Date:
20121116
Docket:
IMM-1666-12
Citation:
2012 FC 1329
Ottawa, Ontario,
November 16, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
|
|
ILYAS AYDIN
ZEYNEP AYDIN
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicants seek judicial review of the January 24, 2012, decision of the
Refugee Protection Division of the Immigration and Refugee Board (“the Board”)
in which the Board determined that the Applicants were neither Convention
refugees nor persons in need of protection under sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA).
[2]
For
the reasons that follow, the application for judicial review is dismissed.
I. Facts
[3]
The
Applicants are a husband and wife who are citizens of Turkey. They came to Canada on September 29, 2009, and submitted their application for refugee
protection on October 19, 2009, on the basis of their fear of persecution for
their political views in Turkey.
[4]
Mr.
Aydin purports to have been a member of the leftist opposition party in Turkey, the Republican People’s Party (CHP), since December 1, 1993. Mrs. Aydin, while not
a member, also supports the party. Their refugee claims stem primarily from
Mr. Aydin’s experiences.
[5]
Mr.
Aydin recounts that he was arrested and beaten on several occasions because of
his political affiliations. He was not charged on any of these occasions, and,
each time, was released one to one-and-a-half days after he was detained. Mrs.
Aydin was arrested once for objecting to the arrest of her husband.
[6]
The
Applicants state that they fear the police, the far-right political party
Nationalist Movement Party (MHP), and the “idealist” mafia, to whom they
refused to give money.
II. Decision
under Review
[7]
The
Board refused the Applicants’ claims on the basis of the credibility of the
evidence submitted. It made several negative credibility inferences with
respect to: (i) the Applicants’ political affiliations; (ii) the Applicants’
allegations that they were subject to torture; and (iii) threats issued against
the Applicants’ business in Turkey.
(i) Political
Affiliations
[8]
The
Board gave little weight to, and drew a negative credibility inference from,
Mr. Aydin’s application for CHP membership. The Board was concerned about why
a renewal of the membership was written on the original application form, and
was not satisfied by the answers given by Mr. Aydin in this regard. Additionally,
the Board noted that the Applicants had not provided the original of the
document, and offered “no credible reason” as to why it was not before the
Board, particularly given the November 9, 2009, date of the membership’s
renewal that was handwritten on the document.
[9]
The
Board also found it reasonable to expect that there might have been more
information provided by the CHP party with respect to Mr. Aydin’s membership
and the incidents the Applicants suffered as a result thereof at the hands of
MHP party members and the police. In the absence of such additional
information from the party, the Board declared that it “simply [did] not
believe [the Applicants’] evidence as submitted” and made a negative
credibility finding.
(ii) Allegations
of Torture
[10]
The
Board made further negative credibility findings with respect to the
Applicants’ claims that they were beaten and tortured. First, the Board did
not find “sufficient credible evidence” to explain why the Applicants would
have treated themselves after their release from custody, rather than going to
a physician for treatment, or even for an examination that could corroborate
the damage they suffered as a result of the beatings.
[11]
Second,
the Board did not believe the evidence that the CHP party did not assist the
Applicants when Mr. Aydin was arrested and tortured in 2009. Instead, because
the Applicants claimed that the party had put pressure on the powers that be to
release Mr. Aydin in 2007, the Board found that there was “no credible reason
why this was not the case or help would not have been forthcoming” in 2009.
[12]
Third,
the Board noted that the psychiatric report submitted by the Applicants that
diagnosed Mr. Aydin with Post-Traumatic Stress Disorder did not off-set the
various credibility concerns already established. While the Board took the
report under advisement, it commented that Mr. Aydin could reasonably have
been expected to contemplate seeking assistance from a psychiatrist much sooner
than he did – three to four months prior to the hearing. This is particularly
so given Mr. Aydin’s history of depression, for which he was prescribed
medication in Turkey.
(iii) Threats
Against Business
[13]
Finally,
the Board made a number of negative credibility findings related to the
Applicants’ testimony about threats that were made against Mr. Aydin’s
construction business in Turkey. First, while the Board admitted photographs
of threats spray painted on the business into evidence at the hearing, it
afforded them little weight. The Board noted that Mr. Aydin could not recall
when the photographs had been taken, and testified that he had received them a
year or longer prior to the hearing. The Board did not find it “remotely
credible” that Mr. Aydin would forget to give such important documents to his
lawyer.
[14]
Second,
the Board was not satisfied that the Applicants’ son, who had taken to running
the business back in Turkey after his parents left, actually received
threatening emails as Mr. Aydin testified. Indeed, Mr. Aydin could not
remember when they were sent, what was contained in the emails, or who sent
them. The Board determined it was reasonable to expect that such emails would
be made available to it for its consideration. While it never asked the
Applicants to produce the emails when they came up at the hearing, the Board
made a negative credibility finding.
[15]
Finally,
the Board stated that it made “little sense to [it] why the claimants’ son did
not go to the police for their assistance [in response to either of the threats
described above] even though he believed things may get worse.” The Board
further determined that, if the Applicants had indeed been threatened, it was
“more likely” that the business would be burned or damaged in some manner, as
threatened, rather than standing and unharmed.
