Date: 20100621
Docket: IMM-4149-09
Citation: FC 2010 671
Ottawa, Ontario, June 21, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
HASAN
AY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to
subsection 72 (1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act) of a decision dated July 22, 2009, by the Refugee Protection
Division of the Immigration and Refugee Board (the Board), wherein the Board
found the applicant was not a Convention refugee or a person in need of
protection pursuant to subsections 96 and 97(1) of the Act.
Factual Background
[2]
The
applicant is a Kurd born in the village of Koseyahya of
Elbistan in the Kurdish province of K. Maras in Turkey. The
Kurdistan Workers’ Party, better known as the PKK, claims to fight for Kurdish
independence and has been classified as a terrorist organization. As a result
of the violent conflict between the PKK and Turkish authorities, many Kurds
have suffered or fled from their villages.
[3]
The
applicant is a farmer who recounts years of persecution by Turkish soldiers of
his people. As a child, he witnessed soldiers beating and insulting fellow villagers.
At the same time, the applicant and his fellow villagers would allegedly be
forced to provide provisions for the PKK. When the soldiers suspected such
support, they would persecute the villagers. As a result of the conflict, many
members of the applicant’s village had left. The applicant’s family was also
prevented by Turkish soldiers from accessing grazing grounds due to fears they
would be assisting the PKK.
[4]
In
September 1995, the applicant was stopped at a checkpoint and arrested. He was
accused of attempting to purchase provisions for the PKK. Despite his denials,
the applicant was allegedly beaten, tortured and detained for three days. After
his release, the applicant attempted to avoid the Turkish soldiers in his
region by living and working in different cities. However, he found that he was
subject to the same discrimination elsewhere in Turkey. He would
often return to his village for visits, but kept a low profile.
[5]
In
September 1998, soldiers saw the applicant and ordered him to lie down. They
searched him and detained him for two days. They were searching for information
concerning Kurdish insurgents. During his detention, the applicant was beaten
and subjected to inhumane treatment. He was also asked to be an informer but he
refused. He was subsequently released with no charges.
[6]
In
July 2002, the applicant hosted a meeting at his house concerning the upcoming
election. The meeting involved sympathizers of the pro-Kurdish parties and the
leftist parties who were contemplating the possibility of forming a coalition.
The gendarmeries stormed the applicant’s house later that day and demanded that
the applicant provide the names of all the attendees. The applicant refused and
was beaten in front of his family by gendarmerie officers. His wife attempted
to intervene but she was also mistreated. The applicant was arrested and taken
away while his wife was later brought to the hospital and treated for shock. The
applicant was taken to a military base and detained for three days.
[7]
Six
months after this arrest, the applicant moved to the town centre where he
thought he would be more anonymous. However, in March 2006 he was again
detained. The authorities suspected he had knowledge of a banner that was hung
in protest in Diyarbakir where Kurdish
civilians had been killed by the security forces. The applicant was shown
pictures of suspects, but denied knowing any of them. He was again beaten then
released.
[8]
On
July 20, 2007 the applicant was arrested on his way to Elbistan. It was two
days prior to the general elections. He supported a coalition known as
“Candidates for One Thousand Hopes” consisting of Kurdish DTP and other leftist
parties. The applicant had helped the coalition by distributing election
brochures and attending meetings. Supporters of the coalition, including the applicant,
were often stopped, searched, and had their materials confiscated. After the
arrest, the applicant was taken to a military base and held for two days. The applicant
claims he was questioned by members of the Gendarmerie intelligence service
known as JITEM. The applicant submits that he was physically abused by the
JITEM and threatened that they would make him ‘disappear’. Furthermore, they
requested his cooperation in framing some Kurdish officials and wanted the applicant
to make statements that incriminated them. The applicant refused and, as a
result, he was subject to further beatings and electrical shocks. He was
subsequently released but told that there would be consequences for not
cooperating.
