Date:
20130705
Docket:
IMM-8513-12
Citation:
2013 FC 752
Ottawa, Ontario, July 5, 2013
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
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ZEYNEL UYGUR
NEJLA EKICI
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicants seek judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of the decision
of the Refugee Protection Division of the Immigration and Refugee Board [the
Board] made on August 2, 2012, which determined that they were not Convention
refugees pursuant to section 96, nor persons in need of protection pursuant to
section 97 of the Act.
[2]
Ms
Ekici and Mr Uygur, mother and son, are citizens of Turkey who arrived in Canada in March 2009 within days of each other, both making a brief stopover in the United States of America. The applicants are Alevi and assert that they were detained
several times due to their religious beliefs and their family’s political
activities, which included taking part in demonstrations. They assert that the
family home was raided, and that they were detained by the authorities on
several occasions dating back to 2002 and beaten on some occasions. Mr Uygur
also claims that he was detained in 2007 and 2008 for distributing political
pamphlets and again in January 2009 at which point he was forced to sign a
statement indicating that he was involved with illegal groups, which was not
true.
[3]
The
Board provided a thorough and lengthy decision and, after considering all the
evidence and the extensive negative credibility findings, individually and
cumulatively, found that on a balance of probabilities the applicants were not
being pursued by Turkish authorities as they alleged. The Board accepted that
the applicants were Alevi and acknowledged that there was discrimination
against Alevis in Turkey. However, based on all the objective country condition
evidence, the Board concluded that on a balance of probabilities, the applicants
would not face discrimination amounting to persecution, or a risk of harm as a
result of being Alevi.
[4]
The
Board noted that the applicants’ hearing had been adjourned several times to
accommodate Ms Ekici’s headaches and other illness. The Board refused the
applicants’ request for an indefinite postponement of their hearing given that
the applicants had over two and a half years to prepare for their hearing and
despite that the female applicant’s headaches had been a long-standing problem,
she had not pursued an appointment with a specialist until after the hearing
had been scheduled. However, the Board did grant a further adjournment to
accommodate the female applicant and, as a result, the hearing took place over
five sittings and over a seven month period.
[5]
The
Board made several negative credibility findings from the applicants’ evidence,
including:
•
Mr
Uygur had said he was not a member of the Pir Sultan Abdal Association but
later provided a membership card and other inconsistent information about whether
he had one or two of such cards. The membership cards were undated and
unsigned;
•
Mr
Uygur provided inconsistent information about when he became a member of the Pir
Sultan Abdal Association , which was either in 2004 or in 1998-99 when he
attended with his mother;
•
Mr
Uygur had limited knowledge of the Pir Sultan Abdal Association and its origins
and activities. In addition, he did not have any receipts to support his claim
that he had made donations to the group. He also had little knowledge of other
Alevi organisations that he had indicated he was involved with;
•
Mr
Uygur provided vague information about the political pamphlets he had
distributed and was unaware of their content;
•
Mr
Uygur could not provide any details of the demonstrations he attended in Turkey;
•
Ms
Ekici demonstrated a very limited understanding of what it meant to be Alevi;
•
The
applicants had not become involved in the Canadian Alevi Association for two
years after their arrival, despite their alleged strong support for Alevis in Turkey. Their explanation that it was inconvenient to travel by bus and subway to the
association was not accepted by the Board. In addition, they provided
inconsistent dates about their membership in the Canadian Alevi Association;
and,
•
The
applicants’ oral evidence was that they left Turkey legally. However, Mr
Uygur’s Personal Information Form [PIF] stated that he used an agent to leave Turkey. Objective evidence indicated that if a person were really wanted by the authorities
in Turkey, they would not have been able to leave legally.
[6]
The
Board found that the applicants had failed to establish their claims of
persecution or political profile, perceived or otherwise, with credible and
trustworthy evidence. The applicants had provided contradictory, inconsistent
and incomplete evidence, had given evasive and changing testimony at the
hearing, and had not provided sufficient corroboration of their claims.
