Date: 20040202
Docket: IMM-5052-02
Citation: 2004 FC 173
Ottawa, Ontario, this 2nd day of February, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
CENGIZ ILKER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, in respect of the decision of the Immigration and Refugee Board (Refugee Protection Division) (the "Board"), dated September 18, 2002, wherein it was determined that the applicant was not a Convention refugee and not a person in need of protection.
[2] The applicant requests an order quashing the decision that the applicant is not a Convention refugee and is not a person in need of protection and an order remitting the matter back for a redetermination by a differently constituted panel.
Background
Introduction
[3] The applicant is a citizen of Turkey, who claims Convention refugee status because of his ethnicity and religion, namely Laz Alevi, and perceived political opinion, namely his involvement in Emek Gencligi, the youth branch of EMEP (Labour Party). The applicant alleges that the authorities are looking for him because he protested against the "F" type prisons in Turkey. He also claims to be a person in need of protection from danger of torture, or risk to life, or cruel and unusual punishment if he returns to Turkey.
Reasons of the Immigration and Refugee Board (Refugee Protection Division)
[4] A hearing was held on August 26, 2002. By reasons dated September 18, 2002, the Board determined the applicant not to be a Convention refugee and not a person in need of protection. The Board found the applicant not to be credible and his fear not well-founded.
[5] The Board found the applicant was vague and evasive through the course of the hearing.
[6] The Board found that Alevis are free to practice their religion in Turkey and that Sunnis cannot attack them with the impunity ascribed to them by the applicant.
[7] The Board found that the applicant was having considerable difficulty in explaining his alleged position with respect to the party he was supposedly involved in. On the one hand, the applicant wished the Board to believe that he was targeted by the authorities because of the extent of his activities with EMEP, while on the other, he attributed his lack of membership in EMEP to his fear of the authorities. The Board found the applicant's incompatible and belaboured responses indicated his alleged activities were, at best, insignificant.
[8] In April 1998, the applicant alleged that he was questioned and tortured by the police after trying to put up May Day posters on behalf of EMEP. He also stated that he and his Laz friends tried to form an association, but could not. The Board found the applicant was embellishing his testimony to enhance his claim as significant details were not contained in his Personal Information Form ("PIF") narrative.
[9] In July 1999, the applicant alleges that he was detained and questioned by the police and asked to become a spy for them. In his oral testimony, the applicant testified that after the July 1999 incident and before another incident in May 2000, the police left him alone. However, in his PIF narrative he stated that the police did not leave him alone during this time frame. The applicant's explanation was that he did not have any contact with the police, but knew he was being watched. The Board found it incredulous that the applicant was still able to continue going to EMEP meetings. The Board found the inconsistent and implausible evidence detracted from the applicant's credibility and indicated that the alleged July 1999 incident did not occur.
[10] The applicant stated that EMEP was a legal organization, but claimed that the police believe the Revolutionary Communist Party of Turkey ("TDKP") was a wing of EMEP. The documentary evidence indicated that TDKP is an illegal organization. The Board found that it did not make sense that EMEP, a legal organization, would be considered to encompass an illegal wing such as the TDKP.
[11] The applicant claimed that in May 2000, he marched in the May Day parade with an EMEP contingent. According to the applicant, although the parade was uneventful, afterwards he was picked up by the police, questioned about TDKP and EMEP, asked to be a police spy, beaten and tortured, and released the next day with a warning.
[12] The Board did not find it believable that the authorities would allow the May Day parade to proceed unimpeded and then arrest the applicant after the march was over. Further, the Board did not find it credible that the applicant would be released at all despite his actions, which were in contravention of several orders from the police to refrain from participating in EMEP activities.
[13] In August 2000, the applicant was allegedly distributing flyers with his girlfriend about "F" type prisons. She was arrested, but the applicant managed to escape. He claims he got in touch with an agent who arranged for a job on a ship, a passport and seaman's book. Based on documentary evidence, the Board found that if the applicant was wanted by the authorities, he would not have been able to exit in the manner in which he alleges. The Board found that this further substantiated that the applicant is not of any interest to the authorities and negates the veracity of the alleged event which made him flee.
