Date: 20101208
Docket: IMM-4921-09
Citation: 2010 FC 1252
Ottawa, Ontario,
December 8, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
GULER
ARASAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated September 15, 2009, wherein the applicant was
determined not to be a Convention refugee or a person in need of protection
under sections 96 and 97 of the Act. This conclusion was based on the Board’s
finding that the applicant lacked credibility and lacked a well-founded fear of
persecution in Turkey.
[2]
The
applicant requests that the decision of the Board be quashed and the claim
remitted for reconsideration by a differently constituted panel of the Board.
Background
[3]
Guler
Arasan (the applicant) is a Kurdish-Alevi citizen of Turkey. The
applicant alleges a well-founded fear of the Turkish police due to her
ethnicity, religion and political activities. The applicant is a supporter of
left wing political parties and student, including the HADEP (People’s Democratic
Party) which she became familiar with during her undergraduate and graduate
education. The applicant comes from the Tunceli region of Turkey, which is
alleged to be a stronghold of Kurdish-Alevi resistance. The applicant attended
a number of university student protests throughout her post-secondary education
which she alleges led her to become known to police. The applicant alleges that
she was detained by police on the following occasions:
1. Mid-December 1999 (2
days);
2. January 2002 (2
days);
3. July 2005 (1 day);
and
4. September 2006 (1
day)
[4]
The
applicant alleges that police sexually and physically abused her during those
periods of detention. The police allegedly threatened her life during the last
detention unless she agreed to act as a spy.
[5]
The
applicant decided to leave Turkey after the September 10, 2006 detention
because she could not spy on her friends and political allies. She obtained a
student visa to Canada and arrived on January 9, 2007. The applicant
claimed refugee protection on January 17, 2009.
Board’s Decision
[6]
The
Board rejected the applicant’s claims on the basis that her testimony,
behaviour after being released from detention and the lack of documents to
corroborate her claims of separate detention on four occasions lacked
credibility. The Board found on a balance of probabilities that the applicant
was not subject to detention or police mistreatment.
[7]
The
Board questioned the applicant’s ability to continue her university studies and
daily routine without difficulty after every round of alleged detention and
mistreatment. The Board rejected the applicant’s explanations with respect to
her quick recoveries at paragraph 7 of the decision:
One of her explanations was that “the
week I stayed away was not the week of exams” and “I started Master in
September 2002. I do not find the claimant’s testimony to be credible. I do not
find either of the explanations adequately explains how the claimant was
physically, psychologically and emotionally able to continue with her life
after such a brief interruption and without any treatment or assistance.
[8]
The
applicant adduced a psychological assessment from Dr. Gerald M. Devin dated
January 5, 2008, which stated that the applicant suffered from stress related
symptom. The Board accepted Dr. Devin’s assessment and determined that the
stress suffered by the applicant was due to the applicant’s uncertain status in
Canada and not her
persecution in Turkey.
[9]
The
Board isolated the following concerns with respect to credibility:
1. The applicant’s post
detention conduct in Turkey was inconsistent with the applicant’s present
conduct in Canada as described
by Dr. Devin in his assessment;
2. The applicant
continuously exposed herself to the police through protests but she did not
seek medical treatment or attention for fear of detention;
3. The applicant did
not seek legal counsel despite having a cousin who was a lawyer;
4. Complaints to
Turkish authorities were not pursued because the applicant “did not think she
would get anywhere with it”;
5. The applicant’s lack
of action subsequent to her detentions; and
6. The lack of
documentation corroborating her detentions.
[10]
The
Board determined that the applicant was a low level political supporter of
pro-Kurdish activities although not a member of a political party. The Board
noted that the applicant’s family continue to reside in Ankara. The Board
concluded that the applicant is unlikely to come to the attention of the
authorities upon her return to Turkey and dismissed her claim for refugee
status.
Issues
[11]
The
issues are as follows:
1. What is the standard
of review?
2. Did the Board err in
finding that that the applicant was not a member of a political party?
3. Did the Board err in
finding that it was implausible that the applicant could carry on with her
normal life subsequent to her detentions?
4. Did the Board err
when it held that the applicant should have stopped attending demonstrations if
she was telling the truth?
Applicant’s Written Submissions
[12]
The
applicant submits that the Board erred in determining that the applicant was
not a member of a political party but rather a low level supporter of Kurdish
causes. The applicant submits that the applicant’s letter of membership confirms
her party membership status.
[13]
Being
a party member places the applicant at a greater risk of detection and
persecution compared to being a mere low level supporter. The U.S. Department
of State report for Turkey indicates a strong risk of persecution for any
Kurd who publicly or politically asserts their Kurdish identity or language.
