Date: 20080617
Docket: IMM-4693-07
Citation: 2008 FC 749
Toronto, Ontario, June 17,
2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
YUSUF KARAOGLAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
A
Turkish citizen,
the applicant fears persecution at the hands of Turkish nationalists and the
police and security forces in Turkey as a result of his Kurdish ethnicity,
political opinion and activities with two pro-Kurdish political parties in
Turkey. The Refugee Protection Division (the Board) denied refugee
protection to the applicant due to a finding of a lack of credibility in his
account of persecution. The applicant seeks a judicial review of that decision
pursuant to s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the Act) and requests that the matter be referred back to
a differently constituted panel for redetermination.
I. The Facts
[2]
In
1999, the
applicant moved from the Kurdish city of Agri to take a position on a construction
project in the western town of Balikesir. He alleges harassment by
the police and Turkish nationalists during his stay there, including a brief
detention after which he returned to Agri.
[3]
In March
1999, the applicant participated in a Newroz or Kurdish New Year
celebration. He claims that he was one of the peaceful demonstrators arrested
at random and detained for two days, during which he was interrogated about the
Kurdistan Worker’s Party (PKK) and beaten.
[4]
In November 1999, the applicant
was called up for military service. He alleges that he was beaten several
times and was generally maltreated by Turkish officers and soldiers. Following
his discharge from the army, he returned to Agri and then took another position
in Balikesir.
[5]
In
Balikesir, he
regularly attended at the offices of HADEP, a pro-Kurdish political party
regarded by the Turkish security forces as the political wing of the PKK. The
HADEP offices were a place to socialize with other Kurds, and to get assistance
with various problems the local Kurds were facing. The applicant participated
in several HADEP protests, made small financial contributions and supported the
party during national elections in 1999 and 2002. He also supported DEHAP, the
successor party to HADEP, which was shut down by the Turkish Constitutional Court on March 13, 2003.
[6]
In
June 2005, the
applicant was taken to a police station, and questioned about his political
sympathies and links to the PKK. He alleges that he was beaten when the police
misinterpreted his lack of information as a deliberate refusal to cooperate.
He also asserts that the police told him to stay away from the DEHAP offices.
[7]
The
applicant claims
that he was next arrested in mid-August 2005, after police searched his home.
He was again detained overnight and beaten. After arranging for a visa through
a smuggler, he fled Turkey and applied for refugee status in Canada in October 2005. That
application was dismissed by the Board on October 19, 2007.
II. The Impugned Decision
[8]
The
Board found the
applicant’s claim not to be credible based on his failure to detail some of his
allegations during his port of entry interview, including the dates of his
alleged arrests and detentions by Turkish police. The board found that the details
now presented were embellishments which damaged the credibility of his story.
The Board also found the applicant’s explanation for his delay in leaving Turkey to be unreasonable and
inconsistent with a subjective fear of persecution in Turkey.
[9]
Turning to the documentary
evidence, the Board found that it was plausible that the applicant was briefly
detained by Turkish police as part of an initiative to preserve public order,
but that he would not have been specifically targeted for his ethnicity or political
views. The Board found that if such detentions had occurred, they did not
constitute serious harm amounting to persecution.
III. Issues
[10]
The
applicant submits
a list of seven errors allegedly made by the Board in its decision. These
errors can be restated as the follows:
1.
Did the
Board err with its findings on credibility?
2.
Did
the Board err in
failing to assess the risk to the applicant from his connection with the DTP
political party?
3.
Did
the RPD Board err
in his treatment of sections 96 and 97 of the
Act?
IV. The Standard of Review
[11]
The
standard of
review applicable to a finding of credibility or fact on the part of a Board is
one of reasonableness. This is a deferential standard which recognizes that certain
questions before administrative tribunals do not lend themselves to one
specific, particular result but instead give rise to a number of possible and
reasonable conclusions his is a deferential standard which recognizes that
certain questions before administrative tribunals do not lend themselves to one
specific, particular result but instead give rise to a number of possible and
reasonable conclusions (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, at paragraph 47). Where the decision
at issue falls within that spectrum, the Court should not interfere.
[12]
On
a question of
law, however, the review should conform to a correctness standard.
V. Analysis
A. Credibility Findings
[13]
The
applicant asserts
that he provided reasonable explanations for the member’s concern about
omissions of details from his Port of Entry (POE) and Personal Information Form
(PIF) declarations. He also claims that the Board erred in expecting that a
claimant will volunteer all information relevant to his claim, including that
which is not persecutory in itself. He further contests specific points of the
member’s decision and claims that the member was overzealous in trying to find
faults.