[14] The Board found that the applicant's failure to make a claim in the United States and in waiting 20 days after arrival in Canada to make a claim indicated a lack of subjective fear and further negated the applicant's credibility that he is wanted by Turkish authorities.
[15] As the Board found the applicant was not credible, it did not give weight to the psychological report that was submitted.
[16] This is the judicial review of the decision of the Board finding the applicant not to be a Convention refugee and not a person in need of protection.
Applicant's Submissions
[17] The applicant submits that the tribunal erred in law with respect to its finding that the evidence of the applicant was not credible.
[18] The applicant submits that a review of the transcript fails to justify the Board's finding that the applicant was evasive and vague.
[19] The applicant submits that the Board's finding that the documentary evidence did not support the fact the applicant would be at risk due to the fact that he was an Alevi is nonsensical and unreasonable as the Board previously noted that the applicant's claim went beyond his being an Alevi and was related to his perceived political opinion.
[20] The applicant submits that there was not any confusion in his testimony as to his relationship with EMEP. It is submitted that he clearly stated that he supported EMEP, but did not become a member for a number of reasons, including the fact that he was afraid because members of the party were oppressed by authorities more than sympathizers or supporters.
[21] The applicant submits that the Board's finding that the applicant embellished his evidence concerning the 1998 detention is also patently unreasonable.
[22] The applicant submits the Board erred in rejecting the applicant's explanation as to the inconsistency between his oral testimony and his PIF in terms of whether the police left him alone after the 1999 incident. It is submitted that this was unreasonable given the difficulties of testifying through an interpreter.
[23] The applicant submits the Board erred in suggesting that it was implausible that the applicant would continue his activity after his arrest and the accompanying threats.
[24] The applicant submits that he did not say that EMEP supported TDKP, but rather that the police considered EMEP a legal front or wing of TDKP.
[25] The applicant submits that the Board's finding that it was implausible that the authorities would allow the May 2000 May Day march to proceed, but would arrest the applicant after it was over is patently unreasonable as the Board ignored evidence contained in the applicant's PIF that authorities wanted to question him and renew their offer to him to be a spy.
[26] The applicant submits the Board's finding that the applicant's account of the August 2000 incident was implausible because he could not have left the country due to border controls at the airport is not sustainable as the applicant left by ship.
[27] The applicant submits that the Board's ignored the applicant's evidence that he did not make a claim in the United States as he was unable to leave the ship at the point.
Respondent's Submissions
[28] The respondent submits the Board did not base its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it.
[29] The respondent submits that the Board did not err in finding that there was insufficient, credible or trustworthy evidence that the applicant has a well-founded fear of persecution on a Convention ground or that he is a person in need of protection.
[30] The respondent denies that the Board's finding with respect to the applicant's demeanour cannot be sustained.
[31] The respondent submits the documentary evidence contradicted the applicant's allegations of harassment based on his religion. It is submitted that the applicant's references to documentary evidence relating to political activists are irrelevant and misplaced.
[32] The respondent submits the Board's analysis that the applicant was embellishing his story and attempting to portray himself as a significant political activist to justify his claim for protection on the ground of political opinion is rational.
[33] The respondent submits the Board did not err in regard to its finding that the applicant was embellishing his claim in oral evidence.
[34] The respondent submits that the Board's rejection of the applicant's explanation as to the inconsistency between his oral testimony and his PIF was not perverse or capricious, but within its jurisdiction as the trier of fact.
[35] The respondent submits that it was reasonable and proper for the Board to decide adversely with respect to a claimant's credibility on the basis that it is simply implausible. It is submitted that the inference drawn by the tribunal was not with respect to the applicant's actions, but rather with respect to his ability to continue to attend meetings without interference from the police.
[36] The respondent submits that it is reasonable to have expected the documentary evidence to have included some reference to the illegal nature of EMEP if, as asserted by the applicant, it was a wing of TDKP. It is submitted that the applicant has not referred to any documentary evidence before the Board that corroborates the assertion that EMEP is considered to be a front for TDKP.