[9]
After
his release, the applicant began to make arrangements to leave Turkey. The applicant
came to Canada via the United
States
in September 2007. The applicant’s sister and brother-in-law were granted
refugee status in Canada. The applicant also has other siblings who were
granted asylum in the United Kingdom.
Impugned Decision
[10]
The
Board member refused the application on the grounds that the applicant’s story
was not credible, that he had an internal flight alternative, and that he did
not subjectively or objectively fear for his life as illustrated by his delay
in making a refugee claim.
[11]
First,
the Board member found that there were apparent discrepancies between the notes
of the Immigration Officer taken on September 12, 2007 and the Personal
Information Form (PIF) narrative. The Board member questioned why the applicant
first stated he feared the PKK, when he also feared the Turkish authority. The
Board member recognized that the port of entry notes stated that the applicant
feared both the Turkish authorities and the PKK. However, the fact that the applicant
failed to correct the discrepancy until the hearing two years later discredited
the applicant’s credibility.
[12]
The
Board member also found the applicant’s reasons for not leaving Turkey earlier lacked
credibility. The applicant stated that, although he was the main target for the
Turkish authorities, he wanted to stay behind until all his siblings were
safely out of Turkey. The Board
member felt that the applicant’s explanation was not logical; if he were the
main person sought by the authorities and if he was fearful for his life, he
should have left sooner. The Board member found that the applicant’s actions
illustrate a lack of subjective fear and undermine his credibility.
[13]
The
Board member was of the view that the applicant was a farmer with no political
ties because no party officials or members of the PKK were at his home during
the raid. Out of 13 or 14 people in his home, only four were arrested as the
rest were over the age of 50. The Board member found the explanation that no
one over 50 was arrested not reasonable or credible if they were all engaged in
activities against the state. The Board member did not believe that the applicant
was a concern to the Turkish authorities because he was always released after
his arrests without charges. This was compounded by the fact that the applicant
never made the decision to leave Turkey sooner. The applicant
also could not produce any material such as pamphlets or brochures to support
his claims of political activity.
[14]
The
applicant was asked why he did not seek asylum in the United Kingdom where the rest
of his siblings were accepted as refugees. The applicant responded that he had
a sister in Canada and believed Canada was a better place to
live. The Board member felt that the applicant’s “refuge shopping” undermined
his claim. Furthermore, the applicant’s failure to make a refugee claim in the United
States
reinforced the Board member’s belief that the applicant did not truly fear for
his life.
[15]
The
Board also found the applicant’s failure to obtain an update from his wife – as
to his situation in Turkey – contributed to his lack of credibility. The applicant
explained that he did not want to involve his wife in his problems. However,
the Board member found it unreasonable that, given his wife’s witnessing of the
applicant’s beating in their home, she would be aware of his problems and would
be able to provide an update as to the applicant’s present situation in
Elbistan.
[16]
The
Board member also received a psychiatric report stating that the applicant
suffered from Post-Traumatic Stress disorder as a consequence of the torture he
had endured. The Board member gave little weight to the psychiatric report.
[17]
Even
if the applicant’s claim was credible, the Board was of the view that he had a
valid IFA. The applicant could have moved to Istanbul, a city of
9.7 million. The applicant claimed that he would face similar problems in Istanbul by virtue of
the fact that he is a Kurd. The Board member felt there was no evidence that
the applicant would not be safe in Istanbul, and that he was
capable of building a new life there.
[18]
The
Board concluded that there is no serious possibility or reasonable chance that
the applicant would face persecution for a Convention ground if returned to Turkey. The Board
also found that the applicant was not a person in need of protection.
Issue
[19]
This
application raises the following issues:
a. Did the Board
make unreasonable credibility findings with respect to the applicant’s refugee claims?
b. Did the Board
breach the principles of procedural fairness by considering internal flight
alternatives without placing the applicant on proper notice?
[20]
For
the following reasons, the application for judicial review will be allowed.
