Date: 20110519
Docket: IMM-1781-10
Citation: 2011
FC 584
Ottawa, Ontario,
May 19, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
ALEV DEMIRTAS
|
|
|
|
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, SC 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 March 4, 2010, 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.
[2]
The applicant requests that the decision of the Board be set aside
and the claim remitted for redetermination by a differently constituted panel.
Background
[3]
Alev
Demirtas (the applicant), born on November 15, 1983, is a citizen of Turkey and a member of the
Kurdish Alevi minority.
[4]
The
applicant was a supporter of the Democratic People’s Party (DEHAP) until its
dissolution and then a member of Democratic Society Party (DTP). She
participated in pro-Kurdish activities such as the Newroz celebrations and
attests that she is dedicated to attaining rights for Kurdish people in Turkey.
[5]
Because
of her pro-Kurdish activities, the applicant alleges that on several occasions
she was detained, mistreated and sexually assaulted by Turkish authorities. In
one incident, she recounts in her Personal Information Form (PFI) that the
Turkish police tied her wrists and hung her from the ceiling. The applicant did
not disclose the extent of the abuse she suffered while in detention with her
family or party colleagues.
[6]
Despite
not knowing the details of her experience with the Turkish authorities, the
applicant’s father helped her leave Turkey. He told her to contact her cousin in Canada for assistance.
[7]
The
applicant arrived in Canada and claimed refugee
protection in October 2006.
[8]
In
February 2007, the applicant’s cousin threatened her and attempted to rape her.
He was subsequently charged with criminal harassment, sexual assault and
threatening bodily harm.
[9]
The
applicant included this assault as a part of her refugee claim before the
Board, claiming to fear her cousin should she return to Turkey, as he does not
have status in Canada and may also be returned to Turkey.
Board’s Decision
[10]
The
Board found that the applicant was not excluded under Article 1F(a) of the United Nations Convention Relating to the Status of Refugees, an issue that was raised and then abandoned by
the respondent.
[11]
The
Board found that the applicant was not credible and that she had not
established that her fear was objectively well founded.
[12]
The
Board drew several negative inferences from the applicant’s story:
- The
applicant did not report the abuse she experienced by police to her party
colleagues/leaders. The Board found it reasonable to expect that if she
was committed to the Kurdish cause, she would have told colleagues about
the abuse as evidence of police brutality and the need for change.
- The
applicant told her cousin, a relative stranger, and an interpreter about
the abuse, including the sexual abuse, but never told her parents, friends
or colleagues. The Board found that she did not provide a reasonable
response for this discrepancy.
- The
Board found it reasonable to expect that the applicant would have
discussed being beaten and hung from the ceiling with her parents, even if
she omitted the sexual abuse.
- The Board
drew a negative inference from the applicant using deception to gain a
student visa to enter Canada.
[13]
The
Board concluded that the applicant’s claim was untrustworthy and lacking in
credibility and found on a balance of probabilities that the incidents as
described did not occur.
[14]
The
Board then discounted the psychological evidence as it was based on the story
underpinning the refugee claim which the Board found to be unreliable.
Issues
[15]
The
issues are as follows:
1. What is the
appropriate standard of review?
2. Did the Board fail
to address the applicant’s sur place claim?
3. Were the Board’s
implausibility findings unreasonable?
Applicant’s Written Submissions
[16]
The
applicant submits that the Board’s credibility findings are seriously flawed. The
Board rejected the applicant’s evidence primarily on the grounds of
implausibility. Findings of implausibility should only be made in the clearest
of cases, should be well founded on the evidence and should be sensitive to the
cultural and individual context of the claim. Nothing in facts or explanations
given by the applicant was outside the realm of what could reasonably be
expected and nothing in the documentary evidence demonstrates that the events
could not have happened in the manner asserted by applicant. The Board member
should not compare the applicant’s actions to how she may have behaved, but
rather, must apply the standard of a similarly situated individual.
[17]
The
applicant provided various documents and made oral submissions before the Board
about the assault by her cousin and the risk she faces from her cousin if
returned to Turkey. Sur
place claims may be based on domestic or family violence faced in Canada. The
applicant submits that the Board failed to undertake any analysis of the sur
place claim even though it had a duty to consider and assess the risk.
[18]
In
reply, the applicant submits that her affidavit contain facts within her
personal knowledge and not arguments and conclusions.
Respondent’s Submissions
[19]
The
respondent submits that paragraphs 3 to 15 of the applicant’s affidavit should
be struck as they contain argument and conclusions.