[37] The respondent submits the Board's finding that it was implausible that the authorities would allow the march to proceed, but would arrest the applicant afterwards was reasonable. In the alternative, it is submitted that such a finding is not central to the Board's decision.
[38] The respondent denies that the Board improperly considered the documentary evidence with respect to border controls, since the document referred to was not restricted to airports and discussed security at all national frontiers.
[39] The respondent submits that the Board is entitled to consider the applicant's delay in claiming refugee status while in Canada.
[40] Issue
Did the Board err in law because it made perverse credibility findings with respect to the evidence before it?
Relevant Statutory Provisions
[41] The relevant sections of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), state as follows:
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96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
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96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
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(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
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(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d'une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
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Analysis and Decision
[42] The Board in arriving at its decision, made a number of credibility findings. I will deal with each of these findings.
[43] Applicant Vague and Evasive
The Board found that the applicant was vague and evasive. Since the Board had an opportunity to observe the applicant at the hearing, I am of the view that after reviewing the transcript, I have no basis on which to overrule the Board on this finding.
[44] Documentary Evidence and the Applicant's Religion and Perceived Political Opinion
The applicant based his claim "on being a Laz Alevi, a leftist and a supporter of EMEP (Labour Party)". The Board examined the documentary evidence and wrote at page 2 of its reasons that "the Sunnis cannot attack the Alevis with the impunity ascribed to them by the claimant, and highlights that Alevis are free to practice their religion".
[45] The applicant submits that this finding is nonsensical as his claim goes beyond his being an Alevi, but also relates to his perceived political opinion. The applicant also submits that the documentary evidence clearly establishes that perceived political activists are at risk.
[46] I tend to agree with the respondent that this credibility finding of the Board was in regard to the applicant's allegations of harassment based on religion and that such a credibility finding was open to the Board to make. Later on in its reasons, the Board addresses the applicant's claim based on his perceived political opinion as a supporter of EMEP.
[47] The Applicant's Involvement with EMEP
The applicant testified that he was not a member of the EMEP but rather a sympathizer. At page 3 of its decision, the Board wrote:
The panel finds the claimant was having considerable difficulty in explaining his alleged position with respect to the party he was supposedly involved in. On one hand he would like the panel to believe that he was targeted by the authorities because of the extent of his activities for EMEP, but on the other, he attributed his lack of membership in EMEP to his fear of the authorities. The incompatible and belaboured responses indicate to the panel that the claimant's alleged activities and profile were, at best, insignificant.
[48] The applicant does not agree that his answers were incompatible nor that the testimony relating to his membership in the EMEP were confusing. The applicant submits that the Board did not explain "how it was implausible for the applicant, who said he was being persecuted already, to wish to avoid more repression or persecution by not becoming a formal member of EMEP". The transcript of the testimony relating to this point reads as follows at pages 31 to 32:
PRESIDING MEMBER: . . . Could you explain again why you were involved, but not a member of this organization?
CLAIMANT: I'm a sympathizer of the MF Youth Wing because police go after people who are actual members.
PRESIDING MEMBER: But I thought they went after you, too.
CLAIMANT: Yes, they go after us, as well, because I participated in many incidents - sorry, many events and activities. I used to frequent in that place. That's why.
PRESIDING MEMBER: So, why not become a member and (inaudible) your position?
CLAIMANT: I thought about becoming a member, but I was afraid because the people who are members are pressured, oppressed a lot more.
[49] The applicant submits that the Board's finding is patently unreasonable. I have reviewed the material relating to this issue and I cannot agree with the applicant's position. Even if the Board's conclusion was not the conclusion I would have reached, the Board's conclusion is one of the conclusions that was open to it.
[50] Embellishment of Applicant's Testimony
The Board in its decision under the heading of "Alleged incidents of persecution" stated at page 3:
. . . In April 1998, the claimant was apparently trying to put up May Day posters on behalf of EMEP, when he and two friends were taken to the police station, questioned and tortured; he was released with a warning that he would stay away from EMEP.