Statutory Provisions
[21]
The following provisions of the Act are applicable in these
proceedings:
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Convention refugee
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.
|
Définition de « réfugié »
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.
|
|
Person in need of protection
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.
Person in need of protection
(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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Personne à protéger
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.
Personne à protéger
(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.
|
Standard of Review
[22]
Prior
to Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, the standard of patent unreasonableness was applied to credibility
findings (Mejia v. Canada (Minister of
Citizenship and Immigration), 2009 FC 354, [2009] F.C.J. No. 438 (Q.L.) at para. 24). The Court will only
intervene with a credibility finding if the Board based its decision on an
erroneous finding of fact made in a perverse or capricious manner or if it made
its decision without regard to the material before it (Aguebor v. (Canada)
Minister of Employment and Immigration, (1993), 160 N.R. 315, 42 A.C.W.S.
(3d) 886 (F.C.A.)).
[23]
In
Diaz v. Canada (Minister of Citizenship and Immigration), 2008 FC 1243, [2008] F.C.J. No. 1543, the Court
summarized the law on standard of review for an IFA. IFA determinations were
reviewed on a patent unreasonableness standard because the question fell
squarely within the expertise of the Board, and was therefore owed more
deference.
[24]
In
light of Dunsmuir, the Court in Mejia, supra, concluded
that the appropriate standard of review for credibility findings and IFA
determinations is reasonableness. According to the Supreme Court of Canada,
when reviewing a decision on the reasonableness standard, the court should be
concerned with justification, transparency and intelligibility within the
decision-making process. The outcome must be defensible in respect of the facts
and the law, and should fall within a range of possible and acceptable outcomes
(Dunsmuir at para. 47).
[25]
Finally,
it is well settled that issues of procedural fairness are reviewed on a
standard of correctness: Level (litigation guardian) v. Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 227, [2008] F.C.J. No. 297 at para. 9.
Analysis
a) Credibility
[26]
The
applicant submits that the Board erred with respect to its findings that the applicant’s
evidence was not credible. The applicant argued that there was no alleged
inconsistency between the port of entry notes and the applicant’s later
evidence. The applicant’s PIF clearly established that he feared both the PKK
and the Turkish authorities.
[27]
The
applicant also argues that his delay in leaving Turkey should not
be grounds for a negative credibility finding. The applicant submits that it
was only after his detention in July 2007 when his life was threatened that he
felt compelled to leave. Prior to this incident, the applicant’s life was not
in danger.
[28]
Further,
the applicant alleges that his failure to make an asylum claim in the United
Kingdom was irrelevant since he did not travel through the United
Kingdom
to reach Canada.
[29]
The
Board member did not believe that it was reasonable that the Turkish
authorities only arrested those under 50, and the Board questioned how the
authorities learned of the meeting and why they would be concerned. The applicant
argues that he provided a reasonable explanation: the authorities likely
learned of the meeting through informants, and the documentary evidence clearly
shows that use of informants is common in Turkey.
[30]
The
applicant asserts that he provided rational explanations in relation to the
lack of corroborating evidence, the inability of his wife to provide an update
as to the applicant’s current situation in Turkey, and the applicants
recurring arrests and releases.
[31]
In
addition, the applicant submits that he did not want to endanger his wife in any
way by having her inquire as to his current situation. Furthermore, evidence
was provided from the applicant’s father stating that the family home had been
visited by Turkish authorities a month earlier. Finally, the applicant states
that his arrests were in relation to particular incidents or activities, and it
was perfectly rational that he would be released once the authorities
determined there was no evidence to formally charge him.
[32]
The respondent
argues the fact that the applicant failed to make a refugee claim at the first
opportunity he had (i.e. in the United States) can be a relevant factor when
assessing credibility: Gavryushenko v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1209,
194 F.T.R. 161 (Q.L.).
[33]
The
respondent also submits that the applicant’s route to Canada was more indicative of
refugee shopping as opposed to a real fear of persecution. While corroborative
evidence is not required, the respondent alleges that it was reasonable to
consider the applicant’s failure to produce it as undermining his credibility.