[7]
The
Board concluded that the applicants were not Convention refugees as they did
not have a well-founded fear of persecution for a Convention ground in Turkey. The Board found that they were not persons in need of protection as their removal
to Turkey would not subject them to a risk to their lives of cruel and unusual
treatment or punishment. The Board also found that there were no substantial
grounds to believe that their removal to Turkey will subject them personally to
a danger of torture.
Issues
[8]
The
applicants submit that the Board’s credibility findings were unreasonable. The
applicants further submit that the Board failed to take into account the
psychological reports which indicated that both applicants, and particularly
the female applicant, suffered from memory problems as a result of their
persecution in Turkey, which could provide an explanation for some of the
credibility findings.
[9]
In
addition, the applicant submits that the Board erred by ignoring the PIF of the
applicants’ daughter and sister, Fatma, which described her mistreatment due to
her political activism. Fatma had been granted refugee status in 2007. The
applicants’ submit that this evidence was corroborative of the applicants’
claims.
[10]
The
respondent submits that the Board’s credibility findings were extensive,
justified and are owed deference. The psychologist’s reports were considered
and cannot be used to bolster credibility, nor do they provide an explanation
for the numerous inconsistencies or for the lack of corroboration of the
applicants’ evidence. The respondent notes that Mr Uygur provided most of the
oral testimony and that he did not indicate or exhibit any problems at the time
of the hearing. The respondent also submits that the Board did not err by not
considering the contents of Fatma’s PIF as each claim must be determined on its
own merits and the events described in Fatma’s PIF would not have sufficiently
corroborated the applicants’ claims.
Standard
of review
[11]
The
parties agree that the applicable standard of review is that of reasonableness.
The jurisprudence emphasizes that where the standard of
reasonableness applies, the role of the Court on judicial review is to
determine whether the Board’s decision “falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at para 47. There may be several reasonable outcomes and “as
long as the process and the outcome fit comfortably with the principles of
justification, transparency and intelligibility, it is not open to a reviewing
court to substitute its own view of a preferable outcome”: Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 59. The
Court will not re-weigh the evidence or substitute any decision it would have
made.
[12]
The Board’s
credibility findings, given its role as trier of fact, warrant significant deference:
Lin v Canada (Minister of Citizenship and
Immigration), 2008 FC 1052, [2008] FCJ No
1329 at para 13; Fatih v Canada (Minister of Citizenship
and Immigration), 2012 FC 857, [2012] FCJ No 924 at para 65. In this
case, the Board considered numerous inconsistencies, vague and evolving
testimony, offered the applicants opportunities to clarify their answers, and
observed the applicants and heard their testimony at five sittings.
Do
the psychologist’s reports provide an explanation for the credibility issues?
[13]
Psychological
reports were prepared by Dr Devins for Mr Uygur in November 2010 and for Ms
Ekici in June 2011; in other words, a year and six months respectively before
the first of the five sittings of the Board. The reports include a caveat
from Dr Devins for what he indicates may appear to be redundant or repetitive
in reports done for refugee claimants, which is that he uses a standard and
consistent form of assessment, the results of which are described using
consistent and similar terms. While I do not question his credentials, methods,
experience or explanation, I observe that the report for Mr Uygur and Ms Ekici
is in many respects identical word for word. The findings with respect to each
applicant were reported by Dr Devins after a one hour interview — one in
November 2010 and the other in June 2011.
[14]
The
applicant and respondent both agree that the psychological report cannot be
used to support the claims of persecution simply because the same events were
communicated to the doctor.
[15]
The
applicant submits, however, that the psychological reports provide an
explanation for some of the Board’s credibility findings. I do not agree.
[16]
The
report regarding Ms Ekici indicates that she has headaches for which she takes
over-the-counter medication and she has stress related symptoms including
problems with concentration and memory. The report also notes that this would
be exacerbated under the stress of a refugee hearing. The report also notes
that she becomes distracted and forgetful in day-to-day activities (including
forgetting names and telephone numbers and misplacing her keys). Exactly the
same examples are noted regarding Mr Uygur.
[17]
The
psychological report for Mr Uygur was very similar. He also suffers headaches
which are treated with over-the-counter medication. Dr Devins noted that his
stress-related symptoms include problems with concentration and memory.
