Date: 20041103
Docket: IMM-7862-03
Citation: 2004 FC 1551
Ottawa, Ontario, November 3, 2004
Present: THE HONOURALBE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
MAHMUT YILDIZ
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mahmut Yildiz is a 38-year-old citizen of Turkey. He based his refugee claim on a well-founded fear of persecution in Turkey at the hands of Turkish authorities, including security forces, due to his Kurdish ethnicity and his perceived political opinion. The Refugee Protection Division of the Immigration and Refugee Board (RPD) denied his claim.
[2] At the hearing of the judicial review application, the applicant's counsel (who was not counsel before the RPD or counsel who filed the applicant's record) withdrew all allegations of error in relation to the RPD's decision but for one - breach of natural justice. Thus, the only issue for determination is whether there was a breach of natural justice on the basis that Mr. Yildiz was denied the opportunity to present his case.
[3] It serves no useful purpose to recite the various incidents allegedly giving rise to the refugee claim. Suffice it to say that the hearing was held on January 17, 2003. By correspondence dated July11, 2002, the RPD identified the following issues as being relevant to the claim: credibility; ethnic group/tribe/clan; failure to claim elsewhere; objective basis; agent of persecution; protection; and discrimination versus persecution. At the outset of the hearing, the RPD directed the applicant to limit his testimony to an explanation of the inconsistencies and omissions between the story he provided at the port of entry (POE) - as contained in the POE notes - and the story he subsequently provided in his personal information form (PIF).
[4] The POE notes indicated a claim based on religious grounds while the PIF indicated a claim based on ethnicity and expressed or imputed political beliefs. The RPD member stated that she would continue with the remainder of the hearing only if a satisfactory explanation could be provided for the discrepancies. If not, the hearing would be terminated and the decision would be rendered in writing.
[5] Mr. Yildiz was asked to explain why, at the POE, he avoided disclosing his Kurdish ethnicity and the associated problems he experienced when he had been told about Canada's reputation regarding human rights and its reception of refugees. He explained that the smugglers advised him to claim on the basis of religion on entry and to inform officials about his Kurdish ethnicity after he was in the country. He did not believe that they would give him bad advice. The RPD rejected that explanation and stated that it was incumbent upon the applicant to tell his whole story at the POE and that there was no reason for him to follow the advice of law-breaking smugglers when he clearly possessed the wherewithal to make his own decisions.
[6] The RPD member also took issue with some of the responses to the questionnaire that Mr. Yildiz had completed without the assistance of an interpreter. In response to the POE questionnaire he stated that he was a seaman by profession, that he had not performed military service in Turkey, had no criminal record and had not served any time in jail in Turkey. When questioned repeatedly about why these responses conflicted with the statements in his PIF, he explained that, with regard to some of the questions, he did not fully understand what he was being asked. Although he required interpretation at the hearing, the RPD was not convinced that his understanding of English had any bearing on the production of these inconsistencies.
[7] Based on these observations, the RPD concluded that the PIF contained statements that were embellished for the purpose of supporting the claim. After hearing submissions on the inconsistencies, the RPD terminated the hearing and rendered a negative decision.
[8] Counsel for the respondent contends that because then counsel for Mr. Yildiz consented to this procedure, he cannot now be heard to complain. A review of the transcript reveals the following comments of counsel:
I have a comment in terms of whether or not it's possible for the Member to come to a binding decision without having heard all of the evidence on the claim. It's just an issue that I need to raise... I would prefer not to have to wait to address that type of decision on a judicial review but to see whether or not it is possible for the Member to come - or fair to the claimant for the Member to come to a final decision before all the evidence has been presented.
[9] In Singh v. Canada (Minister of Citizenship and Immigration) (1998), 45 Imm. L.R. (2d) 42 (F.C.T.D.), the board identified a number of issues that it felt were particularly relevant to the claimant's claim. The statements in the claimant's PIF were relevant to the issues identified by the board. The board decided not to take the PIF into account and would not allow the claimant's counsel to present evidence regarding it. Mr. Justice Strayer, then of the trial division, determined that the board's actions constituted a breach of natural justice and, accordingly, set aside the decision.
[10] In Papsouev v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm. L.R. (2d) 48 (F.C.T.D.), the board rejected the claims of a family of Russian citizens on the basis that the undue delay on their part in making their refugee claims cast serious doubt upon their alleged fear of persecution. After finding that the explanation for the delay was insufficient, the panel would not allow the family to present any evidence corroborating their allegations of persecution in Russia. Mr. Justice Rouleau set aside the decision stating that, even if the board found the claimants were not credible, it still had to consider the critical question of whether they had a well-founded fear of persecution in Russia as a result of their religion.
[11] Those cases, while not directly on point, are analogous. The RPD, in its July 11, 2002 correspondence, specified the issues that it considered to be relevant to the claim. The member refused to hear any evidence or submissions other than those that pertained to the inconsistencies noted earlier. It was certainly open to the board to determine that the inconsistencies seriously impeached the credibility of Mr. Yildiz. However, even in the face of a finding that he was not credible, the RPD was obliged to consider whether he had a well-founded fear of persecution. Its refusal to hear evidence on that issue is, in my view, a fatal error. Mr. Yildiz was not afforded an opportunity to present his case and that is a breach of natural justice.
[12] In Siloch v. Canada (Minister of Employment and Immigration) (1993), 18 Imm. L.R. (2d) 239 (F.C.A.), Mr. Justice Décary stated that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent unqualified right that finds its essential justification in the sense of procedural justice to which any person affected by an administrative decision is entitled.
[13] The application for judicial review will be allowed and the matter will be remitted for redetermination before a differently constituted RPD. Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is remitted for redetermination before a differently constituted RPD.
« Carolyn A. Layden-Stevenson »
Judge
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-7862-03
STYLE OF CAUSE: MAHMUT YILDIZ v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 1, 2004
REASONS FOR ORDER: The Honourable Madam Justice Layden-Stevenson
DATED: November 3, 2004
APPEARANCES:
SOLICITORS OF RECORD:
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Mr. Rezaur Rahman
Ottawa, Ontario
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FOR THE APPLICANT
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Mr. Morris Rosenberg
Deputy Attorney General of Canada
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FOR THE RESPONDENT
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