Date: 20150806
Docket: IMM-5828-14
Citation:
2015 FC 948
Ottawa, Ontario, August 6, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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MURAT KUSMEZ,
CANAN KUSMEZ,
IPEK NIL KUSMEZ AND
INCI DENIZ KUSMEZ
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
Murat Kusmez, his wife Canan Kusmez, and their
two children Ipek Nil Kusmez and Inci Deniz Kusmez [collectively the
Applicants] have brought an application for judicial review pursuant to s 72 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA].
The Applicants challenge a decision of the Refugee Protection Division of the
Immigration and Refugee Board [the Board] which determined that the Applicants are
neither Convention refugees pursuant to s 96 of the IRPA, nor persons in need
of protection pursuant to s 97(1).
[2]
The Board rejected the Applicants’ claims
primarily because it found that Mr. Kusmez was not a trustworthy witness. This
adverse finding of credibility permeated all aspects of the Applicants’ claims.
For the reasons that follow, I have concluded that the Board’s decision was
reasonable and the application for judicial review is therefore dismissed.
II.
Background
[3]
The Applicants are citizens of Turkey. They are of
Kurdish ethnicity and members of the Alevi faith.
[4]
Mr. Kusmez’s Basis of Claim [BOC] narrative
included the following assertions:
•
In 2008, Mr. Kusmez was detained while attending
Kurdish cultural celebrations with friends who were members of the Peace and
Democracy Party [BDP]. On his way home he was detained for 24 hours and
interrogated about his association with other members of the BDP.
•
In May, 2008, Mr. Kusmez was protesting against
police violence with friends from the Republican People’s Party [CHP] when he
was detained and injured by the police.
•
On July 2, 2011, Mr. Kusmez attended a memorial
ceremony which was hosted by the CHP. When he left he was detained and
threatened by the police.
•
In April, 2013, Mr. Kusmez was detained and
tortured after attending Newroz celebrations with friends from the CHP. Mr.
Kusmez was questioned about his connection to the BDP and asked to act as a
police informant.
•
On June 25, 2013, six police officers came to
the home of Mr. Kusmez’s parents. Mr. Kusmez was not there at the time but he was
detained later the same day when he refused to give the police information
about the BDP. Mr. Kusmez was tortured during his detention and was coerced
into assisting the police.
•
In July, 2013, Mr. Kusmez was assaulted by three
individuals as he left an Alevi place of worship.
•
In September, 2013, Mr. Kusmez found a letter in
his parents’ mailbox demanding that he give up his political activities or he
would regret it in the future.
[5]
Mr. Kusmez decided that it was necessary to
leave Turkey, and he fled the country with his family in December, 2013. The Applicants
travelled to Canada via the United States and made a claim for refugee
protection upon arrival. Their claim was based on an alleged fear of
persecution at the hands of the police, the government, and nationalist
extremists due to the Applicants’ ethnicity, religion and political activity.
[6]
The Board heard the Applicants’ claims on
February 21, April 1, and May 30, 2014. The Board rejected their claims with
reasons dated July 11, 2014.
III.
The Board’s Decision
[7]
The Board identified several discrepancies and
inconsistencies in the statements and submissions offered in support of the Applicants’
claims. The Board ultimately rejected the claims because it found that Mr.
Kusmez was “not a credible or trustworthy witness with
respect to the central allegations of his case.”
[8]
The Board noted that Mr. Kusmez had testified
that he was a member of the CHP, but he had not included this in his BOC
narrative. The Board rejected Mr. Kusmez’s explanation that the information contained
in his port of entry [POE] forms was neither confirmed nor translated back to
him, that his uncle had rushed when filling them out, and that Mr. Kusmez was
tired and suffering from psychological stress when the forms were completed.
The Board found on a balance of probabilities that Mr. Kusmez was not a member
of the CHP, and that his involvement with the CHP did not occur as alleged. The
Board therefore drew a negative inference regarding Mr. Kusmez’s credibility.
[9]
The Board found that the testimony of Mr. Kusmez
and his wife regarding an incident that occurred on June 25, 2013, when the
police allegedly visited the home of his parents, was not credible due to
inconsistencies in their respective versions of the events. This was said to
have resulted from a miscommunication between Mr. Kusmez and his wife, an explanation
that the Board found to be “highly unlikely.”
[10]
The Board drew a further negative inference from
the fact that Mr. Kusmez had indicated in his POE forms that he had not been
detained in Turkey, but he then said during an interview with Canadian
immigration officials that he had been detained twice. This number changed
again in Mr. Kusmez’s BOC narrative and his testimony before the Board, where he
indicated that he had been detained five times. The Board found Mr. Kusmez’s
explanation for these discrepancies to be unreasonable.
[11]
The Board also rejected Mr. Kusmez’s claim that
he was asked by the police to act as an informant within the BDP party. The
Board found this to be implausible, given that he did not speak Kurdish and was
neither a supporter nor a member of the BDP party.
