Date: 20080526
Docket: IMM-3875-07
Citation: 2008
FC 664
Ottawa, Ontario,
May 26, 2008
PRESENT: The Honourable Mr. Orville Frenette
BETWEEN:
CAN GUNES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant seeks
review, under subsection 72(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act), of a decision of the Refugee Protection Division of the
Immigration and Refugee Protection Board (Board), dated August 15, 2007,
determining that he is neither a Convention refugee nor a person in need of
protection. Leave to seek judicial review in this matter was granted by Order
dated March 3, 2008.
I. Factual summary
[2]
The applicant, a 32-year
old citizen of Turkey, made an in-land claim for refugee
protection on February 22, 2006 on the basis of his religion, political
opinion, and membership in a particular social group under sections 96 and 97
of the Act. The Applicant is an Alevi Kurd and a supporter of the Socialist Democratic
Party (SDP).
[3]
The applicant alleged
that on a number of occasions he was arrested and detained by the police and had
suffered from the attacks by nationalists and fundamentalists in Turkey.
[4]
The applicant alleged
that in November 2005, while he was hosting a gathering at his house for
friends and members of the SDP, the police arrived, detained the applicant, and
accused him of liaising with an illegal organization. The applicant was then
allegedly tortured. He was cut in the back of the neck, suffered cigarette
burns on his hand and fist and cuts on his fingers. It is that incident that
caused the applicant to flee Turkey and come to Canada.
[5]
After his departure
from Turkey, the Police arresting his sister and his
father to find out where the applicant had gone. He fears what the Police would
do to him if he returned to Turkey.
II. The decision under review
[6]
In its decision, the
Board made negative credibility findings expressing doubt that the events of November
2005 happened. The Board concluded that the applicant’s case failed. The
Board then determined that there was insufficient evidence to find that the applicant
was in need of refugee protection on the basis of his religion and as a member
of a particular social group.
[7]
The applicant seeks
judicial review of the Board’s decision.
III. The standard of review
[8]
In order to assess the
Board’s decision, it is necessary to establish the appropriate standard of
review and apply it to the Board’s decision. The question is whether the Board
erred in making its negative credibility
findings. Credibility findings are
akin to factual findings.
[9]
In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (QL), the Supreme
Court of Canada has recently modified the analytical framework for judicial
review of an administrative action by abandoning, inter alia, the
distinction between reasonableness simpliciter and patent
unreasonableness, thus establishing two standards of review, i.e. correctness
and reasonableness.
[10]
The process of judicial
review now involves two steps outlined in paragraph 62:
…First, courts
ascertain whether the jurisprudence has already determined in a satisfactory
manner the degree of defence to be accorded with regard to a particular
category of question. Second, where the first inquiry proves unfruitful,
courts must proceed to an analysis of the factors making it possible to
identify the proper standard of review.
[11]
In paragraph 160, the
Supreme Court established that, unlike under the pragmatic and functional
approach, all factors need not be considered in every case in order to
determine the appropriate standard of review.
[12]
There is no reason why the
existing jurisprudence is unsatisfactory and should not apply in this case. Pursuant
to the existing jurisprudence, the Court should evaluate the decision against the old standard of
patent unreasonableness (Pushpanathan v. Canada (MCI), [1998] 1 S.C.R.
982, 226 N.R. 201).
[13]
According to the new standard, as set out in paragraph 161 of Dunsmuir,
“…decisions on questions of
fact always attract deference”, and “…when the issue is limited to questions of
fact, there is no need to enquire into any other factor in order to determine
that deference is owed to an administrative decision maker”. Reasonableness is
therefore the appropriate standard of review in this case.
[14]
In paragraph 47, the
Supreme Court observed as follows.
A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, 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.
[15]
In a very recent
decision of the Federal Court of Appeal in Canada (A.G.) v. Grover, 2008
FCA 97, [2008] F.C.J. No. 401 (QL), the Court wrote at para. 6:
A court conducting
a review for reasonableness inquires into the qualities that make a decision
reasonable and in particular whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law. The decision of the adjudicator does fall within that range.
