Date: 20081008
Docket: IMM-1424-08
Citation: 2008 FC 1134
Ottawa, Ontario,
October 8, 2008
Present: The
Honourable Mr. Justice Zinn
BETWEEN:
SEYIT
OZAN GUNEY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
Applicant tried to bolster his claim for refugee status, more than a year
later, by inventing an additional basis for protection. The Board found that
this new lie rendered the Applicant’s evidence, as a whole, not to be credible
and thus did no real analysis of the rest of his story. For the reasons that
follow, I am of the view that this approach was unreasonable and that this
decision must be set aside.
BACKGROUND
[2]
Mr.
Guney is a 29 year-old Turkish national of Kurdish descent. He is an adherent
of the Alevi sect of Islam. He alleges that he faces persecution in Turkey on account
of his nationality and his political opinions, and that he is at risk of cruel
and unusual treatment, or torture, in Turkey.
[3]
In
the personal narrative submitted in support of his claim, Mr. Guney relates
that growing up in Istanbul, he faced discrimination and prejudice from
Turkish society at large on account of his Kurdish descent and Alevi faith,
particularly from nationalists and religious fundamentalists. In his adult
life, however, he has had to contend with more than generalized prejudice and
harassment. On three occasions he has been arrested and detained by the
Turkish authorities. In November of 2003, he was taken into custody and beaten
after being stopped for wearing a T-shirt with an Alevi slogan. In July of 2005,
he was arrested for participating in a demonstration commemorating the 1993 Sivas Massacre of
37 Alevis. He was detained overnight, accused of being a Kurdish separatist,
and beaten. This happened again at the following year’s commemoration. This
time he was beaten for refusing to provide the police with information about
others who had attended the Sivas event, and told that he would be watched.
[4]
At
the hearing of his claim, the applicant detailed the beatings in the following
terms: “Our eyes, we were blindfolded…There is a style which is called falaka,
and we were punished that way. And because we were – our hands were tied at
the back and we were blindfolded, we didn’t know where the blows were coming
from – and we were unable to defend ourselves. They were just hitting all
over.”
[5]
Mr.
Guney also suspects that in 2006 he was falsely reported as a PKK sympathizer
by a Turkish military officers’ son with whom he worked on a cruise ship – the “Summit” - in 2005/2006.
This because in May of 2006, upon his return to Turkey, he was interrogated
for three hours about his time abroad and “problems” he had with other Turkish
crew members. These crew members had accused him of being a PKK sympathizer
and one of them went so far as to assault him at a port of call.
[6]
It
was his third arrest and detention that prompted Mr. Guney to leave Turkey and seek
refugee status abroad. He came to Vancouver on July 28, 2006, ostensibly to
rejoin the “Summit” for an Alaskan run. Rather than board the
ship, however, he instead went to Toronto, where he claimed
protection on September 8, 2006. Subsequently, on November 23, 2007, he
amended his claim to include a second ground for protection, namely a fear of
persecution on account of his conscientious objection to mandatory military
service.
[7]
The
Refugee Protection Division’s decision in this matter is relatively brief. The
RPD found that Mr. Guney’s failure to initially include conscientious objection
as an element of his claim undermined his credibility:
The panel concludes that the
objection to military service which the claimant alleged at his hearing has
been fabricated, or made up, after completing the Personal Information Form in
order to bolster the claim for persecution. The panel does not accept, or
believe, that the claimant has an objection to military service in Turkey which would form the basis
for his claim to refugee protection.
[8]
The
RPD considered that this negative credibility finding could be extended to the
whole of Mr. Guney’s testimony, and stated as follows:
This leaves the claimant’s
allegations with respect to the history of three arrests and detentions.
However, because the applicant has manufactured one arm of his claim, one of
the two bases of his claim for protection in Canada, the panel finds that it cannot rely on
the other arm either.
That is, the claimant’s testimony in general is neither reliable nor credible,
and as such it cannot support his claim on any arm, or basis. (emphasis
added)
[9]
Having
made this statement, the RPD went on to note that even if it had found
that Mr. Guney had been arrested and detained on three occasions, this would
not demonstrate more than a mere possibility of persecution or exposure to
section 97 risks. It was noted that Mr. Guney has worked continuously in an
occupation requiring international travel without any hindrance. The RPD
closed its decision with the observation that “in Turkey today,
people are not in need of refugee protection simply because of their ethnic and
religious background.”
ISSUES
[10]
The
Applicant raises two issues:
(a) Whether the RPD
erred by extending a single discrete negative credibility finding to the
entirety of the Applicant’s testimony; and
(b) Whether, in
considering the other ground advanced by the Applicant, the reasons of the RPD
were tainted by the negative credibility finding and were deficient.
ANALYSIS
Did
the RPD err by extending a single discrete negative credibility finding to the
entirety of the Applicant’s testimony?
[11]
The
Applicant submits that by extending a single discrete negative credibility finding
to the entirety of the Applicant’s testimony, the RPD overlooked the
presumption of truthful testimony affirmed in Maldonado v. Canada, [1979]
F.C.J No. 248, and more recently in Zheng v. Canada, 2007 FC 974. The Applicant
also relies on the decision of the Supreme Court of Canada in R. v. Latour,
[1950] S.C.R. 19, in which it was held that a judge’s direction to a jury,
to the effect that if
on one point they found the evidence of a witness to be deliberately untrue
they could not believe him in any other particular, “was a misdirection of a
most serious nature and tantamount to an encroachment upon the right of full
answer and defence.”
