Date: 20080215
Docket: IMM-1205-07
Citation: 2008 FC 201
Toronto, Ontario, February
15, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
YILMAZ
ATAY
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, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board (the Board), dated February 28, 2007, which found that the applicant was
neither a Convention refugee nor a person in need of protection.
[2]
The
applicant requested that the decision be set aside and the matter referred back
to a newly constituted panel of the Board for redetermination.
Background
[3]
Yilmaz
Atay (the applicant) is a citizen of Turkey. He alleges that he
fears persecution at the hands of Turkish nationalists, Sunni Muslim
fundamentalists and the police/security forces in Turkey because of
his Kurdish ethnicity, Alevi religion, and leftist political opinion and
activities. The applicant alleges that he was detained and tortured several
times at the hands of his persecutors. In May 2005, the applicant alleges that
the detentions became more serious and as a result, he made the decision to
seek international protection. The applicant obtained a Turkish passport and
made his way to Canada by ship. En route to Canada, the ship
upon which the applicant was traveling docked in Nigeria, Colombia, Dominican
Republic, Brazil and the United
States.
Upon arrival in Canada, the applicant filed an application for refugee
status. In a decision dated February 28, 2007, the Board found that the
applicant was not a Convention refugee, nor was he a person in need of
protection. This is the judicial review of the Board’s decision.
Board’s Decision
[4]
The
Board accepted the applicant’s identity as a national of Turkey. The Board
also accepted that the applicant was of Kurdish ethnicity, a member of the
Alevi religious community in Turkey, and a political leftist. Therefore, the
Board found that the applicant’s fear of persecution in Turkey was by
reason of three of the five enumerated grounds, namely ethnicity, religion and
political opinion.
[5]
The
Board found that the applicant was not a credible or trustworthy witness
respecting the central elements of his refugee protection claim. The Board
based its credibility findings on the following inconsistencies and
implausibilities:
- The
applicant told the immigration officer he had been arrested twice, whereas
he told the Board he had been arrested six times.
- The
applicant did not tell the immigration officer about the mistreatment he
experienced while completing his compulsory military service in Turkey, but
did elaborate on this before the Board.
- The
documentary evidence did not support the applicant’s allegations that he
was targeted by his superiors while completing his military service
because of his political beliefs.
- The applicant’s
explanation for failing to seek medical attention and to obtain a medical
report to verify the torture was unreasonable and undermined the
credibility of his alleged arrest, detention and torture.
- Given
that the documentary evidence regarding the passport process in Turkey
states that passport applicants were subject to thorough investigations,
it was implausible that the applicant had no real problems in obtaining a
passport and leaving the country given his alleged past arrests, and
torture.
- The applicant’s
explanation for his delay in leaving Turkey and his failure to seek asylum
in the countries he visited en route to Canada is
unreasonable and inconsistent with a subjective fear of persecution in Turkey.
In conclusion, the Board found that the applicant
lacked a subjective fear of persecution in Turkey.
[6]
The
Board proceeded to consider the documentary evidence on the treatment of
Turkish citizens of Kurdish ethnicity at the hand of ultra-national groups and
police, security services and government authorities in Turkey. The Board
found that the documentary evidence did not corroborate the applicant’s
assertion that he was subject to arrests, detentions, and torture because of
his Kurdish ethnicity. The Board found the applicant’s objective fear on the
ground of ethnicity not to be well-founded.
[7]
The
Board also considered the documentary evidence on the treatment of members of
the Alevi religious community in Turkey. The Board accepted
that Alevi’s are denied government funding for religious activities and that
their places of worship have no legal status. However, the Board found that
despite this discrimination, “Alevi’s are not prohibited from or denied the
right to freely and openly practice their religious beliefs.” In conclusion,
the Board found that the applicant’s fear of persecution in Turkey by reason of
his Alevi religious beliefs and activities was not objectively well-founded.
