Date: 20031014
Docket: IMM-5968-02
Citation: 2003 FC 1190
BETWEEN:
SULEYMAN FIDAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
von FINCKENSTEIN J.
[1] This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the " Board"), dated October 30, 2002, dismissing the applicant's claim for refugee protection status.
BACKGROUND
[2] The Applicant is a 29 year-old man from Pazarcik, Turkey. The town is composed of a Turkish majority and a Kurdish minority and has been the site of increasing conflict between the two ethnic groups.
[3] During the late 1990s, the applicant was detained and tortured by Turkish government officials on at least 4 occasions due to his ethnicity and his involvement with the Kurdish HADEP party. In 2001, he was informed that the police wished to arrest him again and he fled the country, eventually arriving in Canada, where he claimed Convention Refugee status. While awaiting his hearing before the Board, the applicant was diagnosed with post-traumatic stress disorder.
DECISION BELOW
[4] The Board found a lack of evidence that the applicant was a Kurd. For example, he did not speak Kurdish, had provided no photos of his family in traditional dress and failed to provide what was considered a reliable letter from the HADEP stating that he was a member.
[5] Moreover, the Board was unwilling to rely upon the applicant's story because it found him not to be a credible witness. It found that he had provided inconsistent or implausible explanations as to why he was targeted by Turkish security forces in the late 1990s and why he had failed to attend a Kurdish community centre once in Canada. In addition, it noted that the applicant had stated in testimony but not on his personal information form that he had been a member of the HADEP.
[6] The Board concluded its reasons with an examination of a psychological report submitted by the applicant:
The panel also considered the content of the psychological report, submitted by the claimant. The panel does not have any reason to question Dr. Devin's findings that the claimant suffers from chronic posttraumatic stress disorder. However, in light of our credibility findings, which were stated above, I am not satisfied, that the claimant's mental disorder has any relevance to his well-founded fear of persecution.
[7] Although it accepted the seriousness of the applicant's condition, the Board was not convinced that the applicant was a Kurd and that he would face persecution due to his ethnic and religious background if returned to Turkey.
ISSUES
[8] The applicant raises two issues:
1. Did the Board err by failing to consider the applicant's medical condition when making its credibility finding?
2. Did the Board err in the substance of its credibility finding?
ANALYSIS
[9] In the report filed with the Board, the applicant's psychologist made the following conclusion:
Mr. Fidan experiences headaches "almost every day:..... Other stress-related symptoms include loss of appetite..., lack of energy, and impaired concentration and memory. Cognitive effects.... are pronounced. Intrusive ideation.... compromised concentration. At times, Mr. Fidan's mind seems to go blank. ...As indicated, concentration problems were significant during the interview. Should similar difficulties arise during the Immigration Hearing (eg. failure to respond, difficulty comprehending, requests to repeat a question), it will be important to understand that they respect the disorganizing effects of traumatic stress. It is unlikely that they will reflect an attempt to obfuscate or evade.
[10] The Applicant argues that the Board failed to consider this aspect of the psychologist's report when it made its negative credibility finding. In the alternative, it is argued that the Board was obliged to discuss the weight which it had given to the report when making its credibility finding. In reply, the Respondent submits that the Board's reasons were sufficient because they indicated that the report had considered and because the Board was not under an obligation to provide a discussion of each piece of evidence with which it was presented.
[11] In C.A. v. Canada (M.C.I.), [1997] F.C.J. No. 1082, this Court considered a similar set of circumstances. In that case, the Board had accepted that the applicant was suffering from post-traumatic stress disorder. However, it failed to assess the impact that the condition might have upon the applicant's ability to recall events and upon his overall demeanor when testifying. At para. 12 of the judgment, Teitelbaum, J. concluded that:
The Board's assessment of credibility in this instance is linked to its consideration of the psychological and medical evidence. Certainly, this is not the case of a Board "ignor[ing]" the evidence as occurred in Galindo v. Minister of Employment and Immigration, [1981] 2 F.C. 781 (F.C.A.) The Board did in fact refer to the medical evidence of PTSD. However, it failed to give this evidence the proper weight or recognition on the crucial issue of credibility. Admittedly, there is a presumption that a decision-maker takes into account all of the evidence provided and that there is no need to explicitly refer to each piece of evidence: (Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317).... However, in this instance, the Board in fact mischaracterized the medical evidence because it did not highlight the effects to the PTSD on the applicant's credibility when credibility was the linchpin of its decision
[12] In this case, credibility was also the "linchpin" to the Board's decision. Nonetheless, the Board failed to indicate, how, if at all, the psychological report was considered when making its credibility finding. The Board was obliged to do more than merely state that it had "considered" the report. It was obliged to provide some meaningful discussion as to how it had taken account of the applicant's serious medical condition before it made its negative credibility finding. The failure to do so in this case constitutes a reviewable error and justifies the matter being returned to a newly appointed Board.
[13] In light of my finding with regards to the psychological report, there is no need for me to address the issue of the credibility finding itself.
[14] Accordingly, the appeal is allowed and the matter is referred back to the Board for reconsideration by another panel.
"K. von Finckenstein"
JUDGE
Ottawa, Ontario
October 14, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5968-02
STYLE OF CAUSE: SULEYMAN FIDAN
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 8, 2003
REASONS FOR ORDER : von FINCKENSTEIN J.
DATED: OCTOBER 14, 2003
APPEARANCES:
Mr. Lorne Waldman FOR APPLICANT
Mr. Lorne McClenaghan FOR RESPONDENT
SOLICITORS OF RECORD:
Jackman, Waldman & Associates FOR APPLICANT
281 Eglinton Avenue East
Toronto, ON M4P 1L3
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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