The claimant stated he and his Laz friends tried to form an association, but could not. When asked to provide details of their effort and why it failed, he gave various answers: they were watched by the police when they gathered; they received calls from police; some of the friends were detained. None of these significant details regarding the authorities are contained in the claimant's PIF narrative. The panel finds the claimant was clearly embellishing his testimony to enhance his claim
[51] The applicant submits that the Board found that the applicant embellished his evidence concerning the April 1998 May Day poster detention and that there is no logical connection between the 1998 detention and his involvement in the Laz organization. The applicant submits that a review of the transcript indicates that the applicant did not argue at the hearing that the unsuccessful attempt to form a Laz association was a significant part of his claim. Furthermore, the applicant states that at no time did he allege detention or ill-treatment by the police over the attempt to form the association.
[52] After reviewing both the applicant's PIF narrative and the transcript at pages 9 to 11, I do not think the "significant details regarding the authorities" that the board stated were omitted from the applicant's PIF pertain to the April 1998 incident. In his PIF at paragraph 9, the applicant clearly states that he was detained and tortured after putting up May Day posters in April 1998. In his testimony, he states that the police detained him for two and a half days and questioned him after putting up the posters.
[53] After questioning the applicant about the April 1998 incident, the transcript at pages 11 to 12 reads:
COUNSEL: Now, I want to ask you if you were in any way involved in the Laz Community. . . .
CLAIMANT: We tried to form the Laz Community, but we were not successful.
PRESIDING MEMBER: Let's understand how you tried and how you were not successful.
CLAIMANT: My friends and myself, we were trying to form an organization, community organization, but we were constantly under the watchful eye of the police and we were (inaudible), and we were afraid of what this may bring up and we weren't able to make the application.
PRESIDING MEMBER: That doesn't tell me anything, that you were under the watchful eye and you weren't able to form the association. What did you do to try to form it?
CLAIMANT: About 15 or so of my friends and I, we used to sit at the coffee house and talk, just so that we could from a Laz Community Organization, but when we would leave the coffee shop and on the street, the police would call us and ask us, "What are you doing? et cetera.
PRESIDING MEMBER: Well, tell me more, because there's nothing in your PIF about police calling you.
CLAIMANT: Police were pressuring us about this and a few of my friends were detained for a few hours and questioned to find out what kind of activities we had and what our aims were in terms of this, because people were afraid of what the types of problems that may spring up. So, we could not make an attempt.
PRESIDING MEMBER: Why is it not in your PIF of the difficulties you had? All you say is that you were afraid.
CLAIMANT: I was afraid because I didn't want to live through the same incidents. I don't know.
[54] The applicant's PIF narrative at paragraph 10 states:
I and my Laz friends met and socialized. We were trying to establish an association but we were not successful because people were afraid of the consequences. . . .
[55] I am of the opinion that the significant details that the Board stated that were omitted relate to the reasons why the applicant and his friends did not form an association. The Board correctly noted that these details were omitted from paragraph 10 of the applicant's PIF and thus, the Board's finding that the applicant was embellishing this part of the claim was a finding open to the Board to make.
[56] Inconsistent Evidence Regarding Police Intervention - July 1999 until May 2000
The Board wrote at page 4 of its reasons:
In his oral testimony the claimant stated that after the July 1999 incident, the police left him alone until an incident in May 2000; in his PIF narrative, however, he stated:
The undercover police did not leave me alone. They followed me around. They were around my sister's house. They would question my sisters and my brother-in-law about my activities.
[57] I note that at page 15 of the Board's hearing transcript, the applicant seems to indicate that after the July 1999 incident and before the May 2000 incident, the police detained him for a day. However, at page 16 of the transcript, the applicant indicates that the police just left him alone during this time. When asked to explain this discrepancy in oral testimony with his PIF narrative, the applicant stated:
CLAIMANT: I did not have contact with them, but I knew that they were watching me, because I was frequenting the MF Youth, I used to come and go to the party and the police were watching me.
