Date: 20071005
Docket: IMM-5568-06
Citation: 2007 FC 1026
Ottawa, Ontario, October 05,
2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ABDULVEHAP
DUNDAR
Applicant
and
THE MINSTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and
Refugee Board (the "Board"), wherein the Board determined that the
applicant was not a Convention refugee, nor a "person in need of
protection". The Board found that the applicant failed to provide
sufficient credible evidence to establish his claim.
BACKGROUND
[2]
The applicant alleges that he is a Kurdish Alevi
and that as a university student he became interested in politics and began to
support the People’s Democratic Party (HADEP) in 1996.
[3]
Specifically, he alleges that in December 1998,
July 2003, and July 2004, he was detained by police, interrogated and
mistreated for several days at a time.
[4]
The applicant then decided to leave Turkey and was issued a student visa on
September 1, 2004. He left Turkey for Canada on
October 12, 2004.
[5]
The applicant’s refugee determination hearing
was held on August 21, 2006 in which he claimed fear of persecution by the
Turkish authorities because of race and political opinion.
[6]
The IRB
found that the applicant had failed to provide sufficient credible and
trustworthy evidence to establish his claim.
[7]
The Board determined that while the applicant
was a cooperative witness, his responses regarding his leftist political
activities were general in nature.
[8]
Further, the Board asserted that the applicant
failed to disclose any reliable documents regarding his support for political
activities. The Board found the applicant’s explanation unsatisfactory as to
why he failed to obtain a letter confirming his involvement in leftist
politics. The Board also noted that there was no reliable objective
documentation regarding the Applicant’s allegations of mistreatment. The
documentary evidence indicates that there has not been any report of
ill-treatment against Alevis during the period of January 2002 to April 2005.
[9]
The Board also based its decision on a Statutory
Declaration from a Hearings Officer relating to a “secondary interview” carried
out with the applicant. The declaration revealed that over the course of the
interview, the applicant admitted to providing false information on his
Personal Information Form and that his purported involvement with HADEP was contrived
to further his refugee claim.
[10]
Despite the applicant’s explanation that he was
subject to pressure and intimidation during the secondary interview, that he
did not fully understand what was happening, and had no choice but to recant on
his earlier allegations, the Board gave significant weight to the Statutory
Declaration.
[11]
In summary, the Board concluded that the
claimant’s superficial testimony, his lack of diligence in obtaining documents,
and the information contained in the Statutory Declaration from the Hearings
Officer, led it to conclude that on a balance of probabilities the applicant
was not involved in political activities which resulted in any mistreatment at
the hands of Turkish authorities.
[12]
Credibility findings are questions of fact and
are therefore reviewable on a standard of patent unreasonableness (Aguebor
v. Canada (Minister of Employment and Immigration), (1993) 160 N.R. 315
(QL), Asashi v. Canada (Minister of Citizenship and Immigration), [2005]
FC 102, [2005] F.C.J. No. 129 (QL), at para. 6; Canada (Minister of Citizenship and Immigration) v. Elbarnes, [2005] FC 70, [2005] F.C.J. No. 98 (QL), at para. 19). Findings
reviewable on this standard will remain undisturbed unless they are “clearly
irrational” or “evidently not in accordance with reason” (Canada (Attorney
General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp.
963-64).
[13]
While presented by the applicant as relating to
credibility, the Board’s acceptance of the Statutory Declaration into evidence
is in my view a procedural fairness issue.
[14]
The jurisprudence of the Federal Court reveals
that an applicant must raise allegations of procedural fairness at the earliest
practical time. The earliest practical time has been defined as
[…] when the
applicant is aware of the relevant information and it is reasonable to expect
him or her to raise an objection. (Benitez v. Canada (Minister of Citizenship and
Immigration), [2006] FC 461, [2006] F.C.J. No. 631
(QL), at para. 220).
Thus, applicants bear the burden of raising objections to violations
of procedural fairness when they occur.
[15]
Given that the applicant failed to object at the
refugee determination hearing, regardless of the existence of any duty on the
part of the Board to require that transcripts and recordings of the secondary
interview be made available, the applicant is now precluded from raising this
argument.
[16]
Indeed, at the commencement of the hearing, the
Board member specifically asked the applicant’s counsel if he had any
objections to the disclosure of the Statutory Declaration, and received a
negative response. Therefore, the applicant has waived his right to raise this
issue on judicial review.
[17]
As for the
negative credibility determination, it is well established that the
“determination of an applicant’s credibility is the heartland of the Board’s
jurisdiction” (R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] FCT 116, [2003] F.C.J. No. 162 (QL), at para. 7). Thus,
this Court may not lightly substitute its decisions on credibility for those of
the Board.
[18]
A refugee claimant bears the onus of
establishing elements in his or her claim for protection (Gill v. Minister
of Citizenship and Immigration), [2004] FC 1498, [2004] F.C.J. No. 1828 at
para. 25). In Samseen v. Canada (Minister of Citizenship and Immigration), [2006] FC 542, [2006] F.C.J. No. 727 (QL), at para. 14, this
principle was held to include “giving truthful, coherent and non-evasive
answers to basic questions about events which are alleged to have happened to him
and which form the basis of his claim. […]”
[19]
Moreover, in evaluating the merit of a refugee
claim, “[…] the Board [is] entitled to take into account the applicant's lack
of effort to obtain corroborative evidence to establish [elements of his claim]
and to draw a negative inference of his credibility based on this.” (Samseen,
supra, at para. 30). Therefore, while corroborative evidence is not
determinative of a refugee claim, the Board is free to inquire into its
absence.
[20]
Indeed, this inquiry flows directly from Rule 7
of the Refugee Protection Division Rules, SOR/2002-228, which sets out that
[..] the
claimant must provide acceptable documents establishing identity and other
elements of the claim. A claimant who does not provide acceptable documents
must explain why they were not provided and what steps were taken to obtain
them.
[21]
In Amarapala v. Canada (Minister of Citizenship and
Immigration), [2004] FC 12, [2004] F.C.J. No. 62
(QL), at para. 10, Kelen J. addressed this issue when he asserted that:
It is well
established that a panel cannot make negative inferences solely from the fact
that a refugee claimant failed to produce any extrinsic documents to
corroborate a claim. But where there are valid reasons to doubt a claimant's
credibility, a failure to provide corroborating documentation is a proper
consideration for a panel if the Board does not accept the applicant's
explanation for failing to produce that evidence.
[22]
I concur with Kelen J.’s approach to
corroborative evidence. Where valid reasons to doubt a claimant’s credibility
exist, the Board may draw negative credibility inferences from a failure to
provide supporting evidence. However, in my opinion, these inferences
may only be drawn where the applicant has also been unable to provide a reasonable
explanation for his or her lack of corroborating material.
[23]
In the present case, the Board
indicated that it had other valid reasons for doubting the applicant’s
allegations. The applicant’s general answers regarding his political activities,
and commitment in his testimony and the Statutory
Declaration indicating that he had fabricated elements of his refugee claim,
together with his inadequate explanation for failing to provide corroborating
material were sufficient to impugn his credibility in the present case. This
conclusion is all the more reasonable considering the objective documentary evidence
indicating that Alevis do not suffer persecution in Turkey and that Kurds are
not persecuted solely for being Kurds.
[24]
The applicant has not convinced me that there
is any basis for the Court to interfere. The findings are based on the evidence
and the Board has given reasons in clear and unmistakable terms.
[25]
For these reasons, the application for
judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is
dismissed.
“Danièle Tremblay-Lamer”
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