[14]
The
applicant submits that the Board’s findings of fact with respect to the
applicant’s stress related symptoms are unreasonable. There is no evidence that
the applicant could not have carried on with her life subsequent to her
detentions or that her psychological problems did not emerge at a later date.
The Board’s findings are outside its area of expertise and are speculative.
[15]
The
applicant further submits that she should not be expected to avoid political
demonstrations and that her allegations of inability to access state protection
are reasonable. The Board’s contrary fact findings are therefore unreasonable.
Respondent’s Written Submissions
[16]
The
respondent submits that the applicant stated in her Personal Information Form (PIF)
and in testimony that she was a supporter of Kurdish causes and not a member of
a political party. The applicant’s documentation which purports to show her
political membership is contradicted by her testimony and is insufficient in
and of itself to establish that fact on a balance of probabilities. There is no
link between her alleged party membership and her personal experiences of
persecution or the future risks of persecution.
[17]
The
respondent further submits that the Board reasonably assigned little weight to
the applicant’s medical evidence in light of her testimony. The respondent
states that the applicant could not explain the implausibility of her ability
to carry on with her life after the detentions which renders the psychological
evidence with respect to stress related symptoms insufficient to establish the
applicant’s state at the time of her stay in Turkey.
Analysis and Decision
[18]
Issue
1
What is the standard of
review?
The applicant
challenges the Board’s credibility findings. A credibility finding is a finding
of fact. Findings of fact made by the Board may only be interfered with by a
reviewing court if the finding was made in a perverse or capricious manner or
without regard for the material before it (see Federal Courts Act,
R.S.C. 1985, c. F-7 paragraph 18.1(4)(d)). Indeed, it was Parliament’s express
intention that administrative fact finding would command this high degree of
deference (see Canada (Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at paragraph 46).
[19]
It
is well settled that Board conclusions that are determinative of a refugee
claim are determinations of mixed fact and law and are reviewable against the
standard of reasonableness (see Kaleja v. Canada (Minister of Citizenship
and Immigration), 2010 FC 252 at paragraph 19, Sagharichi v. Canada
(Minister of Employment and Immigration) (1993), 182 N.R. 398 (F.C.A.), [1993]
F.C.J. No. 796 at paragraph 3). As such, the reviewing court will inquire into
the qualities that make such a determination reasonable and be concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. The court will also be concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47).
[20]
I
wish first to deal with Issues 3 and 4.
[21]
Issue
3
Did the Board err in finding
that it was implausible that the applicant could carry on with her normal life
subsequent to her detentions?
The Board found that it was
implausible that the applicant could have carried on with her normal life if
she had been detained. The Board found that if the applicant suffered from
medical problems which affect her daily life today, then she would have
suffered from medical problems following her detention and torture, prohibiting
her from carrying on her normal life. The Board used this as a basis for finding
her not to be credible. The Board stated at paragraph 8 of its decision:
8 I
find the person who was able to accomplish all that the claimant accomplished
in Turkey to be in stark contrast with the “person
described” by psychologist Dr. Devins in January 2008. The claimant claims she
was detained in 1999, 2002, 2005 and 2006. In Turkey
the claimant completed her post graduate Masters Degree in 2004 after which she
taught high school and middle school science subjects until she left Turkey in December 2006 with the Canadian student visa she
successfully applied for. In complete contradiction with the claimant’s stated
ability to sufficiently cope with her circumstances from her first detention in
university in December 1999 until she left Turkey in December 2006, Dr. Devin’s
noted in 2008 the unemployed claimant’s concentration problems impeded her
English as a Second Language classes. During the psychological assessment the
claimant told the doctor she suffered from stress related symptoms such as
headaches, nightmares, loss of appetite, lack of energy, problems with
concentration and memory, forgetfulness, distraction and at times her mind goes
blank. I find on a balance of probabilities that if these conditions exist
today it stands to reason the condition of the claimant would have been worse
shortly after the detentions. I find it reasonable to expect that a person, who
has been detained, tortured and threatened with death to suffer from stress and
other debilitating symptoms however given this claimant did not describe
suffering from any of these symptoms while in Turkey I find on a balance of
probabilities the symptoms she now suffers may be related to her uncertain
status in Canada and nervousness related to her refugee hearing. I do not find
the claimant to be credible concerning the allegations of her detentions and
mistreatment by the Turkish police.
[Emphasis
added]
[22]
The applicant submits that the Board erred in using medical
expertise that it does not have to conclude in the final two sentences of
paragraph 8 that her symptoms are the result of her immigration status and not
her detention. I agree. The Board does not have the medical expertise to make a
finding that the applicant’s medical condition should have been worse while she
was in Turkey. It was an error to find the applicant not credible for this
reason.
[23]
Issue
4
Did the Board err when it
held that the applicant should have stopped attending demonstrations if she was
telling the truth?