[8]
The
Board considered the treatment of unsuccessful asylum seekers in Turkey as per
the documentary evidence and found that that there was no serious possibility that
the applicant would be subjected to persecution as a failed asylum seeker
abroad if he returned to Turkey.
[9]
The
Board also considered the psychological assessment of the applicant. The Board noted
that the psychologist’s “clinical impression” was that the applicant met the
criteria for chronic posttraumatic stress disorder and that he required medical
treatment. The Board accepted the psychologist’s opinion that the applicant
suffers from “chronic posttraumatic stress disorder”, but stated:
Given my finding that the claimant lacks
credibility respecting the central elements of his refugee protection claim and
based upon the documentary evidence before me, I find that this psychological
dysfunction is not related to the claimant’s alleged past mistreatment at the
hands of Sunni Muslims, Turkish nationalists and the Turkish police or security
forces, and as such this Psychological Assessment does not assist the claimant
in his refugee protection claim.
[10]
The
Board then went on to address documentary evidence on mental health care in Turkey accessible to
the applicant.
[11]
And
finally, the Board considered the medical report respecting the cause of scars
the applicant alleges were a result his torture. The Board stated:
[…] given my finding that the claimant lacks
credibility respecting his allegations of arrest, detention, and past
mistreatment at the hands of the Turkish police, security forces and the
Turkish military, I find that the physician’s observations and conclusions are
equally consistent with the claimant suffering these injuries otherwise than as
a result of acts of brutality or torture at the hands of the Turkish police,
security forces and the Turkish military.
[12]
In
conclusion, the Board determined that the applicant was not a Convention
refugee, nor a person in need of protection.
Issues
[13]
The
applicant submitted the following issues for consideration:
1. In
deciding that the applicant’s evidence about his experiences in Turkey was not
credible, did the Board err in law or base its decision on patently
unreasonable findings of fact?
2. Quite
apart from the credibility of the applicant’s evidence about past persecution,
did the Board fail to assess whether he faces risk as a “political leftist”?
[14]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did
the Board err in failing to consider the impact of Dr. Devins’ psychological
report on the applicant’s credibility?
3. Did
the Board err in its treatment of Dr. Hirsz’s medical report regarding the
cause of the applicant’s scars?
4. Did
the Board err in failing to consider (i) the letter from the applicant’s wife?
(ii) the affidavit from the applicant’s cousin?
5. Did
the Board err in failing to conduct an assessment of the applicant’s objective
fear on the basis of being a political leftist in Turkey?
Applicant’s Submissions
[15]
The
applicant submitted that the Board failed to take the psychological state of
the applicant as per Dr. Devins’ report into account while assessing the
applicant’s credibility. It was submitted that the report indicated that the
applicant suffers from post-traumatic stress disorder and requires treatment by
a mental health professional. The applicant submitted that the details of Dr.
Devins’ evidence relevant to the applicant’s credibility includes:
- The
applicant has problems with concentration and memory.
- At times
his mind simply goes blank.
- He
forgets details of the past (e.g. specifics of episodes, dates).
- Concentration
and memory problems are common among people exposed to traumatic stress.
- Symptoms
may arise during the hearing in the form of difficulty understanding
questions, requests for questions to be repeated or rephrased, inability
to retrieve specific details of the past or an apparent inability to
formulate a coherent response. Should such problems become evidence, it
will be important to understand that they likely reflect the disorganizing
effects of traumatic stress rather than an effort to evade or obfuscate.
[16]
The
applicant submitted that as the Board accepted that the applicant suffered from
chronic posttraumatic stress disorder, it was obliged to consider the impact of
this condition on the quality of the applicant’s evidence. The applicant relied
on a number of authorities including Min v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1676, for the proposition that
where there is medical evidence before the Board that might explain
shortcomings in an applicant’s testimony, it is incumbent on the Board to
consider and give appropriate weight to such evidence. It is an error for the
Board to base a decision on a discrepancy between information given at the port
of entry and information given later in the process without taking into account
the evidence of the applicant’s psychological state (Singh v. Canada
(Minister of Citizenship and Immigration), [1996] F.C.J. No. 963).