IV. The evidence (summarized)
[16]
The applicant claims to
be an Alevi Kurd with leftist political views and suffered a history of arrests
and detentions by the police, going back to his last year of high school (1988
or 1989). He then became a supporter of the SDP, a legal political entity in Turkey. But he did not become a member because it would have
negatively affected his opportunities in the labour market.
[17]
He was arrested and
jailed for two days in March 2005, and he stated that during a political
gathering held at his house in November 2005, he was arrested by the police,
accused of having a liaison with an illegal organization. He was tortured by
the police and shows scars on his body resulting from this torture. He then
decided to seek protection in Canada.
[18]
The applicant filed
affidavits as to his ethnicity as an Alevi Kurd; he also filed a letter from a
representative of the SDP, stating that he participated in the SDP’s activities
until November 2005.
[19]
A letter, signed by a
nurse, Derya Hekim who administered “temporary treatment” to the applicant, who
exhibited “black and blue marks, cuts, scars and swellings (scars which she
suspected has been caused by cigarette burns)”. The applicant also filed a
medical report prepared by Dr. A.I. Hirsz, M.D., of April 23, 2007, stating
that he examined the applicant and observed objective signs of physical abuse,
scars, cuts and a classic cigarette burn scar at the back of his right foot (7
mm x 7 mm circle). These scars were consistent with the applicant’s testimony
of beatings and torture.
[20]
He had other symptoms
consistent with posttraumatic stress disorder. The applicant also produced a
report of March 24, 2007, prepared by Gerald H. Devins, Ph.D., a consulting and
clinical psychologist who made a psychological assessment of the applicant
concluding that the applicant suffered from a chronic posttraumatic stress
disorder consistent with his traumatic experience in Turkey. Dr. Donald E. Payne, a psychiatrist from Toronto, also confirmed the diagnosis of “posttraumatic stress disorder”.
[21]
The evidence includes international
documentation and reports on the situation in Turkey, which reveal that the
state forces in Turkey, either the police or other security forces,
exercised violent repression, torture and violation of basic human rights. This
documentation reveals the existence of police abuse of citizens who have
unsuccessfully sought refuge in foreign counties and had to return to Turkey.
[22]
A report of the U.S. Department
of State cites a 2006 report on Human Rights Practices in Turkey (published on March 5, 2007), mentioning torture by a
group of marked police officers who extinguished cigarettes on the body of a
detainee.
V. Applicant’s arguments
[23]
The applicant submits
that:
a.) The Board erred in its decision, failed to
assess the totality of the evidence. The Board ignored or discarded
corroborating evidence supporting his explanations concerning his religion, his
political views and the resulting persecution;
b.) The Board erroneously concluded that the applicant
was not credible and his recital of the events was implausible; and
c.) The Board failed to consider and give due
weight to the medical and psychological reports, particularly their value in
assessing the credibility of the applicant who suffered from post traumatic
stress disorder.
VI. Respondent’s arguments
[24]
The respondent submits
that:
a.) The Board’s finding regarding credibility
and plausibility of the evidence was well within their domain and was
reasonably justified by the facts in the record;
b.) The Board considered all of the evidence
and drew conclusions which were based upon the facts;
c.) The Board considered the documentary
evidence which did not confirm the applicant’s testimony; and
d.) The Board considered the opinions of the
psychologist and the medical doctor. These reports did not establish when these
objective signs of traumatic events in the past or scars may have occurred.
VII. Analysis
[25]
It is trite law to
repeat that administrative tribunals possess a vast discretion in matters of
assessing the facts, on questions of weight to be given to the evidence, on
credibility and plausibility.
[26]
Courts give deferential
treatment to administrative decisions on factual findings, weight and the
factors mentioned above. The Court will only intervene if it is shown that the
findings cannot reasonably be supported by any evidence (Stelco Inc. v. British
Steel Canada Inc., [2000] 3 F.C. 282, 252 N.R. 364 (C.A.)).
VIII. Did the Board adequately assess the
totality of the evidence?
[27]
The Board considered
the applicant’s evidence and numerous documents he produced to support his
version of the events and the torture he suffered in Turkey. The Board discarded his contentions that he supported the SDP and spent
wasteful time distinguishing membership or support to such a Party. The Board
simply stated that the events of November 2005 did not happen. It was a
fabrication. The supporting documentary evidence did not uphold the applicant’s
version.