[12]
The
Respondent submits that it was open to the RPD to extend its negative
credibility finding with respect to conscientious objection to the entirety of
the Applicant’s testimony, and relies on the Court of Appeal’s decision in Sheikh
v. Canada, [1990] 3 F.C. 238, in this regard. In that case, the Court
affirmed that “a general finding of a lack of credibility on the part of the
applicant may conceivably extend to all relevant evidence emanating from his
testimony”.
[13]
In
my view, in this case, the RPD’s extension of its negative credibility finding
on the claim of conscientious objection to the entirety of the Applicant’s
testimony was unreasonable.
[14]
Justice
Evans in Rahaman v Canada, 2002 FCA 89, explained that the Sheikh decision
relied on by the Respondent was intended to provide guidance with
respect to the “no credible basis” test which existed under the predecessor to Immigration
and Refugee Protection Act. At the time, a claim could be screened out at
the preliminary stage of a two-step determination process if it lacked a
credible basis. Sheikh clarified that in cases where a claimant’s
testimony is all that links him or her to the persecution alleged (aside from
general country of origin documentation), a finding that the claimant is not
credible effectively amounts to a finding that the claim as a whole has no
credible basis.
[15]
It
is true that Sheikh has had an after-life under the current Act, where
it has occasionally been taken as authority for the proposition that a
tribunal’s perception that a claimant is not credible on an important element
of his or her claim can undermine the claimant’s credibility altogether: See,
for example, Chavez v. Canada, 2005 FC 962, and Oukacine v. Canada, 2006
FC 1376. There are also other authorities submitted by the Respondent, some of
which do not reference Sheikh where the Board has rejected the whole of
a claimant’s evidence on the basis of a lack of credibility of a part of his
story and where reviews of the decisions have been denied by this Court.
However, in my view, those cases are all distinguishable from the case before
the Court here.
[16]
Sheikh
was
concerned with the relationship of a claimant’s testimony to other evidence,
not with the relationship of testimony to the testimony of the claimant as a
whole. Similarly, in other cases submitted by the Respondent, the Board examined
and compared the evidence of the claimant to other evidence, and it was on the
basis of this comparison that the claimant was found not to be generally
credible. In Pineda v. Canada (The Minister of Citizenship and Immigration),
2007 FC 889, the Board determined that “there were implausibilities,
inconsistencies, and discrepancies in his testimony and his Personal
Information Form (PIF), in relation to major elements or incidents alleged in
support of his claim”. In Tekin v. Canada (The Minister of Citizenship and
Immigration), 2003 FC 357, the Board similarly compared the testimony of
the claimant to his PIF narrative and to a United States Department of State
Country Report in finding that his evidence was not credible.
[17]
Those
situations are markedly different from the facts at hand. Here the Board disbelieved
the Applicant’s claim to have an objection to conscription because it was submitted
so long after the original PIF was provided. That finding was reasonably open
to the Board, as was its determination that the Applicant had advanced this
claim to bolster his refugee claim. However, in my view, it was not reasonable
for the Board to conclude that because the Applicant fabricated one part of his
story to bolster his claim, he was generally not a credible witness, especially
where the fabricated part had little or no bearing on the remainder of his
story. The fact that a witness has been caught in one lie, in itself, is
insufficient to discredit all of his evidence, where, as here, the evidence is
otherwise plausible and consistent.
[18]
Absent
a finding of a general lack of credibility on reasonable grounds, the Board
could not simply dismiss the remainder of the Applicant’s testimony. Having
said that, the Board did go on to consider the remainder of the Applicant’s claim
as if its negative credibility finding had not been made.
Were
the reasons of the RPD were tainted by the negative credibility finding and
were they deficient?
[19]
While
acknowledging that the RPD provided alternative reasons for rejecting the
claim, the Applicant submits that these reasons were not only tainted by the
negative credibility finding, they were also deficient in that the RPD made
them without referring to any documentary evidence whatsoever. It is submitted
that at the very least it would have been necessary to consider documentation
suggesting that torture of detainees, in particular politically active Kurds,
remains common in Turkey.
[20]
The
Respondent submits that the RPD’s alternative findings concerning the remaining
aspect of Mr. Guney’s claim were open to it. As it was held by the Court of
Appeal in Sagharichi v. Canada (Minister of Citizenship and Immigration), [1993]
F.C.J. No. 796, it is within the RPD’s authority to evaluate whether or not a
series of events is serious or systematic enough to constitute persecution;
that the Applicant was allegedly detained three times does not mean that he was
persecuted. What is more, it is not for the Court to re-weigh evidence the RPD
deemed insufficient to show more than a mere possibility of risk.
[21]
In
my view, the RPD’s alternative findings do not save its decision. The Board
offers only a peremptory conclusion that the Applicant’s three detentions and
beatings at the hands of the authorities don’t amount to persecution. The
Board merely states the evidence and its conclusion – it does not analyze the
evidence or refer to other evidence before it. There was an alleged nexus
between his detentions and beatings and Convention grounds that required at
least a minimal analysis of the documentary evidence of repression of Kurdish
activists in Turkey, in line
with the principle expressed in Cepeda-Gutierrez v. Canada, [1998]
F.C.J. No 1425. Without such an analysis, the decision is fatally lacking in
transparency and cannot be qualified as reasonable.
[22]
For all of these reasons the decision is set
aside. Neither party proposed a question for certification and on the facts of
this case, I am of the view that no question can be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application for judicial review is allowed and the matter is remitted for a
redetermination before a different panel; and
2.
No
question is certified.
.
“Russel W. Zinn”
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