Simply referring in its reasons to a psychological report addressing
posttraumatic stress disorder is not sufficient; the Board must consider
whether the psychological circumstance might help explain an omission, lack of
detail, or confusion regarding the events if these are the exact cognitive
errors referred to in the psychologist’s report (Rudaragi v. Canada
(Minister of Citizenship and Immigration.), 2006 FC 911). The Board cannot
merely state that it considered the report, it must provide some meaningful
discussion of how the medical condition affects its decision before making a
negative credibility finding (Fidan v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1606). The
applicant submitted that psychological impairment must be taken into account,
even where the main issue is plausibility of testimony (Chen v. Canada
(Minister of Citizenship and Immigration), [1995] F.C.J. No. 1070).
[17]
The
applicant submitted that the Board’s treatment of Dr. Hirsz’s medical report was
unreasonable. It was submitted that Dr. Hirsz’s report stated that the
applicant’s scars were “consistent with his history of beatings and torture”
and that one scar in particular was “classic cigarette burn torture”. The
applicant argued that it was perverse for the Board to find that given
credibility issues, the scars were equally consistent with causes besides
torture. It was submitted that the Board had no medical expertise and was not
qualified to judge that the injury could have had other causes. Moreover, the
applicant submitted that the Board failed to consider whether the documented
and accepted medical state of the applicant may have led to a reluctance to
reveal all of the details of the torture in his Personal Information Form. Such
a theory was discussed in an article written by Dr. Donald Payne which was
included as evidence before the Board when it made its decision. The Board made
no mention of Dr. Payne’s article in its reasons. It was submitted that the
Board cannot completely disregard medical reports that corroborate the
applicant’s account of torture merely because they do not indicate that they
are the only possible cause of the injuries (Kingsley v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 194; Thurairajah v.
Canada (Minister of Employment and Immigration), [1994] F.C.J.
No. 322).
[18]
The
applicant’s third argument was that the Board failed to consider three critical
pieces of evidence, specifically: (i) a letter from the applicant’s wife, (ii)
an affidavit from the applicant’s cousin, and (iii) a body of country
documentation regarding the prevalence of arbitrary detention and torture of
leftists in Turkey. With
regards to the letter from the applicant’s wife, the applicant submitted that
it corroborates his story of persecution. The applicant submitted that the
Board’s failure to even mention this document indicates that it was ignored.
“The more important the evidence that is not mentioned specifically and analyzed
in the agency’s reasons, the more willing a court may be to infer from the
silence that the agency made an erroneous finding of fact without regard to the
evidence” (Cepeda-Gutierrez et. al. v. Canada (Minister of Citizenship
and Immigration), [1998] F.C.J. No. 1425)). Moreover, corroborating
evidence cannot be disregarded on grounds that the Board has already determined
an applicant’s evidence not to be credible (Ahmed v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 456).
[19]
With
regards to the affidavit from the applicant’s cousin, the applicant submitted
that this evidence provided insight into the reasonableness of his decision not
to claim refugee status in Colombia, Brazil, the Dominican
Republic
or the United States while en route to Canada. The
applicant submitted that there is no indication that the Board considered this
evidence or assessed its credibility. Refugee claimants are not obliged by the
Convention to seek asylum in the first country they reach (Menjivar v. Canada (Minister of
Citizenship and Immigration), 2006 FC 11).
[20]
And
finally, the applicant submitted that the Board’s failure to consider
documentation about leftists facing arbitrary detention and torture in Turkey was a
reviewable error. It was submitted that a refugee claimant’s personal
characteristics, such as being a leftist, may give rise to an objective basis
for a fear of persecution, even where his or her evidence is otherwise not
credible.
