Docket: IMM-2003-16
Citation:
2017 FC 329
Toronto, Ontario, March 29, 2017
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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MUGE KOCACINAR
MEHMET
KOCACINAR
OLCAY KOCACINAR
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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
[1]
Mr. Mehmet Kocacinar (the “Principal
Applicant”), his wife Ms. Olcay Kocacinar (the “Female Applicant”) and his
sister Ms. Muge Kocacinar (the “Minor Applicant”) (collectively “the
Applicants”), seek judicial review of a decision, dated April 13, 2016, of the
Immigration and Refugee Board, Refugee Protection Division (the “Board”)
dismissing their claims to be convention refugees or persons in need of
protection, within the meaning of section 96 and subsection 97(1), respectively,
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”).
[2]
The Applicants are citizens of Turkey and Arab
Alevis. The Principal Applicant and the Female Applicant sought protection on
the grounds that they are at risk due to their political activities. The Minor
Applicant claims to have been harassed by a man seeking to force her to marry
him and the police refused to provide assistance. The Principal Applicant also
sought protection from compulsory military service.
[3]
The Board determined that the Principal
Applicant failed to provide credible evidence that he was a political activist
and was targeted by Turkish authorities. It based its negative credibility finding
upon the Principal Applicant’s inability to recall the results of the election
that occurred immediately prior to his departure. With respect to the issue of
military service, the Board found that the Principal Applicant intended to pay
a fee to avoid service and accordingly, he was not at risk.
[4]
The Board rejected the claim of the Female
Applicant on the grounds that she was not a political activist and was not in
danger from the Turkish authorities. The Female Applicant could not recall if
an election occurred in 2011, at the time the Principal Applicant claimed to be
a delegate for the party. Further, she provided inconsistent information about
the length of time that she was politically active. The Board based its
negative credibility findings on these deficiencies.
[5]
The Board determined that the Minor Applicant’s
evidence did not agree with the country condition documents and was internally
inconsistent. Specifically, it found that her claim that the police would not
assist an Arab Alevi to avoid a kidnapping and forced underage marriage was not
reflected in the country documents.
[6]
The Board found that the Minor Applicant’s claim,
of being afraid to leave her house, was inconsistent with her testimony that
she continued to attend school during the period that she was hiding from her
alleged attacker. It noted that she also gave differing accounts of her
interactions with police, including inconsistencies in the number of times that
she contacted the police.
[7]
The Applicants now argue that the Board breached
procedural fairness in its treatment of the evidence corroborating the political
activity of the Principal and Female Applicants. The Principal Applicant submits
that the Board also erred in not determining his claim for protection on the
basis of military service.
[8]
The Principal Applicant also submits that the
Board erred in its treatment of evidence relating to his psychological health.
The Board gave little weight to the psychological report which said that the Principal
Applicant and Female Applicant suffered from post-traumatic stress (“PTSD”)
because it found the underlying claims of traumatic events not to be credible.
[9]
The Principal Applicant argues that he
experienced difficulties presenting evidence at the hearing due to his PTSD. He
submits that the Board relied on these difficulties to find that he was not
credible. He argues that the Board erred by using the negative credibility
findings to dismiss the report.
[10]
The Principal Applicant submits that the
psychological report was submitted to provide the Board with an understanding
of the difficulties that he might experience at the hearing. He argues that it
is unreasonable to dismiss the report on the basis that he was not credible
because he exhibited the difficulties described in the report.
[11]
The Principal Applicant further argues that it
was unreasonable for the Board to give more weight to the first sitting than
the second sitting, since he experienced difficulties caused by his PTSD at the
initial sitting. He submits that the Board should have considered his “relative mental condition” at the two hearings and
weighed the evidence accordingly.
[12]
The Minor Applicant submits that the Board erred
in making a negative credibility finding that is unintelligible and unsupported
by the evidence. She argues that the documentary evidence supports her
testimony that the police do not protect Alevis. She submits that this directly
opposes the Board’s finding that there is no evidence that the authorities
refuse to protect Alevis.
[13]
The Minister of Citizenship and Immigration (the
“Respondent”) submits that the Board considered the documentary evidence but
was not persuaded that the Applicants’ evidence was credible.
[14]
The Respondent argues that the Board was
entitled to make its own credibility assessment of the evidence of the Principal
Applicant and was not required to defer to the opinion of the psychologist, as
expressed in the report of the psychologist.
[15]
Further, the Respondent submits that the Board
was entitled to weigh the corroborating evidence in light of its overall
findings about the credibility of the Applicants’ evidence. He argues that the
Board was entitled to make plausibility findings on the basis of common sense
and rationality; such negative findings did not require contradictory evidence.
[16]
The first matter to be addressed is the
applicable standard of review. Issues of procedural fairness are reviewable on
the standard of correctness; see the decision in Mission Institution v.
Khela, [2014] S.C.R. 502 at paragraph 79.
[17]
Credibility findings and the overall merits of
the decision are reviewable on the standard of reasonableness; see the
decisions in Aguebor v. Minister of Employment & Immigration (1993),
160 N.R. 315 (Fed. C.A.) at paragraph 4 and Kayumba v. Canada (Minister of
Citizenship & Immigration), 2010 FC 138 at paragraphs 12-13.
[18]
As discussed in the decision Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190 at paragraph 47, the reasonableness standard
requires that the decision is intelligible, transparent, justifiable, and falls
within a range of acceptable outcomes that are defensible in respect of the
facts and the law.
[19]
I am not satisfied that the Board reasonably
evaluated the credibility of the Principal Applicant and the Female Applicant.
I see merit in the arguments of these parties about the manner in which the
Board treated the psychological report.
[20]
In my opinion, the Board’s findings about the
credibility of the Principal Applicant and the Female Applicant do not meet the
reasonableness standard set out above.
[21]
I also see merit in the submissions of the Minor
Applicant about the way the Board treated the documentary evidence about the
availability of police protection for the minority Alevi population. The
Board’s negative credibility findings against the Minor Applicant, on the basis
of its consideration of the documentary evidence, are not reasonable.
[22]
The claims of all the Applicants were joined
pursuant to Rule 55 of the Refugee Protection Division Rules, SOR/2012-256
(the “Rules”). According to the decision in Ramnauth et al. v. Canada
(Minister of Citizenship and Immigration) (2004), 247 F.T.R. 239 (F.C.), joined
claims must still be assessed on an individual basis.
[23]
I have considered the basis of each Applicant’s
claim for protection. I am satisfied that the Board’s decision about each
Applicant fails to meet the standard of reasonableness. Accordingly, this application
for judicial review is allowed, the decision of the Board is set aside and the
matter is remitted to a differently constituted panel of the Board for
redetermination. There is no question for certification arising.
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