[58] Based on a review of the transcript and the applicant's PIF, I am of the opinion that it was open to the Board to find that this inconsistent evidence detracted from the applicant's credibility.
[59] Applicant's Ability to Continue to go to EMEP Meetings
The Board found at page 4 of its reasons:
The panel is incredulous that the claimant had a gun put to his head, was questioned and warned about EMEP, was watched by the police, but was still able to continue going to EMEP meetings.
The applicant submitted that this finding was patently unreasonable in light of the law relating to plausibility findings. I am of the opinion that sufficient evidence was present in this case to allow the Board to make the finding it did make. The finding was not patently unreasonable.
[60] Arrest of the Applicant after the May Day Parade in 2000
The Board stated at page 5 of its reasons:
The claimant acknowledged that EMEP has more than a thousand members in its youth wing. Therefore, the panel finds it is not believable that a person with no profile, who is not even a member of EMEP, would be of such interest to the authorities, that they would allow a May Day march to proceed unimpeded, but then arrest the claimant after the march is over.
The applicant submits that this finding cannot stand as it ignores the evidence contained in paragraph 13 of his PIF. I have reviewed the Board's finding and the statements contained in paragraph 13 of the PIF and I am of the view that while different interpretations may have been possible of this evidence, the conclusion of the Board was one that was reasonably open to it.
[61] Applicant's Continuation of his Activities
After his alleged arrest following the May Day parade, the applicant was released. The
Board stated that it would defy credulity that the applicant "would be released at all despite his actions, which were clearly and repeatedly in contravention of the several orders from the police to refrain from participating in EMEP activities". That applicant states that this finding is not sustainable. I do not agree as I am of the opinion that this is a finding that was open to the Board to make based on the evidence and to which this Court must be deferential sitting on judicial review.
[62] Border Controls
The Board found that the applicant would not have been able to leave Turkey by ship, even with the help of an agent. The Board based its conclusion on the following documentary evidence which is contained in its reasons at page 5:
External frontier controls are carried out effectively with a computerized network at nearly all of the national frontiers. The names of all individuals exiting Turkey at Istanbul airport are automatically run through a computer to see whether they appear on the list of people to be prevented from leaving the country for reasons of, for example, tax evasion or committing a crime. Place clearance is required for passport issue.
[63] The applicant submits that this inference cannot stand as the applicant left Turkey by ship not by air. However, the documentary evidence refers to "[e]xternal frontier controls . . . at nearly all of the national frontiers". I am of the view that this was one of the conclusions that could be reached by the Board.
[64] Failure to Claim in the United States
The applicant's ship stopped in the U.S. but the applicant stated he was not allowed to get off the ship as the captain did not give him a pass. He was not given a pass by the captain when he left the ship in Canada. The Board stated at page 7 of its reasons:
The U.S. is a signatory to the 1967 Protocol. The panel finds the failure to make a claim at the first opportunity, and the substantial delay in making a claim, thereby risking deportation to the very country he allegedly fled from, indicate a lack of subjective fear, and further negate his credibility that he is wanted by Turkish authorities.
[65] It seems unlikely to me that the captain who had been arranged to take the applicant from Turkey would prevent him from leaving the ship at the first place where he could claim refugee status. In the absence of a clear explanation for this, I am of the view that the Board's conclusion on this point is one that was open to it to reach.
[66] As I have concluded that the Board's findings were open to it, the application for judicial review is dismissed.
[67] Neither party wished to propose a serious question of general importance for certification.
ORDER
[68] THIS COURT ORDERS that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
February 2, 2004
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5052-02
STYLE OF CAUSE: CENGIZ ILKER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, August 7, 2003
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: Monday, February 2, 2004
APPEARANCES BY:
Mr. Lorne Waldman
For the Applicant
Ms. Briget O'Leary
For the Respondent
SOLICITORS OF RECORD:
Mr. Lorne Waldman
Toronto, Ontario
For the Applicant
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
For the Respondent
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