For instance, the applicant could have obtained an affidavit from his wife as evidence
to support his allegation: Bin v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 1246, [2001]
F.C.J. No. 1717 (Q.L.); Syed v. Canada (Minister of Citizenship and Immigration), [1998]
F.C.J. No. 357, 78 A.C.W.S. (3d) 579 (Q.L.). Finally, the respondent submits
that the Board was entitled to assign little weight to the psychiatric report
because it was made only two months prior to the hearing and there was no
history of the applicant seeking psychiatric help nor was he currently
receiving medical treatment.
[34]
Upon
reviewing the evidence, this Court is of the view that the Board erred with
respect to a number of negative credibility findings.
[35]
The
Court disagrees that there are inconsistencies between the POE notes and the applicant’s
testimony. The applicant’s written statement to the Officer clearly states that
he fears the PKK and the Turkish authorities (Tribunal’s record at p.
120). Although the Board member acknowledges in his decision that the
applicant stated he feared the Turkish authorities (the Board’s decision at
para. 5), the Board still formed a negative inference.
[36]
This
Court is also of the view that the Board member unreasonably disregarded the applicant’s
explanations. Although a claimant’s delay in leaving his country can be a
factor in assessing credibility, it is not decisive. When making plausibility
findings, the Board must be sure that the applicant’s story could not have
occurred based on the evidence: Pulido v. Canada (Minister of
Citizenship and Immigration), 2007 FC 209, [2007] F.C.J. No. 281 (Q.L.) at
para. 37. The applicant’s explanation for staying behind to assist his siblings
was reasonable. Furthermore, the applicant’s life was not threatened until July
2007. His decision to leave Turkey was made shortly after the July 2007 threat. Rather than
consider this crucial piece of evidence, the Board simply ignored the nature of
the July 2007 detention and how it particularly differs from the applicant’s
previous arrests. When the applicant realized his life was in danger, he
immediately made arrangements to leave Turkey.
[37]
Although
it was open to the Board to conclude that the applicant was not of much
interest to the Turkish authorities, such a conclusion must be well-founded
based on the evidence. The Board was of the view that since the Turkish
authorities never charged the applicant and always released him he was of no interest
to the authorities. In reaching this conclusion, the Board failed to address
the overall documentary evidence with regard to the treatment of Kurds by
Turkish authorities (e.g. Tribunal’s record at pp. 314-347.). The documentary
evidence indicates that arrests, torture and subsequent releases are not
uncommon. The applicant’s story is not “so far outside the realm of what could
reasonably be expected” (Pulido, supra at para. 37).
[38]
The
respondent refers to Gavryushenko, supra, as support for the
proposition that the applicant should have sought refuge in the United Kingdom or the United States
prior to Canada. Further, at the hearing before this Court, the respondent relied
on Remedios v. Canada (Minister
of Citizenship and Immigration), 2003 FCT 437, [2003] F.C.J. No.
617. In Remedios, the applicants had left the United Arab
Emirates for the United States (Denver, Colorado)
in April of 2000 for a three-month visit with the intention of seeking
asylum in the United States. However, they were subsequently advised that
they would have a better chance to succeed with a refugee claim in Canada as opposed
to the United States. In Remedios, my colleague Justice
Snider held that the Board did not err in concluding that the applicants were country
shopping. However, in the case at bar, Remedios and Gavryushenko can be of no
assistance to the respondent. In finding that the applicant should have claimed
asylum in the United Kingdom, where the applicant’s other siblings were previously
successful, the Board committed an error. Indeed, the Board ignored the
essential fact that the applicant had not travelled and passed through the United
Kingdom. Thus, the Board’s finding that the applicant failed to make a
refugee claim in the United Kingdom cannot be sustained.
