification.
"E. Heneghan"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4617-02
STYLE OF CAUSE: SUNAY PAMUK ET AL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 26, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: OCTOBER 10, 2003
APPEARANCES BY: Mr. Michael Crane
For the Applicant
Ms. Bridget A. O'Leary
For the Respondent
SOLICITORS OF RECORD:
Mr. Michael Crane
166 Pearl St, Suite 100
Toronto, Ontario
M5H 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20031010
Docket: IMM-4617-02
BETWEEN:
SUNAY PAMUK ET AL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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