Date: 20050224
Docket: IMM-10401-03
Citation: 2005 FC 276
Ottawa, Ontario, February 24, 2005
Present: The Chief Justice
BETWEEN:
ISHAK KARLI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a 41-year old citizen of Turkey. He claims to have experienced severe discrimination throughout his life in Turkey owing to his Alevi religion and Laz ethnicity. He is also a member of a family that he claims is involved in a blood feud with Ahmet Bektas, a powerful local businessman. In 1987, the applicant's brother was convicted for having killed the brother of Mr. Bektas during a fight. In 1993, the applicant married and the marriage was strongly opposed by Mr. Bektas, who wanted the applicant's spouse himself. The applicant claims that Mr. Bektas threatened him with death on a number of occasions, both in person and through intermediaries.
[2] In July 1999, after allegedly being threatened, the applicant left for the United States where he stayed for six months. He returned to Turkey for three months to care for his wife who was apparently depressed. In April 2000, he returned to the United States. Three months later, he went back to Turkey to assist his spouse. While there, he was allegedly arrested on suspicion of leftist political activities as a result of information provided by Mr. Bektas. Between August and October 2000, he made another return trip between Turkey and the United States. He remained in Turkey until April 2001 when he claimed refugee status in Canada after travelling here via the United States.
[3] In her negative decision, the member of the Refugee Protection Division stated her reasons for not believing the applicant's allegations. She did not accept that the applicant had been persecuted by Mr. Bektas. She found that the applicant's trips to the United States were for employment reasons and not based on any fear of persecution. She did not believe the applicant's claims of political persecution. She questioned whether the applicant was active politically. She found that his continual re-availment undermined the credibility of any subjective fear of persecution.
[4] The applicant seeks judicial review of a member's decision on two principal grounds. First, he states that it was inappropriate to have appointed a designated representative and, second, he argues that the member did not properly assess the medical evidence.
[5] On the first day of the refugee hearing, the member focussed solely on the applicant's ability to understand questions and to provide answers concerning his claim. In doing so, the member had before her medical reports concerning the applicant's moderate cognitive impairment.
[6] In summarizing this first session, the member found that the applicant could understand the questions and provide answers. However, both she and the applicant's counsel felt that the applicant's interests could be better served if a designated representative were appointed. The hearing was adjourned to allow the counsel to identify a designate representative.
[7] Some months later, the hearing resumed after the applicant's counsel had identified a designated representative. The individual was a lawyer but acted in his personal capacity. He understood that his role was to assist the applicant during the hearing and assess his answers on the basis of the information he had obtained from the applicant prior to the hearing. He also saw his role as assisting the applicant to present clear testimony in as coherent a manner as possible.
[8] Subsection 167(2) of the Immigration and Refugee Protection Act provides for the appointment of a designated representative:
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(2) If a person who is the subject of proceedings is under 18 years of age or unable, in the opinion of the applicable Division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person.
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(2) Est commis d'office un représentant à l'intéressé qui n'a pas dix-huit ans ou n'est pas, selon la section, en mesure de comprendre la nature de la procédure.
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[9] It was the position of both counsel that the member erred in appointing a designated representative. In their view, unless she concluded that the applicant was unable "to appreciate the nature of the proceedings", within the meaning of subsection 167(2), there was no statutory authority to appoint a designated representative. No such finding was made. To the contrary, the member concluded that the applicant could participate.
[10] In my view, even if it was wrong in law to have appointed a designated representative, and I choose not to decide the issue in this case, any such error was immaterial. It was prudent, it seems to me, for both the member and counsel to have wanted someone available to the applicant to assist him, if necessary, prior to and during the hearing in view of the medical reports concerning his mental health.
[11] Cognitive impairment varies. Whether a refugee claimant is unable to appreciate the nature of the proceedings may not be clear cut. The commentary under section 15 of the Refugee Protection Rules suggests that:
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...the role of the designated representative will vary, depending on the level of understanding of the minor or incompetent person. ... Incompetent persons may also have some ability to participate in making decisions, depending on the type of decision that has to be made nad the nature and severity of their disorder or disability.
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Rôle adapté aux circonstances
...Son rôle varie cependant en fonction du niveau de comprébhension de l'intéressé.... Les personnes incapables ont aussi une certaine aptitude à participer aux décisions, selon le type de décision à prendre et selon la nature et la gravité de leur maladie ou de leur incapacité.
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It seems to me the decision to appoint a designated representative in this case was both prudent and consistent with the commentary.
[12] As I understand the applicant's second argument, the Tribunal member erred in her appreciation of the two reports from a psychiatrist and a further report from a psychologist. I do not agree.
[13] In my view, the member set out her reasons for her negative finding of credibility in clear and unmistakable terms. Her thorough questioning of the applicant on the first day of the hearing to test his ability to participate in the process was precipitated by her earlier review of the medical reports. She allowed the designated representative to assist the claimant during the hearing by repeating questions, when necessary, in more direct and simpler terms. In the two penultimate paragraphs of her decision dealing with the psychiatric and psychological assessments, she found that these medical reports did not affect her negative finding of credibility.
[14] In my view, this conclusion was open to her. She was alert and sensitive to the medical reports prior to and throughout the hearing. She knew the applicant had cognitive challenges. On my review of the transcript, her negative finding of credibility was one she was able to make, even taking into account the medical reports. While it might have been preferable that she not use the phrase "I do not find that the resulting diagnosis would apply", this choice of language does not reveal any reviewable error when viewed against the whole of the tribunal record.
[15] For these reasons, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question and none will be certified.
ORDER
This application for judicial review is dismissed. No question of serious importance is certified.
"Allan Lutfy"
C.J.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-10401-03
STYLE OF CAUSE: Ishak Karli v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 1, 2004
REASONS FOR ORDER BY: Chief Justice Allan Lutfy
DATED: February 24, 2005
APPEARANCES BY:
Mr. Lorne Waldman For the Applicant
Mr. Lorne McClenaghan For the Respondent
SOLICITORS OF RECORD:
Mr. Lorne Waldman For the Applicant
416-482-6501
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
416-973-2300
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