[20]
The
respondent submits that the Court should not intervene where the Board’s
inferences and conclusions were open to it. It was not unreasonable for the
Board to conclude that if the applicant was committed to the Kurdish cause or
to ending police brutality then she would have told party leaders of the abuse
she endured while detained. It was reasonable for the Board to a draw negative
inference from the fact that the applicant did not disclose the abuse to her
family or friends, but did tell a distant cousin. The applicant had no response
to this discrepancy.
[21]
The
respondent submits that the applicant did not explain how the sexual abuse she
faced in Canada makes her a sur
place refugee. She did not allege in her submissions to the Board that she
is at risk of persecution if returned to Turkey because of
her profile as a victim of sexual assault.
Analysis and Decision
[22]
At
the outset, I note that the applicant’s affidavit does not contain argument and
conclusions in paragraphs 3 to 15 and is not contrary to Rule 81 of the Federal
Courts Rules, SOR/98-106 as submitted by the respondent.
[23]
Issue
1
What is the
appropriate standard of review?
Credibility findings lie at the
heart of the Board’s expertise in determining the plausibility of testimony and
drawing inferences from the evidence. Assessments of credibility are
essentially pure findings of fact and it was Parliament’s express intention that
administrative fact finding would command this high degree of deference (see Khosa
v Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 46). For this reason, in reviewing assessments of credibility, the
applicable standard of review is reasonableness.
[24]
In
reviewing the Board's decision using a standard of reasonableness, the Court
should not intervene unless the Board has come to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 47).
[25]
Issue
2
Did the Board
fail to address the applicant’s sur place claim?
This Court has consistently
held that the Board is under a duty to examine sur place refugee claims
that arise from events involving applicants in Canada. Often it is
the case that these events are activities actively participated in by refugee
claimants. However, that is not to say that domestic or sexual violence in Canada could not
form the basis of a sur place claim (see Da Mota v Canada (Minister of
Citizenship and Immigration), 2008 FC 386 at paragraph 4).
[26]
Further,
this Court held in Mohajery c Canada (Ministre de
la Citoyenneté et de l'Immigration), 2007
FC 185, that the Board must examine a sur place refugee claim even where
it is not raised by the applicant. At paragraphs 31 and 32, Mr. Justice Edmond Blanchard
held:
… I am of the opinion that
the issue of a sur place refugee
claim must be examined insofar as it perceptibly emerges from evidence on the
record that the activities liable to entail negative consequences in case of a
return, took place in Canada.
This must be done even though the applicants did not specifically ask the Board
to proceed with such an analysis.
It should be mentioned that
this analysis must be done even if the applicant's narrative on the whole or in
the part concerning his activities in his country of origin was not believed,
insofar as trustworthy evidence establishes activities in Canada in support of
the sur place refugee
claim. On this point, see the following decisions …
[27]
In
this case, the applicant provided the Board with documentary evidence of the
threats and assault by her cousin. This included correspondence from the
Ministry of Community Safety and Correctional Services, her cousin’s recognizance
of bail and correspondence from the Ontario Victim/Witness Assistance Program. She
furthered recounted the assault during the oral hearing, stating that she feared
her cousin if she were returned to Turkey. The tribunal officer
in the hearing noted that the applicant had made a sur place claim.
Finally, counsel for the applicant raised the sexual assault and the applicant’s
resulting fear as a further refugee ground in his closing submissions to the
Board. It is clear from the record that the applicant raised a sur place
claim as part of her refugee claim before the Board.
[28]
In
Manzila
v Canada (Minister of Citizenship and Immigration) (1998), 165 FTR 313,
[1998] FCJ No 1364, Mr. Justice James Hugessen held that a Board’s failure to
address an applicant’s sur place claim amounted to a reviewable error
and allowed the judicial review (at paragraphs 4 and 5). This was also the
result of Gebremichael v Canada (Minister
of Citizenship and Immigration), 2006 FC 547 where Mr. Justice James
Russell held at paragraph 52:
I agree with the Applicants
that the Board ought to have considered the sur place elements of the claim. The
failure to do so is also a reviewable error. The Applicants provided some
evidence and argument on this issue and the Board should have considered it.
Like Gebremichael above, the failure of
the Board to address the applicant’s sur place claim was a reviewable
error.
[29]
The
application for judicial review is allowed and the matter is referred to a
different panel of the Board for redetermination.
[30]
Because
of my finding on Issue 2, I need not deal with Issue 3.
[31]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[32]
IT IS
ORDERED that the
application for judicial review is allowed, the decision of the Board is set
aside and the matter is referred to a different panel of the Board for
redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, RSC 2001, c 27
|
72. (1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under this
Act is commenced by making an application for leave to the Court.
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.
|
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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.
|
Email this Content