[12]
The Board determined that the Applicants had put
forward insufficient credible and trustworthy evidence to support a positive
determination under ss 96 or 97 of the IRPA. The Board found that the Applicants
had not satisfied the burden of establishing a serious possibility of persecution
on a Convention ground or that they would personally face a danger of torture
or a risk to life, or a risk of cruel and unusual treatment or punishment if they
were returned to Turkey.
IV.
Issues
[13]
The following issues are raised by this
application for judicial review:
A.
Whether the Board failed to consider the risk of
persecution based on the Applicants’ ethnicity or religious faith;
B.
Whether the Board placed undue reliance on Mr.
Kusmez’s POE statements;
C.
Whether the Board failed to consider
corroborative evidence in assessing the Applicants’ credibility; and
D.
Whether the Board’s implausibility findings were
unreasonable.
V.
Analysis
[14]
Whether the Board failed to consider all of the
grounds on which a refugee claimant sought asylum is a question of procedural
fairness and is to be assessed by this Court against the standard of
correctness (Varga v Canada (Minister of Citizenship and Immigration),
2013 FC 494 at para 6).
[15]
The Board’s findings of credibility are subject
to review by this Court against the standard of reasonableness (Rahal v
Canada (Minister of Citizenship and Immigration), 2012 FC 319 at para 22).
[16]
A reasonable decision is one that is justified,
transparent and intelligible, and that falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47).
A.
Whether the Board failed to consider the risk of
persecution based on the Applicants’ ethnicity or religious faith
[17]
The Board commits a reviewable error by failing
to consider all of the grounds upon which a refugee claim is based, but this
does not mean that each ground must be considered in isolation. On the
contrary, this Court is more likely to intervene if the Board fails to consider
the interplay between multiple grounds of persecution advanced by an applicant
(Mabuya v Canada (Minister of Citizenship and Immigration), 2013
FC 372 at para 10).
[18]
In this case, the nature of the Applicants’
claims required the Board to consider their religious, political and ethnic
background together. Mr. Kusmez’s own statements demonstrate the inter-dependence
of his religion, politics and ethnicity in the formulation of his claim for
protection. For example, in his BOC narrative Mr. Kusmez said the following:
[34] One evening in the middle of July 2013, after I was done
with cleaning and left the Cemevi, I was attacked by three religious and
fascist-looking people. They said “separatists like you cannot live
in this neighborhood.” They beat me and asked “where do you find the guts to
join demonstrations against the government?” […]
[35] Being afraid for my own and family’s life and safety,
having confirmed that I had no legal recourse, having relocated without
success, being unwilling and unable to hide and not express my identity
forever, and being afraid of myself and my family being in even more danger
once the authorities realized I lied about wanting to help them; I
realized that I had to leave the country with my family, in order to stay safe.
Leftist Alevis being killed on a regular basis increased my fear [...]
[Emphasis added.]
[19]
It is clear from the evidence presented by the
Applicants that their alleged fear of persecution and corresponding need for
protection was based on their religious beliefs, political activities and
ethnicity combined. These were not separate considerations to be reviewed by
the Board in silos (Djubok v Canada (Minister of Citizenship and
Immigration), 2014 FC 497 at para 18). I am satisfied that the Board was alive
to all three grounds advanced by the Applicants in support of their claims:
[46] […] The panel asked the claimant why
did the police keep asking him questions about BDP members on the detentions
when he was not a supporter or a member of that party. The principal claimant
testified that it was their way to intimidate Alevi and Kurdish people and
also because the principal claimant had friends who were BDP supporters.
The panel does not find this aspect of the principal claimant’s testimony to be
credible.
[Emphasis added.]
[20]
Furthermore, whether the Board properly
considered all three grounds advanced by the Applicants in support of their claim
is largely moot. Their claims were rejected primarily because the Board found
that Mr. Kusmez was not a trustworthy witness. This adverse finding of
credibility permeated all aspects of the Applicants’ claims, as reflected in
the Board’s decision:
[49] After reviewing the evidence in
its totality, the panel finds that the principal claimant is not a credible or
trustworthy witness with respect to the central allegations of his case. The
panel finds that the principal claimant’s account of problems he faced in
Turkey lacking in credibility. As a result, the panel does not believe his
story in support of his claim. Therefore, I find that I have insufficient
credible and trustworthy evidence before me upon which to reach a positive
determination under s. 96 or s. 97(1) of IRPA.
[21]
The onus is on a refugee claimant to present all
of the evidence and information that may be necessary to establish the claim (Ward
v Canada (Minister of Employment and Immigration), [1993] 2 SCR
689). In this case, the Board’s adverse finding of credibility undermined Mr.
Kusmez’s ability to establish his claim and those of his family. In Canada
(Minister of Citizenship and Immigration) v Sellan, 2008 FCA 381 at
para 3, the Federal Court of Appeal held that where the Board makes a general
finding that the claimant lacks credibility, that determination is sufficient
to dispose of the claim unless there is independent and credible documentary
evidence in the record capable of supporting a positive disposition of the
claim. That is not the case here.
B.