The Board found that it was not
credible that the applicant would not go to a doctor for fear of detention and
yet still attend political demonstrations. Mr. Justice James Russell of this
Court stated in Gebremichael v. Canada (Minister of
Citizenship and Immigration), 2006 FC 547 at paragraphs 46 to 48
stated:
46 Turning
to Hiwote's claim, the Board held that "a person truly abused and
mistreated as alleged would be fearful of her safety [and would] make efforts
to protect herself from any such encounters in the future" (Decision at p.
8). The Board drew an adverse inference with respect to Hiwote's subjective
fear. In doing so, I believe the Board fell into the trap warned against in Anwar
v. Canada (Minister of Citizenship and
Immigration), [2002]
F.C.J. No. 1434, 2002 FCT 1077.
47 In Anwar, as the Applicants
note, a claimant continued her daily life after being released from detention
on four separate occasions. Only after being released from a fifth detention
did the claimant go into hiding. The Court in Anwar made the following
helpful observations:
48. The analysis of the Board with
respect to the arrests of the claimant and her subsequent conduct merits our
discussion. The Board did not find the conduct of the applicant and her family
during the period of the first four arrests plausible. Such a finding was
stated and explained throughout the reasons of the Board.
49. In my view, however, the Board considered the plausibility
of their conduct during this period with undue hindsight. Looking back at the
relevant period, we see four arrests in succession in 1999. That the claimant
continued going to school after each of the first four arrests, rather than
remaining at home, was a factor that led the Board to conclude that the version
of events advanced by the applicant was implausible.
50. However, the record, including
the transcript of the hearing, indicates that the applicant was acting on a
belief that she did nothing wrong and that, accordingly, she should not have to
change the way in which she led her life. In Samani, [1998]
F.C.J. No. 1178, supra,
Hugessen J. stated at paragraph 4:
[...] It is never particularly persuasive
to say that an action is implausible simple because it may be dangerous for a
politically committed person.
51. I am hesitant to adopt entirely
the submission of the applicant that her attendance at school should be
assimilated to the conduct of a politically committed person. However, I accept
the line of reasoning advanced by Hugessen J. that the conduct to which an
applicant testifies is not implausible for the simple reason that it was risky
from the vantage point of a CRDD Board - or a court undertaking judicial review
- with a full record before it. Without engaging in speculation of the same
nature which led the Board astray in this case, I cannot imagine that the
documentary or other evidence on the record would require a finding that the
applicant had no reason to believe, or at least hope, that after the first
period of detention, during which she denied knowledge of what was being
alleged, that would be the end of her problems with the authorities.
52. The Board noted that her first
three detention periods were one week, two days and five days, respectively,
and that between May 1999 and March 2000, she had not been arrested. It was not
implausible for her to believe, during that period, that the worst for her may
have been over; nor was it implausible that, despite such assaults on her
physical integrity, such as electric shocks, beatings and being doused with
cold water, it took the threat to her sexual integrity to serve as the impetus
for her to go into hiding. The conclusions reached by the Board in this regard
are unreasonable as they are not justified by the record before me.
48
In
my opinion, the Board in the case at bar considered Hiwote's actions, most
notably her return to school, with undue hindsight. It was not implausible for
Hiwote to have honestly believed or hoped that she would not be sexually
assaulted in the future, and that she would be safe because the authorities
were interested in her brother and not her. The Board's conclusions on this
point seem to be made in a vacuum, and fail to consider Hiwote's PTSD or any
cultural factors that may have affected her decision to continue going to
school. The psychologist's report notes that sexual assault is highly
stigmatized in Amharic and Ethiopian cultures (Devins Report, Applicants'
Record, at page 62). The Board erred by failing to consider this relevant,
important evidence. The Respondent points out that the Board does refer to
Hiwote as the "Minor Applicant" and thus acknowledges her age. But
when the Decision is read as a whole this was clearly an identification tag
rather than a way of showing that the Board attempted to look at Hiwote's
evidence from the perspective of someone her age and with her cultural
background. This is the aspect of the Decision that concerns me the most. The
Board assesses the reasonableness of Hiwote's explanation from its own
perspective and not hers.
[24]
Applying
this reasoning to the present case, I am of the opinion that the Board was in
error in finding that the applicant was not credible because she did not go to
a doctor for fear of being detained yet she attended political demonstrations.
[25]
Because of my finding with respect to the basis for finding the
applicant not credible, I will not deal with Issue 2. Because the issue of the
applicant’s credibility appears to have played such a pivotal role in the
outcome of the decision, I cannot tell what the final decision might have been
had these negative credibility findings not been made.
[26]
The
application for judicial review should therefore be allowed and the matter is
referred to a different panel of the Board for redetermination.
[27]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[28]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27
|
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,
(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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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,
(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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