Date: 20030828
Docket: IMM-859-03
Citation: 2003 FC 1009
Ottawa, Ontario, this 28th day of August, 2003
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
IBRAHIM USTAOGLU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Ustaoglu claimed refugee status on the basis of i) his religion and his membership in the Fethullah Gulem movement and ii) as a conscientious objector who refuses to serve in the Turkish army because of atrocities committed against the Kurds in southeastern Turkey. He relied on sections 96 and 97 of the Immigration and Refugee Protection Act, 2001 SCC c.27 (IRPA). The Refugee Protection Division (the Board) rejected his claim on January 16, 2003.
[2] Given that I find that the Board's decision with respect to the alleged risk of military conscription contains a reviewable error that requires a reconsideration of the claim by a differently constituted panel, I will not comment on the findings relating to the claim based on religion and membership in the Fethullah Gulem movement.
[3] In my analysis, I have applied the standard of review recently described in Harb v. Canada (Minister of Citizenship and Immigration), _2003_ FCA 39, [2003] F.C.J. No. 108 (Q.L.), at para. 14.
[4] In its brief decision, the Board did not make any credibility finding. It simply rejected Mr. Ustaoglu's claim based on a fear of military conscription because it found that he had not established his subjective fear of persecution.
[5] That conclusion was itself based to a large extent on the Board's finding that the claimant had travelled to Malaysia, Malta and Russia[1] and returned to Turkey despite the alleged risk of military conscription without seeking protection in these countries or without taking steps to move to another country where he could safely launch a refugee claim. This behaviour was found to be inconsistent with a subjective fear of persecution.
[6] However, Mr. Ustaoglu had provided specific explanations as to why on those three occasions, he had returned to Turkey. This evidence is not mentioned at all in the Board's decision.
[7] The Court agrees with the respondent that the Board is the master of its own house. It could discard this evidence as non-credible or implausible. It could still conclude to a lack of subjective fear despite the explanations given by the applicant because, for example, of the cumulative effect or weight given to other evidence.
[8] However, considering that this evidence was at the heart of the claim and was central to the Board's decision, I agree with the applicant that the Board could not reject or disregard his testimony without mentioning it in its reasons and explaining how it dealt with it.
[9] In coming to this conclusion, I want to make it clear that I agree with the respondent that the Board is not required to refer to every piece of evidence that is contrary to its findings. But, as mentioned by Justice Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (Q.L.), at para. 17, there comes a point where a Court will infer from the silence of the Board that a finding was made "without regard to the evidence" and I find that this is such a case.
[10] Because the error relates to an issue central to the decision of the Board, the Board's decision must be quashed.
[11] I note that s.97 requires a separate analysis when the claim under s.96 is rejected simply because a subjective fear has not been established given that such fear is not an essential element of a claim under s.97.
[12] The parties did not raise any question for certification at the hearing and the Court finds that this matter raises no question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application is granted. The decision of the Board dated January 16, 2003 is quashed and the matter shall be remitted to a differently constituted panel for determination.
2.No question is certified.
"Johanne Gauthier" Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-859-03
STYLE OF CAUSE:Ibrahim Ustaoglu v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 26, 2003
REASONS FOR ORDER AND ORDER: Gauthier, J.
DATED: August 28, 2003
APPEARANCES:
Mr. Mordechai Wasserman FOR APPLICANT
Mr. Tamrat Gebeyehu FOR RESPONDENT
SOLICITORS OF RECORD:
Mordechai Wasserman FOR APPLICANT
Barrister and Solicitor
31-489 College Street
Toronto, Ontario M5H 2R3
Morris RosenbergFOR RESPONDENT
Department of Justice
Toronto, Ontario M5X 1K6
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