[18]
In
both reports, Dr Devins notes that “Stress-related cognitive problems can lead
to difficulties in providing clear and consistent testimony. Should such
problems become evident, it will be important to understand that they likely
reflect the disorganizing effects of traumatic stress rather than an effort to
evade or obfuscate.”
[19]
The
Board acknowledged the psychologist’s reports and noted that the reports could
not be regarded as a “cure-all” for the deficiencies in the testimony. The
Board also noted that it was aware of the stress inherent in the hearing
process. The Board had repeated several questions to the applicants to provide
an opportunity for more clarity. In addition, the applicants had many
adjournments to permit Ms Ekici to attend to her headaches and stress. As noted
by the respondent, most of the testimony was provided by Mr Uygur, not by Ms
Ekici.
[20]
The
case law has focussed on whether the Board’s consideration of a psychiatric or
psychological report is reasonable, and as such, will vary with the particular
circumstances.
[21]
In
Krishnasamy v Canada (Minister of Citizenship
and Immigration), 2006 FC 451, [2006] FCJ No
561,
a psychiatric report was requested and submitted as a result of incoherent and
inconsistent testimony given by Mr Krishnasamy. The Board considered the report
and found that it did not provide a satisfactory clarification. Counsel for Mr
Krishnasamy also submitted that the psychiatrist’s letter could address the
overall credibility concerns, including his evasiveness and inconsistency.
[22]
Taking
into account the Board’s assessment of the evidence, Justice Layden-Stevenson
noted the following:
[21] Whether
the report was tendered to explain Mr. Krishnasamy's behaviour during the May
segment of the hearing, as I believe it was, or whether, arguably, it
constituted a means by which to justify his previous testimony is of no
consequence because, in my view, the ID Member's treatment of the psychiatric
report was not patently unreasonable.
[22] In Karli
v. Canada (Minister of Citizenship and Immigration) (2005), 137 A.C.W.S.
(3d) 1007; 2005 FC 276, one of the issues was whether the board properly assessed
the medical evidence and, in particular, medical reports relating to the
applicant's moderate cognitive impairment. The applicant argued that the board
erred in its appreciation of two medical reports in the context of its negative
assessment of his credibility. In dismissing the applicant's application for
judicial review, Chief Justice Lutfy, at paragraphs 13 and 14 stated:
¶ 13 In my
view, the member set out her reasons for her negative finding of credibility in
clear and unmistakable terms. Her thorough questioning of the applicant on the
first day of the hearing to test his ability to participate in the process was
precipitated by her earlier review of the medical reports. She allowed the
designated representative to assist the claimant during the hearing by
repeating questions, when necessary, in more direct and simpler terms. In the
two penultimate paragraphs of her decision dealing with the psychiatric and
psychological assessments, she found that these medical reports did not affect
her negative finding of credibility.
¶ 14 In my
view, this conclusion was open to her. She was alert and sensitive to the
medical reports prior to and throughout the hearing. She knew the applicant had
cognitive challenges. On my review of the transcript, her negative finding of
credibility was one she was able to make, even taking into account the medical
reports...
[23] These
comments are apposite here. The ID Member's reasons, as well as the transcript,
reveal that the Member was "alert and sensitive" to the psychiatric
report. Moreover, the negative finding of credibility was open to the ID
notwithstanding the report. If the ID had failed to consider the report, or had
disbelieved its contents, the situation might well be different. However, that
is not the case. The Member was aware of Mr. Krishnasamy's diagnosis and did
not fail to acknowledge it in the credibility assessment. The ID Member's
determination that the psychiatric report did not provide the better
explanation for the inconsistencies and evasiveness in Mr. Krishnasamy's
evidence was a determination for the Member to make. The conclusion is neither
patently unreasonable, nor unreasonable, in the circumstances. It is settled
law that the court's function is not to substitute its opinion for that of the
decision maker, even where it might have arrived at a different result.