[28]
The assessment of the
Board was too superficial, and even if it did not grant credibility of
plausibility to the applicant’s version, it could not ignore all the evidence,
such as the letter from the SDP confirming that he had made contributions to
the Party and the general documentation as to the treatment of Alevi Kurds in
Turkey and the evidence of torture (Kaur v. Canada (MCI), 2005 FC 1491
at para. 24, 143 A.C.W.S. (3d) 1094).
IX. Did the Board disregard the evidence of
torture?
[29]
I believe the Board
disregarded factual evidence such as the objective signs of torture such as
cuts, scars and psychological trauma with its consequences.
[30]
First, there is the
letter from the nurse who states she medically treated the applicant in Turkey for injuries, cuts and scars which could have resulted
from physical aggressions he described.
[31]
Second, the medical
report of Dr. A.I. Hirsz made in Canada in 2007, who
observed signs of torture or physical abuse on the body of the applicant, such
as “a classic cigarette burn”. He also wrote in his report that the applicant was
affected by posttraumatic stress disorder. The psychological report of Gerald
H. Devins, who made a psychological assessment of the applicant also concluded
he suffered from post-traumatic stress disorder; confirmed by Dr. Donald E.
Payne, a psychiatrist.
[32]
The Board accepted the
opinions of these three expert witnesses, yet it concluded it was not bound by
the view of medical people as to what caused these injuries. The Board also
disregarded the diagnostic of post-traumatic stress disorder and its effects on
implausibilities in the testimony of the applicant and his responses to
questions (Chen v. Canada (MCI), (1995) F.C.J. 1070 at para. 18 (QL)).
[33]
It is difficult to
understand how a tribunal could ignore the logical and obvious cause of torture
such as cuts and “cigarette burn”, especially when it is shown in the document
“Amnesty International report of November 16, 2004, at page 17) that in parts
of Turkey, systematic torture and impunity for
perpetrators, was still practised. There is no doubt that the Board could
evaluate expert witnesses opinions and decide on the quality of the evidence and
the extent to which it was central to a claim (Gosal v. Canada (MCI) (1998), 78 A.C.W.S. (3d) 577, [1998] F.C.J. No. 346 (T.D.) (QL).
[34]
The Board might be
sceptical in assessing expert opinion evidence particularly when the factual
foundation is based upon a summary of the version given to the expert by the
person being examined (Canada (MCI) v. Szoradi, 2003 FCT 388, 122
A.C.W.S. (3d) 343). In Gardanzari v. Canada (MCI), 2005 FC 1047, 141
A.C.W.S. (3d) 618, Justice Richard Mosley refused to grant a judicial review in
a case where a psychiatrist presented a report and later submitted an amended
report. Justice Mosley based his decision on the first report because the
factual foundation of the amended report was found to be not credible by the
Board.
[35]
In Ameir v. Canada (MCI), 2005 FC 876, 47 Imm. L.R. (3d) 169, Justice Edmond P. Blanchard, in a
well reasoned decision, granted an application for judicial review in a case
where the latter claimed refugee protection based upon a well-founded fear of
persecution because he had been arrested and beaten on several occasions since
he supported an opposition political group in Tanzania. The decision was based
upon the failure of the Board to give any weight to the clinical opinion of Dr.
Hirsz who noted scars and Dr. Devins’s and Dr. Payne’s psychological report who
reported the physical symptoms resulting from the ill-treatment suffered in the
hands of Turkish authorities (para. 27).
[36]
It follows that the
Board should have considered more profoundly the expert medical opinions in the
present case before deciding the credibility of the applicant’s version of the
facts and the implausibility of his story.
[37]
Failure to do so constitutes
a reviewable error which merits a referral back of this matter for
reconsideration.
JUDGMENT
THIS COURT ORDERS that:
1.
This
application for judicial review is allowed and the matter is to be referred to
another officer of the Board for reconsideration.
2.
No
question of general importance is to be certified.
“Orville Frenette”
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