III. Issues
[16]
The
issues raised by the Applicants can be articulated as follows:
(a) Whether
the Board breached principles of procedural fairness; and
(b) Whether
the Board’s credibility findings were reasonable.
IV. Standard
of Review
[17]
Questions
of procedural fairness are reviewable on the standard of correctness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339
at para 43).
[18]
Credibility
findings are within the Board’s specialized expertise, and are thus owed
significant deference. The Board’s decisions on such matters are reviewable on
the reasonableness standard (A.M. v Canada (Minister of Citizenship and
Immigration), 2011 FC 964, [2011] FCJ No 1187 at para 20; Aguirre v
Canada (Minister of Citizenship and Immigration), 2008 FC 571, [2008] FCJ
No 732 at para 14). Reasonableness is concerned “mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para
47).
[18]
V. Analysis
A. Procedural
Fairness
[19]
The
Applicants contend that the Board breached principles of procedural fairness by
failing to notify them of its concerns with respect to: (i) the absence of the
original of Mr. Aydin’s membership application; and (ii) the absence of
supporting documentation from the CHP party in the Applicants’ application
package. They posit that they should have had the opportunity to address these
issues that were central to the Board’s negative credibility findings, and that
pertained to the credibility, accuracy or genuine nature of the information
they submitted.
[20]
The
negative credibility finding made by the Board with respect to Mr. Aydin’s
membership application was two-fold: (i) the Board did not understand why the
President of the party would handwrite a statement of Mr. Aydin’s current
membership on his original application; and, as the Applicants assert, (ii) the
absence of the original document in the record. While I am concerned about the
Board’s failure to ask why the original document had not been submitted, I do
not find that the original document is likely to have assuaged the Board’s
concern about the handwritten addition, a concern that the Applicants were
afforded an opportunity to address. As such, I do not find that the Board
breached a requirement of procedural fairness.
[21]
As
the Respondent points out, in drawing an adverse inference from the absence of
information from the CHP party, the Board was considering a lack of
corroborative evidence. Whether it is reasonable to demand corroborative
evidence is dependent on the specific facts of each case (Lopera v Canada (Minister of Citizenship and Immigration), 2011 FC 653, [2011] FCJ No 828
at para 31). On the facts of this case, it was reasonable for the Board
to expect such evidence from CHP, given the importance of establishing the
Applicants’ affiliations with the party and the purported longstanding
relationship between Mr. Aydin and the party. The Board is not required to put
all of its concerns regarding credibility before the Applicants, and the
Applicants were alert to the fact that credibility was at issue in this case (Morales
v Canada (Minister of Citizenship and Immigration), 2011 FC 1239, [2011]
FCJ No 1522 at para 24). I thus find that the Board did not breach a
requirement of procedural fairness in failing to alert the Applicants to the
adverse inference it would draw from the absence of information from CHP.
B. Credibility
Findings
[22]
The
Board is best placed to assess the credibility of applicants and of evidence,
and its determinations in such matters are owed significant deference (Jerome
v Canada (Minister of Citizenship and Immigration), 2011 FC 1419, [2011]
FCJ No 1753 at para 6; Aguebor v Canada (Minister of Employment and
Immigration) (FCA), [1993] FCJ No 732 at para 4).
[23]
In
assessing the reasonableness of the Board’s conclusions, the decision must be
considered as a whole. After reviewing the record and the parties’
submissions, I am satisfied that the credibility concerns cited by the Board
led it to a conclusion that was within the range of possible, acceptable
outcomes.
[24]
First,
it was reasonable for the Board to make a negative credibility finding on the
basis of the absence of the original of Mr. Aydin’s membership application. This
is particularly so given that the handwritten additions to the initial
application were made shortly after the Applicants’ arrival in Canada.
[25]
Second,
it was open to the Board to give little weight to the psychiatrist’s letter due
to Mr. Aydin’s delay in seeking the doctor’s assistance. Indeed, it is
not for this Court to engage in a re-weighing of the evidence. It was
reasonable for the Board to determine that the letter did not off-set its other
credibility concerns.
[26]
Third,
it was open to the Board to make a negative credibility finding with respect to
the Applicants’ failure to provide the photographs showing threats made on his
construction business in Turkey. Its conclusion that it was “not remotely
credible” that the Applicant would forget to give his lawyer a photograph that
would buttress his case until right before the hearing falls definitively
within the range of acceptable outcomes.
[27]
Finally,
it was reasonable for the Board to expect the Applicants to submit the
threatening emails purportedly received by their son. Such documents would
likely have corroborated their testimony and it was reasonable for the Board,
on the facts of this case, to expect corroborative evidence on this point (see Lopera,
above).
[28]
I
also find that its reasons are sufficiently justified, transparent, and
intelligible given the record before it. Given the centrality of these credibility
concerns to the Applicants’ claim, and the deference owed to the Board on
credibility matters, I am not satisfied that there are grounds to allow the
judicial review.
VI. Conclusion
[29]
The
Board’s decision, considered as a whole, is defensible in respect of the facts
and law. As such, it is reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
Email this Content