[My emphasis]
[23]
The
issue of psychological reports and their usefulness in addressing credibility
findings was raised more recently in Pjetri v Canada (Minister of Citizenship
and Immigration), 2013 FC 376, [2013] FCJ No 429. At paras 42-45, Justice
Noël
provides the following comments with respect to the proper approach to be used
with this type of evidence:
42 Mr.
Pjetri submits that the RPD did not provide any explanation as to whether his
psychological situation explains the omissions or lack of detail. This is what
was done throughout the decision and specifically at the beginning when the RPD
stated that it would usually allow for "more leeway" but that in the
circumstances, the contradictions and omission are too obvious to be
attributable only to PTSD (Krishnasamy v Canada (Minister of Citizenship and
Immigration), 2006 FC 451 at para 23, 2006 CarswellNat 969).
Although the psychological report indicates that Mr. Pjetri suffers from PTSD,
the RPD found that such consideration was not relevant to the inconsistencies
noted by the RPD, which is a reasonable determination (Paplekaj v Canada
(Minister of Citizenship and Immigration), 2012 FC 947 at paras
18-19, 221 ACWS (3d) 940). Moreover, there was no evidence of memory loss
in the case of Mr. Pjetri put before the RPD that could explain the lack of
credibility of his story.
43 As for Ms. Vucaj, the RPD
did address the content of her psychological report. It specifically referred
to it at the beginning of its decision and it was one of the considerations for
allowing Ms. Metcalf's assistance at the hearing. The RPD's credibility
findings were justified: her inability to provide dates was one of the components
of the RPD's reasoning on credibility as a number of other important factors
justified an adverse inference as to the credibility of her claim:
1. She did
not provide evidence to show that she was hospitalized or documents to explain
that it was impossible to retrieve her medical record in Albania.
2. She
did not provide a copy of the report prepared by the police while she was at
the hospital.
3. She
gave contradictory answers with respect to the date she was hospitalized and
the period during which she lived with her late husband's family.
4. She gave
inconsistent evidence as to who requested the divorce.
44 Although
memory problems are listed as one of the symptoms of Ms. Vucaj's psychological
condition, it was reasonable for the RPD to determine that it is not a
sufficient explanation considering the numerous inconsistencies in her
testimony and her failure to provide supporting documents.
45 Furthermore,
a reading of the transcript shows that the RPD was alert and sensitive when dealing
with both Applicants. The RPD was aware of the state of mind of each Applicant,
relied when needed on Ms. Metcalf and was sensitive to the individuals when it
questioned them. This sensitive approach allowed the RPD to make an in-depth
assessment of the situation, consider the answers given by the Applicants and
then make the necessary pertinent credibility findings.
[24]
In
the present case, the Board did not err in its assessment of the psychologist’s
reports. The Board did not ignore the reports, but reasonably found that they
did not provide an explanation for the negative credibility findings arising
from the testimony of the applicants. The Board’s extensive credibility
findings, which included the inconsistent and evolving testimony, as well as the
inability of the applicants’ to provide details of the key aspects of their
claims of political persecution, went beyond those that could be attributed to
the applicants’ stress as exacerbated by the hearing process.
Did
the Board err in not considering Fatma’s PIF as corroborating evidence?
[25]
The
applicants submit that the Board ignored the PIF of their sister and daughter,
Fatma, which mentioned that her political activities also involved her mother
and brother and that this corroborates the applicant’s claims that they were
targeted, in part, due to Fatma. I acknowledge that the Board did not refer to
this PIF in its reasons.
[26]
The
applicants rely on Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 1998 FCJ No
1425, 83 ACWS (3d) 264 [Cepeda], noting that although the Board
need not refer to each piece of evidence, the more important the evidence, the
greater the burden on the Board to consider it.
[27]
In
Cepeda, Justice Evans noted at paragraph 17:
“…
In other words, the agency’s burden of explanation increases with the relevance
of the evidence in question to the disputed facts. Thus, a blanket statement
that the agency has considered all the evidence will not suffice when the
evidence omitted from any discussion in the reasons appears squarely to
contradict the agency’s finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact. ”
[28]
