Date: 20101217
Docket: IMM-1695-10
Citation: 2010 FC 1305
Ottawa, Ontario, December 17,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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NECATI KARAYEL
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the Board), dated March 3, 2010,
wherein the Applicant was determined to be neither a convention refugee nor a
person in need of protection under sections 96 and 97 of the Immigration and
Refugee Protection Act, R.S. 2001, c. 27 (IRPA). The Board found that the
Applicant failed to provide sufficient credible and trustworthy evidence to
support his claim.
[2]
For
the reasons below, the Application is allowed.
I. Background
A. Factual
Background
[3]
Necati
Karayel, the Applicant, is a citizen of Turkey who seeks
refugee protection in Canada due to his alleged involvement with, and
support for, Kurdish political parties.
[4]
The
Applicant is an ethnic Kurd from Polatli and was the owner of a food wholesale
business. He claims to have been an active supporter of the Democratic
People’s Party (DEHAP), which, in 2005, became the Democratic Society Party (DTP).
Due to his political involvement, the Applicant claims he was subject to
several short term detentions by the Turkish police between 2002 and 2008.
[5]
On
his personal information form (PIF) he details five detentions:
1. In
2002 he attended a DEHAP event in Ankara
and was among the supporters rounded up for detention as part of the Turkish
government’s crackdown on the Kurdish political movement. He claims to have
been held for two days during which time he was interrogated and beaten.
[6]
The
Applicant continued to support the Kurdish cause, attending events organized by
DEHAP even though he did not become a party member because he feared the
adverse effect formal association might have on his business.
2. While participating
in DEHAP-organized Newroz celebrations in March 21, 2005, the Applicant was
among those in the crowd who were taken by the police. He was detained until
the following day. He was questioned and beaten and released with a warning
not to support DEHAP in the future.
3. In March 2006 the
Applicant drove a shipment of food to the southeast city of Diyarbakir. Stopped at a security
checkpoint, the Applicant’s car was searched. When the security forces found
some Kurdish music cassette tapes they began to question the Applicant, and
took him into custody. He was held for 24 hours and was again interrogated and
beaten.
4. In March 2007 the
Applicant went to a coffee shop with some friends to talk to the patrons about
the DTP, the political party that succeeded the DEHAP. Police Officers entered
the shop, requested identification and then arrested the Applicant and his
friends. This time the Applicant was kept in detention for 36 hours,
questioned three times, accused of spreading separatist political propaganda,
and beaten. The police claimed to know about the Applicant’s previous
detentions and threatened the Applicant’s family.
[7]
After
the March detention, the Applicant separated from his wife, thinking it would
make the situation safer for his family. At the same time, police visits to
his business intensified. The situation was so unpleasant he decided to close
his business.
5. May 1, 2008 the
Applicant travelled to Ankara as part of the DTP contingent
to participate in the May Day parade. The police eventually moved in to
disperse the crowd using tear gas. The Applicant was again detained and
beaten. He was told that he would be watched no matter where he went in Turkey and that if he were arrested
again he could expect even worse treatment.
[8]
After
five detentions, the Applicant decided that he had to flee Turkey. He applied
for and received a visitor’s visa to visit his cousin in Canada. To protect
his family, he divorced his wife. He waited for the divorce to be finalized
and then made arrangements to leave Turkey. The Applicant arrived
in Canada on June 21,
2008 and claimed refugee status five days later.
B.
Impugned
Decision
[9]
The
determinative issue for the Board was credibility. Based on significant
inconsistencies between the Applicant’s PIF and testimony at the hearing, the
Board found that the Applicant failed to provide sufficient credible and
trustworthy evidence to support his fear of returning to Turkey. Absent
reasonable explanations for the inconsistencies, the Board did not accept, on a
balance of probabilities, that the Applicant was subject to arrest or detention
as a result of his support for Kurdish political parties. The Board’s reasons
detail the following inconsistencies:
• The
Applicant testified that his most recent arrest was March 2008. When told that
his PIF makes no mention of such an arrest, he stated that he was confused and
that it was actually May 2008;
• The Applicant
testified that his longest detention was 24 hours. When informed that his PIF
mentions a 36 hour detention, the Applicant said there was a misunderstanding;
• More significantly
the Applicant stated during the hearing that he had no problems with the police
between the 2007 and 2008 detention. However, his PIF states that visits from
the police intensified during this time. When questioned about this
inconsistency, the Applicant stated that he meant that he had not been taken to
the police station;
• In the PIF the
Applicant stated that he closed his business in March 2007. At the hearing he
stated that he closed it in March, April or May 2008.
• The Applicant gave
inconsistent evidence regarding his separation and divorce from his wife. At
the hearing he initially testified that he was living with his wife at the time
of the 2008 detention, though his PIF indicated that he separated from his wife
in 2007. Asked about the inconsistency he answered that he did not understand
the question, and that he lived with his wife up until two months before he
left Turkey. After further questioning
he explained that he had moved out in 2007 and the confusion was due to his
misunderstanding of the difference between official and unofficial separation.
• The Board asked
the Applicant to provide detailed accounts of what occurred when he was detained
by police. The Board member clarified several times what kind of details he
was looking for, but there was still some confusion and the Applicant failed to
provide a detailed account of how he was apprehended. Testimony regarding this
point was improved when the Applicant was questioned by Counsel. But given the
prior inconsistencies and inability to answer the Board member’s attempt at
questioning the Applicant, this failed to allay the Board’s concerns regarding
the earlier testimony.
II.