[14]
But the
applicant was specifically asked for the details of his refugee claim by the
immigration officer at entry and omitted then allegations of a serious nature
going to the heart of his claim that were considered by the Board in its
negative credibility finding. Decisions of this nature are at the heart of the
discretion of the Board and the finding was, unfortunately for the applicant,
open to the Board to make and should not be overturned unless there is no
ground for the decision, which is not the case here.
[15]
Amongst details of the refugee
claim not included in the POE but elaborated later in the process, the Court notes:
the allegation that the applicant was allegedly blindfolded by police in
mid-August 2005, the dates of his detentions, his problems with Turkish
nationalists, and his maltreatment during his army service. He also failed to
mention, until being questioned by his counsel about his testimony before the
Board, the difficulties he allegedly faced in getting his passport and leaving Turkey.
[16]
The
Board found that
the elaboration of the applicant’s claim at the various stages of the process
of detailing his refugee claim were attempts to embellish his claim and
therefore undermined his credibility. The applicant cites jurisprudence of
this Court to establish that the omission of minor or elaborative details from
the PIF does not allow the RPD member to draw negative inferences. While that
is a true statement of the law, the Court agrees though with the Board that in
this affair the allegations which were omitted by the applicant were serious
and numerous such that it was entitled to find the story as a whole
incredible. That finding was reasonable and opened on the evidence, and will
not be set aside.
B. Connection with the DTP Political Party
[17]
The
applicant also
asserts that the Board erred in not assessing his risk as a member of the DTP
party, a successor to the DEHAP party. He claims that his membership is a
material part of his claim and that he provided the Board with a letter from
the Chairman of the party attesting to his support.
[18]
The
Court notes that
the DTP party arose from the closure of the DEHAP party after the applicant’s
departure from Turkey, and that the applicant
testified that the membership of the two parties was the same. The Board
assessed the risk to the applicant from his association with two successive
pro-Kurdish political parties in Turkey.
The Court does not see that the Board’s failure to specifically name the third
incarnation of the same party in its assessment as ignoring a material aspect
of the claim.
C. Separate Section 97 Analysis
[19]
The
applicant also claims that the Board erred in failing to separately analyze any
risk he might face which would make him a person in need of protection for the
purposes of section 97 of the Law. The applicant also notes that the Federal
Court of Appeal has held that the analysis of section 96 and section 97 risks
are different and that a negative credibility finding does not automatically
cancel out a section 97 risk: Li v. Canada (Minister of Citizenship and
Immigration), 2005 FCA 1.
[20]
The
respondent asserts that the risk threshold of substantial grounds on a balance
of probabilities as required by section 97 is higher than that that of a mere
possibility under section 96. From this point, the respondent maintains that
the Board need not conduct a lengthy analysis of the applicant’s exposure to
risk where the member has found that there is insufficient evidence to meet the
threshold set out in section 96.
[21]
The Court
disagrees with the respondent on this point. While it is true that the
thresholds are different under the different sections of the Act, and even in
the various paragraphs of the Act, as set out in Li, above, it does not
then follow that the Board is relieved of its duty to assess the evidence in
one section on the basis of the finding in another. A failure to assess the
country conditions evidence for an objective risk to a claimant for the
purposes of section 97, where such evidence exists, is an error. But the
absence of such evidence may obviate the need to undertake the section 97
analysis: Lappen v. Canada (Minister of Citizenship and
Immigration),
2008 FC 434, [2008] F.C.J. No. 566; Bouaouni v. Canada (Minister of Citizenship and
Immigration),
2003 FC 1211, [2003] F.C.J. No. 1540; Brovina v. Canada (Minister of Citizenship and
Immigration),
2004 FC 635, [2004] F.C.J. No. 771.
[22]
That said,
however, the Court’s reading of the Board’s decision in this instance shows a
reasonable assessment of the country conditions documentary evidence in
relation to the risk to the applicant. While it would have been preferable for
the Board to conduct entirely separate analyses of the risks alleged by the
claimant under section 96 and paragraphs 97(1) (a) and 97(1)(b),
it was not necessary here since the reasons of the impugned decision indicate
that the member did assess sufficiently the objective risk to the claimant in
the country conditions evidence.
VI. Conclusion
[23]
In brief and after
considering all the circumstances in issue, this is a case where the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law. The result may not be what the applicant
expected, and this is obviously for that reasons that the applicant points out
to evidence favouring a different result. But this Court, having already
concluded that the decision is reasonable on all the issues, will resist this
type of invitation, that is to analyse the evidence differently than the Board
did in order to substitute its own conclusion to the Board’s conclusion. This
is not the role of this Court.
[24]
Consequently
the Court will
dismiss the application.
[25]
No
question of
general importance was put forward for certification, and none will be
certified.
JUDGMENT
FOR THE
FOREGOING REASONS THIS COURT dismisses the
application.
“Maurice E. Lagacé”
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