[39]
The
Board was also obliged to consider the applicant’s
explanation in support of claiming refugee status in Canada instead of the United
States. However, the Board failed to give due consideration to the
applicant’s explanation and instead concluded that the applicant lacked
credibility. Further, the Officer’s notes dated September 12, 2007 mentioned
that “[b]ased on the above information, Hasan Ay falls under an exception to
the safe third Country Agreement, because he has a relative in Canada who is a
permanent resident” (Tribunal’s record at p. 126).
[40]
Hence, the applicant’s decision to seek refuge in Canada made sense
given that he had family in Canada. The Board was obliged to consider
the applicant’s explanation in its reasons and committed an error in finding
that the “he [the applicant] chose, in the Panel’s view, to refugee shop,
rather that make claims in either [the] United Kingdom or the United States”
(Board’s decision at para. 11).
[41]
It
is open to the Board to consider a failure to produce corroborating evidence in
assessing a credibility finding. However, in the present case, to expect the
applicant to provide an election pamphlet used many years ago does not amount
to the kind of corroborating evidence that the applicant could reasonably, in
these circumstances, provide in comparison to documents that can reasonably be expected,
requested and obtained - e.g. school certificate; insurance claim; – (Bin,
supra).
[42]
In
conclusion, the Board’s finding that the applicant was not credible was
unreasonable given the applicant’s very plausible explanations and the overall
documentary evidence. This Court is of the opinion that the Board relied on irrelevant
or immaterial weaknesses in the applicant’s testimony and failed to give due
regard to the overall evidence before it.
b) IFA
[43]
The
Board suggested that even if the applicant would be considered credible, there
was a viable IFA in Istanbul and the applicant failed to demonstrate that he
would not be safe there, considering it is a major metropolitan area with a population
of 9.7 million people.
[44]
The
applicant submits that there was a breach of natural justice because he was not
given proper notice at the hearing before the Board with respect to the IFA.
[45]
In
Thirunavukkarasu v. Canada (Minister of Employment and Immigration) (C.A.), [1994]
1 F.C. 589, [1993] F.C.J. No. 1172,
at para. 10, the Federal Court of Appeal concluded that a proper notice is
given only when the applicant is notified that the IFA is to be considered
prior to a hearing so that the claimant can have an adequate time to adduce
evidence to demonstrate that there is no IFA. The notice requirement was
described by the Court in the following terms:
[…] there is an onus
on the Minister and the Board to warn the claimant if an IFA is going to be
raised. A refugee claimant enjoys the benefit of the principles of natural
justice in hearings before the Refugee Division. A basic and well-established
component of the right to be heard includes notice of the case to be met (see,
for example, Kane v. Board of Governors (University of British
Columbia), [1980] 1 S.C.R. 1105, at page 1114). The purpose of this
notice is, in turn, to allow a person to prepare an adequate response to that
case. This right to notice of the case against the claimant is acutely
important where the claimant may be called upon to provide evidence to show
that no valid IFA exists in response to an allegation by the Minister.
Therefore, neither the Minister nor the Refugee Division may spring the
allegation of an IFA upon a complainant without notice that an IFA will be in
issue at the hearing.
[46]
Upon
a review of the hearing transcripts before the Board, this Court concludes
there were many ambiguities in regards to the issue of IFA (Tribunal record at
pp. 566, 567 and 587). The respondent has not convinced this Court that the
Board provided sufficient and clear notice that the IFA was an issue and that
it was clearly addressed during the course of the hearing. This Court therefore
concludes that there was a breach of natural justice in failing to provide the
applicant with an opportunity to address the issue of IFA during the course of
the hearing and in making an adverse finding on that point.
[47]
In
conclusion, the Board’s decision was not reasonable in the circumstances and
the Court’s intervention is justified. The application for judicial review is
therefore allowed.
[48]
No
question was proposed for certification and there is none in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1. The
application for judicial review is granted;
2. The Board’s
decision is set aside;
3. The matter is
referred back to the Immigration and Refugee Board to be determined by a new
and different constituted Board;
4. No question
of general importance is certified.
“Richard
Boivin”
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