While
the applicants submit that this evidence was important and corroborative, it is
settled law that refugee claims are to be considered on their own merits. The
fact that one applicant is granted refugee status based on a similar experience
is not binding on the Board as the Board must assess each claim individually,
and previous decisions, even regarding family members, may have been wrongly
decided: Bakary v Canada (Minister of Citizenship and Immigration),
2006 FC 1111, [2006] FCJ No 1418 at paras 9 and 10.
[29]
In
Cortes v Canada (Minister of Citizenship and
Immigration), 2008 FC 254, [2008] FCJ No 323, Justice Barnes
considered whether the Board had erred by not considering the outcome of
earlier refugee hearings of members of the applicants’ family. He noted at para
10:
[10] It was
forcefully argued on behalf of the Applicants that the Board erred in its
analysis of the significance of the claims to protection successfully brought
by Ms. Mantilla Cortes' sister and, more recently, by her niece. There is
no doubt that the Board declined to take the disposition of these earlier
claims into account but the Applicants cited no authority to establish that the
Board was under any legal obligation to do so. The Board’s approach to
this issue is in accordance with the authorities including Bakary v. Canada (Minister of Citizenship and Immigration), 2006 FC 1111, 155 A.C.W.S. (3d) 161,
where Justice Yvon Pinard held at paras. 9 and 10:
[9] As for the respondent’s
submissions, he first criticizes the IRB for failing to analyze the criterion
of membership in a particular social group, i.e. the family. According to him,
the IRB’s analysis did not dispute that he is a member of the Bakary family
which, according to the evidence, has suffered persecution: several members of
his family have had to seek refuge abroad, and a number of them have been
received in Canada as refugees.
[10] In my view, however, a simple
reading of the decision discloses that the IRB clearly considered and analyzed
the applicant’s claim on the basis of his alleged membership in the particular
social class of his family. Moreover, a large number of cases decided by
this Court have established that the IRB is not bound by the result in another
claim, even if the claim involves a relative, because refugee status is
determined on a case by case basis, and because it is possible that the other
decision was incorrect (see, inter alia, Rahmatizadeh v Minister of
Employment and Immigration, [1994] F.C.J. No. 578 (F.C.T.D.) (QL); Museghe
v. Minister of Citizenship and Immigration, 2001 FCT 1117; Singh v.
Minister of Citizenship and Immigration, 2002 FCT 1013; Matlija v.
Minister of Citizenship and Immigration, 2003 FCT 704; Gjergo v.
Minister of Citizenship and Immigration, 2004 FC 303 and Bromberg v.
Minister of Citizenship and Immigration, 2002 FCT 939). Therefore, in my
view, the IRB did not fail to consider the criterion of membership in the
particular social group of his family.
(My
emphasis)
[30]
In
the present case, although the Board did not refer to Fatma’s PIF, I agree with
the respondent that the Board was not required to do so. The fact that the
Board previously granted refugee protection for Fatma does not establish a
precedent for those with similar claims. Moreover, Fatma’s PIF described only
one common incident and did not describe the key political activities or
beliefs that the applicants allege.
Conclusion
[31]
In
the present case, the Board found that the applicants lacked credibility and
justified these findings extensively. The information in Fatma’s PIF could not
have overcome the extensive credibility findings and did not address the
primary basis of the applicants’ claim of persecution due to their own political
involvement, particularly their involvement in the Pir Sultan Abdal Association.
The Board found that the evidence of the applicants’ involvement in and
knowledge of the organization was not credible, nor were their other claims of
political activism.
[32]
As
noted above, credibility findings of the Board are to be given significant
deference. In the present case, the Board noted many credibility issues and its
decision clearly states these findings and provides reasons. The Board did not
err in failing to consider that the psychologist’s reports provided a medical
explanation for the applicants’ inconsistent testimony. From the medical
reports, their behaviour at the hearing, and from the Board’s own experience,
the Board was aware of the stress on the applicants and took this into account.
However, this was not sufficient to address the significant credibility
findings and the absence of sufficient corroborative evidence.
[33]
With
respect to the applicants’ claims of religious persecution due to their Alevi
faith, the Board accepted that they were Alevi despite their limited knowledge,
but reasonably found on the basis of the objective country condition documents
that they would not face persecution for their religious beliefs.
[34]
The
application for judicial review is dismissed. No question was proposed for
certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed;
2. No
question is certified
"Catherine
M. Kane"
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