Docket: IMM-1561-11
Citation: 2011 FC 1299
Toronto, Ontario, November 10,
2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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CELAL ERDURAN
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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 ORDER AND
ORDER
[1]
The
Applicant in the present Application is a Turkish citizen who first claimed
protection on the basis of fear of persecution and risk because he had evaded
military service in Turkey. In support of his claim the Applicant provided
detailed reasons in his Personal Information Form (PIF) dated March 12, 2007.
Subsequent to the filing of this first PIF, the Applicant filed a second PIF dated
March 23, 2010 in which he claimed protection on two additional grounds, not in
conflict with the first: his Kurdish ethnicity, and his identity as a gay man.
[2]
In
written submissions to the RPD, Counsel for the Applicant explained why the
second PIF citing the additional claims was filed:
In the case at bar, the claimant was
still struggling to come to terms with his sexuality, did not have a lawyer,
and was assisted by individuals from his own community whom he had witnessed
engaging in homophobic behaviour. His testimony and evidence have been
detailed, and consistent. None of his testimony or evidence has been
contradictory but rather new, or expanded information.
(Applicant’s Application Record, p.56)
The Applicant also explained the amendments
within his narrative in the second PIF:
The events that are mentioned
in my first narrative were real. But the reasoning behind them (my sexuality
and family background) was not expressed. I was not comfortable with my
translator or my gayness. Today I am openly gay; my friends know that I am gay.
It will be impossible for me to go back to Turkey after all these changes. I
am afraid I could be a subject of physical abuse and persecution either in the
Turkish Army or the homophobic Turkish society. Therefore I do not want to
return to my own country.
(Applicant’s Application Record, p.31)
It is not contested that it is not unusual
for an Applicant to file an amendment to an original PIF to establish new
grounds of claiming. Consequently, in the present case, three grounds were before
the RPD for determination.
[3]
In
the normal course, a proper disposition of a claim with three separate grounds
for claiming would involve consideration of each ground independently, and all grounds
considered cumulatively, resulting in a determination as to which of the four
options available might support the claim. Instead of approaching the
Applicant’s claim in this way, the RPD expressed the following conclusions as a
result of the filing of the second PIF:
As a result of the two
versions of this PIF narrative and lacking a reasonable explanation, I
am satisfied that the claimant was not a credible witness.
[Emphasis added]
[…]
Due to the omission from the
first version of the PIF and lacking independent evidence to support the
claimant of being Kurdish ethnicity, I am satisfied, on a balance of
probabilities, that the claimant has created this ethnicity to advance his
refugee claim. As a result, I make a negative inference.
[…]
I am satisfied that due to the
omissions of being both gay and of Kurdish ethnicity from the original PIF
narrative, a document the claimant indicated was translated to him and was
complete and true and correct, that the claimant has demonstrated he is willing
to create a story to advance his refugee claim.
(Decision, paras. 5, 8 and 13)
And with respect to
Counsel for the Applicant’s explanation for filing the second PIF, the RPD said
this:
Counsel makes submissions at
page 20 [of the Applicant’s Record] as to why these amendments were necessary.
He submits the claimant is still suffering from conflicting sexuality. I do not
agree. If the claimant fled Turkey fearful of serving in the military as a gay
man of Kurdish ethnicity, then this is the core of his claim.
(Decision, para. 14)
[4]
It
is important to note that the Applicant did give an explanation for the
amendment to his PIF that was rejected out of hand by the RPD without providing
a reason; this is unfair. In my opinion, the impugning of the Applicant’s
credibility because he filed an amended PIF unfairly had the effect of impeding
a proper examination of the substance of the Applicant’s claim. As a result, I
find that the RPD breached the duty of fairness owed to the Applicant, and, therefore,
the decision under review was made in reviewable error.
ORDER
THIS COURT
ORDERS that:
The decision
under review is set aside and the matter is referred back for redetermination
by a differently constituted panel.
There is no
question to certify.
“Douglas
R. Campbell”
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