Whether the Board placed undue reliance on the
Applicant’s POE statements
[22]
POE statements are to be treated with caution by
the Board (Cetinkaya v Canada (Minister of Citizenship and
Immigration), 2012 FC 8 at paras 50-51). Nevertheless, inconsistencies
between an applicant’s statements at the POE and those given before the Board may
support an adverse finding of credibility (Arokkiyanathan v Canada (Minister
of Citizenship and Immigration), 2014 FC 289 at para 35). While
minor discrepancies between POE declarations and oral testimony are not
sufficient, the Board may find that a claimant lacks credibility if the
omission concerns an element that is central to the claim (Jamil v Canada
(Minister of Citizenship and Immigration), 2006 FC 792 at para 25).
In this case, Mr. Kusmez’s allegations of his detentions and his political
involvement were central to the Applicants’ claims, and it was open to the
Board to make an adverse finding of credibility due to inconsistencies in the
evidence concerning these matters.
[23]
The Applicants say that the Board should have
acceded to their request to summon the immigration officer at the POE so that
he could be questioned about the circumstances in which Mr. Kusmez’s POE
statements were made. As noted by the Respondent, Rule 44 of the Refugee
Protection Division Rules, SOR/2012-256, requires a party to identify a
proposed witness in advance of the hearing. The Applicants did not abide by
this requirement. The denial by the Board of a late request for a witness in
these circumstances does not amount to a breach of natural justice or
procedural fairness (Rrukaj v Canada (Minister of Citizenship &
Immigration), 2004 FC 605 at para 10; see also Igbinosa c Canada
(Ministre de la Sécurité publique et de la Protection civile), 2008 FC 1372
at para 36).
C.
Whether the Board failed to consider
corroborative evidence in assessing the Applicants’ credibility
[24]
The Board is presumed to have considered all of the
evidence that was before it and is not required to refer to each piece of
evidence in its decision (Florea v Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 (FCA) at para 1). Where a particular
piece of evidence is important and directly contradicts an essential element of
a finding, the failure of the Board to address the evidence or to explain why
it was disregarded may lead to an inference that the decision was made without
regard for the evidence before it (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration) (1998), 157 FTR 35 (Fed TD) at para 17).
[25]
Considerable deference is owed by this Court to
the findings of the Board, given its ability to directly observe witnesses’
demeanour, its expertise, and its role as a finder of fact (Aguilar Zacarias
v Canada (Minister of Citizenship and Immigration), 2012 FC 1155 [Zacarias]
at para 9). Provided that the inferences drawn by the tribunal are not clearly unreasonable,
its findings are not open to judicial review (Aguebor v Canada (Minister of
Employment and Immigration), [1993] FCJ No 732 (FCA) at para 4).
[26]
In this case, the corroborative evidence
referred to by Mr. Kusmez does not contradict the essential findings of the
Board. A text message from a friend, a letter from a lawyer who was consulted
by Mr. Kusmez, and a photograph purporting to show a visit by the police to a
residence were all inconclusive and were not inconsistent with the Board’s
adverse findings of credibility, which were in any event based on the totality
of the evidence (Owusu-Ansah v Canada (Minister of Employment and
Immigration), [1989] FCJ No 442 (FCA)).
D.
Whether the Board’s implausibility findings were
unreasonable
[27]
The Board is entitled to consider plausibility,
common sense and rationality in its assessment of a refugee claim (Ye v
Canada (Minister of Citizenship and Immigration), 2014 FC 1221 at para 29).
As noted by Justice Gleason in Zacarias at para 10, “this Court has often cautioned that plausibility
determinations are best limited to situations where events are clearly unlikely
to have occurred in the manner asserted, based on common sense or the evidentiary
record.” Where the Board seeks to impugn the credibility of a refugee
claimant based on an implausibility in the claimant's story, its findings must
be reasonably drawn and must be set out in “clear and
unmistakable terms” (Lubana v Canada (Minister of Citizenship and
Immigration), 2003 FCT 166 (Fed TD) at para 9).
[28]
The Applicants take issue with two
implausibility findings made by the Board. The first concerned an alleged visit
by the police to the home of Mr. Kusmez’s parents when he was absent. The Board
found it implausible that his wife would recall the precise number of officers
who attended, and how many remained outside of the house. More generally, the
Board indicated that it did not find “the principal
claimant and claimant credible in this area of testimony.”
[29]
The Board also found that Mr. Kusmez’s assertion
that the police had asked him to become an informant and provide the names of
members of the Kurdistan Workers’ Party (PKK) who held management positions
within the BDP to be unlikely. The Board’s conclusion was based on the
Applicant’s testimony that he was neither a member nor a supporter of the BDP,
and that he does not speak Kurdish.
[30]
I am satisfied that both of these plausibility
findings were based on common sense, and that the Board’s conclusions were
reasonably drawn and set out in clear and unmistakable terms (Lubana).
They therefore disclose no reviewable error.
VI.
Conclusion
[31]
For the foregoing reasons, the application for
judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application for judicial review is dismissed. No question is certified for
appeal.
"Simon Fothergill"
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