Issues
[10]
The
Applicant raises three issues:
(a) In concluding that the Applicant’s
evidence was not credible, did the Board ignore corroborating evidence?
(b) Did
the Board breach the rules of natural justice or procedural fairness in drawing
an inference that Counsel for the Applicant had breached his professional
obligation not to discuss evidence the Applicant had already given with the
Applicant during a recess, without alerting the Applicant and his Counsel to
its concerns in order for the to disabuse the Board?
(c) Was the Board’s finding that the
Applicant’s evidence was vague supported by the record?
[11]
The
issues are best summarized as:
(a) Did
the Board ignore evidence?
(b) Was there any breach of natural
justice or procedural fairness?
(c) Is the Board’s credibility
finding reasonable?
III. Standard
of Review
[12]
It
is well-established that decisions of the Board as to credibility are owed a
significant amount of deference and resultantly are reviewed on a
reasonableness standard (Lawal v Canada (Minister of Citizenship and
Immigration), 2010 FC 558 at para 11; Aguebor v Canada (Minister of
Employment and Immigration) (1993), 160 NR 315, 42 ACWS (3d) 886 (FCA) at
para 4). Similarly, the weight assigned to evidence and the interpretation and
assessment of evidence are all reviewable on a standard of reasonableness (N.O.O.
v Canada (Minister of
Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 at para
38).
[13]
As
set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; and Khosa
v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12; [2009] 1 S.C.R. 339 review on a
standard of reasonableness requires consideration of the existence of
justification, transparency, and intelligibility in the decision-making
process. It is also concerned with whether the decision falls within a range of
acceptable outcomes that are defensible in respect of the facts and law.
[14]
Questions
of procedural fairness are reviewed on a standard of correctness and as a
result the decision maker is owed no deference in such matters (Villanueva
v. Canada (Minister of
Public Safety & Emergency Preparedness) 2010 FC 543 at para 16;
Hussain v Canada (Minister of Citizenship and Immigration), 2010 FC 334
at para 15).
IV. Argument
and Analysis
A. Failure
to Mention Evidence
[15]
The
Applicant submits that in coming to an adverse credibility finding, the Board
failed to take into account corroborating evidence provided by the Applicant.
The Applicant entered into evidence several items which were not mentioned in
the Board’s reasons, such as – a letter from the DTP confirming that the
Applicant attended events and was detained by the police as a result of his
participation; a document from the DTP indicating that the Applicant was an
observer during the 22nd parliamentary election; and a letter from the
Applicant’s wife in which she claims the police are still looking for the
Applicant and visit the family home on occasion.
[16]
The
Applicant relies on Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35, 83 ACWS (3d) 264, for
the proposition that the Board committed a reviewable error by not at least
acknowledging evidence that contradicted its finding regarding the Applicant’s
credibility. Cepeda is a seminal case often cited on judicial review when the
Board has come to a conclusion that differs from information contained in a
piece of evidence submitted by the Applicant. In this particular context it is
important to remember that the general principle to be distilled from Cepeda’s
evolution into an all-purpose documentary evidence citation is that the more
probative the evidence, the more likely the Court will find error when the
Board ignores it (Ozdemir v Canada (Minister of Citizenship and Immigration),
2001 FCA 331, 282 NR 394 at para
9).
[17]
The
Board is free to weigh evidence as it sees fit. However, the Applicant must be
assured when reading the decision that the evidence was considered. There is
nothing in the present decision to show that the Board member turned his mind
to the evidence – even if only by one line of text to assign it no weight (Mladenov
v. Canada (Minister of Employment and Immigration), 74 FTR 161, 46
ACWS (3d) 302 at para 10). This is unfortunate.
[18]
The
Board came to the conclusion that the Applicant had not been subject to arrest
or detention. This very finding is expressly contradicted by the unmentioned
evidence. This evidence is relevant, specific to the Applicant’s claim, and
corroborates the Applicant’s testimony. In my view, the unmentioned evidence
of such great importance that the Board’s failure to refer to it in its reasons
warrants the intervention of this Court and the Board’s decision must be set
aside.
B. No
Breach of Procedural Fairness
[19]
The
Board member writes in his decision, at para 9:
After the morning recess the
claimant’s counsel examined the claimant. During this examination the claimant
provided details of the arrest. Given the concerns above, and given the timing
of this evidence which came after a 15 minute recess, a time during which I
have no information as to what conversations the claimant might have had, I do
not find that it allays my concerns.
[20]
The
Applicant submits that the Board in this passage makes a veiled accusation that
counsel coached the Applicant during the recess, in violation of the Rules of
Professional Conduct.
[21]
Having
determined that the decision ought to be set aside on the basis of ignored
evidence, I do not need to decide this point. I would say, however, that the
Board member’s wording is regrettable. The excerpt would be inoffensive if it
were not for the parenthetical thought “a time during which I have no
information as to what conversations the claimant might have had.” While the
Board member may not have had Applicant’s counsel in mind, it is an inference
that is there to be drawn, and it is inappropriate. Lawyers called to the bar
of Ontario have a duty to abide by the Rules of Professional Conduct and there
is no such thing as a casual and inoffensive suggestion that they take this
duty only half-heartedly.
V. Conclusion
[22]
No
question to be certified was proposed and none arises.
[23]
The
Applicant’s application does refer to a further issue not dealt with here, but
in consideration of the above conclusions, this application for judicial review
is allowed. The matter is referred back for reconsideration by a differently
constituted panel.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed.
“ D.
G. Near ”
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