Respondent’s Submissions
[21]
The
respondent submitted that the appropriate standard of review regarding
credibility and findings of fact is one of patent unreasonableness (Ahmad v.
Canada (Minister of
Citizenship and Immigration), 2004 FC 808). Significant deference
should be given to the Board’s evaluation of the applicant’s subjective
experience along with the objective evidence regarding that experience and
other country conditions at the heart of the refugee determination (Sivasamboo
v. Canada (Minister of Citizenship and Immigration) (1994), 87
F.T.R. 46 (T.D.)).
[22]
The
respondent submitted that the Board was not required to mention the specific
passages of the psychological report referred to by the applicant. It was
submitted that Dr. Devins’ report of the applicant’s symptoms was not an
independent, objective observation, but yet a recitation of the symptoms
reported by the applicant. The respondent submitted that the report provided
explanation as to why the applicant might be forgetful at the hearing, whereas
the Board took issue with the applicant’s forgetfulness before the immigration
officer. The respondent also took issue with the fact that the applicant’s
affidavit in these proceedings did not mention that he was suffering in any way
from post-traumatic stress symptoms at the hearing. It was also submitted that
the Board did not ignore Dr. Devins’ psychological report. In fact, the Board
accepted the report’s diagnosis and considered it in another context. The Board
is not always required to analyze a psychologist’s diagnosis and its impact on
the applicant’s credibility (Chavarria v. Canada (Minister of
Citizenship and Immigration), 2007 FC 969 at paragraphs 12 to 17). Only
when such reports are based on “independent and objective testing by a
psychiatrist” do they warrant more consideration (Gosal v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 346 (T.D.)).
[23]
The
respondent also submitted that the Board was not bound by Dr. Hirsz’s opinion
as to how the applicant received his scars. As the Board did not find the
applicant’s allegations of torture to be credible, it was open to the Board to
find as it did that Dr. Hirsz’s opinion did not cure the applicant’s lack of
credibility. The Board is not bound by the opinion of a medical expert when
that opinion is based on facts the Board has found not to be credible (Boateng
v. Canada (Minister of Employment and Immigration), [1995] F.C.J.
No. 517). The report may be given minimal weight when the Board makes an
adverse finding about the applicant’s credibility (Syed v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 597).
[24]
With
regards to the applicant’s allegation that the Board failed to consider a
letter from the applicant’s wife, the respondent submitted that the Board is
presumed to have considered all the evidence in the record before it (Malhi v.
Canada (Minister of Citizenship and Immigration), 2004 FC 802). It was
submitted that in any event, the Board mentioned the circumstances affecting
the applicant’s wife after he left Turkey in the course of
reviewing the applicant’s evidence.
[25]
The
respondent also submitted that the Board did not err in finding that the
applicant’s delay in leaving Turkey and his failure to claim asylum in countries
through which he travelled en route to Canada undermined
his subjective fear. It is reasonable for the Board to find that an applicant’s
credibility is undermined by his or her failure to flee the country of
persecution as early as possible or to make a refugee claim without delay (Huerta
v. Canada (Minister of Employment and Immigration) (1993), 157 N.R.
225 (F.C.A.); Arunasalam v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 1070 at paragraphs 29 to 33). Moreover, an
applicant’s credibility is undermined by his or her failure to claim refugee
protection in another country through which they travelled before coming to
Canada (Singh v. Canada (Minister of Citizenship and Immigration),
2007 FC 569). It was submitted that the Board expressly considered the
applicant’s explanations for his delay and for not seeking asylum elsewhere,
but rejected these explanations finding them unreasonable. These findings were
open to the Board and are not patently unreasonable.
[26]
As
to the argument that the Board failed to mention an affidavit from the
applicant’s cousin explaining why the applicant had not filed for asylum
elsewhere, the respondent submitted that the Board referred to the substance of
the affidavit as it was also provided in the applicant’s affidavit.
[27]
And
finally, with regards to the alleged failure to assess the documentary evidence
regarding the persecution of leftists in Turkey, the
respondent submitted that the Board expressly considered this.
Analysis and Decision
[28]
Issue
1
What is the appropriate
standard of review?
The Board’s credibility
findings are reviewed on a standard of patent unreasonableness and are
therefore accorded a high level of deference (Juan v. Canada (Minister
of Citizenship and Immigration), 2006 FC 809 at paragraph 2).
[29]
Issue
2
Did the Board
err in failing to consider the impact of Dr. Devins’ psychologist on
applicant’s credibility?
Both parties
submitted numerous examples of cases dealing with the Board’s consideration of
psychologist reports in support of their respective arguments. I do not find
the cases relied upon by the respondent helpful. The case of Charvarria above,
is distinguishable from the present case as in that case the Court found at
paragraph 15 that the psychologist’s report “[made] no reference to any
problems that [the applicant] might have in testifying at his upcoming hearing,
nor [did] it suggest that his psychological condition had any bearing on his
ability to testify at his previous refugee hearing.” Moreover, while in Gosal
above, the Court found that the Board did not have a duty to mention the
psychologist’s report, it also found at paragraph 14 that this duty “[depends]
on the quality of that evidence and the extent to which it is central to the
applicant’s claim.” In my opinion, the evidence in the present case is at the
core of the applicant’s claim for refugee status.
[30]
Of
the cases put forward by the applicant, I find the case of Fidan above,
very helpful. That case dealt with a situation almost identical to the present
one. In that case, the Board mentioned the psychological report, and accepted
the diagnosis of posttraumatic stress disorder, but stated that in light of
their credibility findings found that the mental disorder did not have any
relevance to the applicant’s well-founded fear of persecution (Fidan above
at paragraph 6). The Court in Fidan above, relied on C.A. v. Canada
(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1082 for the
proposition that the psychological report had to be considered in assessing the
applicant’s credibility as credibility was central to the Board’s decision and
the information contained in the report was relevant to this assessment. The Court
in Fidan above, stated at paragraph 12:
In this case, credibility was also the
‘linchpin” to the Board’s decision. Nonetheless, the Board failed to indicate,
how, if at all, the psychological report was considered when making its
credibility finding. The Board was obliged to do more than merely state that it
had “considered” the report. It was obliged to provide some meaningful
discussion as to how it had taken account of the applicant’s serious medical
condition before it made its negative credibility finding. The failure to do so
in this case constitutes a reviewable error and justified the matter being
returned to a newly appointed Board. [Emphasis added].
[31]
In
my opinion, the same principle is true in the present case. The Board’s
negative credibility finding was central to its decision.
I accept the psychologist’s opinion that
the claimant suffers from “chronic posttraumatic stress disorder”. However, given
my finding that the claimant lacks credibility respecting the central elements
of his refugee protection claim and based upon the documentary evidence before
me, I find that this psychological dysfunction is not related to the claimant’s
alleged past mistreatment at the hand of Sunni Muslims, Turkish nationalists
and the Turkish police or security forces, and as such this Psychological
Assessment does not assist the claimant in his refugee protection claim.
[Emphasis added.]
[32]
As
the contents of the psychological report were relevant to the Board’s
credibility findings, the Board should have taken the time to consider how the
applicant’s medical condition affected his behaviour before making its
credibility finding. As the Board did not do this, I have no way of knowing
what the Board’s credibility finding would have been had the report been
considered first. I am of the view that the Board made a reviewable error.
[33]
Because
of my finding on this issue, I need not consider the remaining issues.
[34]
The
application for judicial review is therefore allowed and the matter is referred
to a different panel of the Board for redetermination.
[35]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
IT IS ADJUDGED
that the
application for judicial review is allowed and the matter is referred to a
different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c.27:
|
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.
(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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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.
(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.
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