Date: 20030704
Docket: IMM-4840-02
Citation: 2003 FC 826
BETWEEN:
BC, CC, ZBC, FFC and MOC
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
INTRODUCTION
[1] These reasons follow the hearing of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the Applicants not to be Convention refugees within the meaning given to that expression in subsection 2(1) of the Immigration Act. The reasons for the decision under review are dated the 14th of August, 2002.
BACKGROUND
[2] BC ("the principal Applicant") and CC (the "female Applicant") are husband and wife. The other three applicants are children of the principal Applicant and the female Applicant. All are citizens of Turkey. The principal Applicant bases his claim to Convention refugee status on his membership in a particular social group, his family, and a combination of his religious beliefs and his perceived political opinion based upon those beliefs. The female Applicant bases her claim on that of her husband as well as on the basis of her religion. The children derive their claims through those of their parents.
[3] The principal Applicant and his wife are observant Sunni Muslims. The principal Applicant recounts a long history dating back to his childhood of difficulties that members of his family, and later, he himself, encountered with Turkish authorities by reason of their alleged "actions against the unity of the Turkish Secular State", by reason of their religious beliefs and, more particularly, by reason of membership in Nur Jamaat. The principal Applicant achieved a high level of education and taught English at a Turkish university. By reasons of his religious and perceived political views and practices, he lost that employment.
[4] The female Applicant is also well educated. She was a teacher in two (2) high schools. She too lost her employment as a high school teacher by reason of a religious practice that was not permitted in the school setting and which she adamantly refused to abandon.
[5] In mid-December, 2000, and again in early January, 2001, military police attended at the Applicants' home seeking the principal Applicant.
[6] With respect to the second visit by the military police, the female Applicant testified:
When the military police came to the house on second arrival he said, pick up your kids, we are going. So I thought that they came for me, not for Burhan. He later on said if he doesn't report here to the military station we can take you. So I understood that they are here for B and I thought so many things in my mind. So many things passed and I thought about some sisters from demonstration, they were charged. So what have I done I thought, came to my mind. Maybe I have been seen at demonstration, that's why they are here for me.
...
What I fear is that I am under report. Then I was (inaudible) and I was not sure about our future. If B is arrested or killed or imprisoned for how many years, I don't know. Just not certain about your future, what would happen to us. I have fear of the future.
...If he's arrested what will we do. I'm afraid of his being arrested.
...
For myself I'm not so sure about my - - because I wasn't given the chance to be so active, but I can never be sure because in that demonstration every people were videotaped, so maybe I was the one who was targeted because I was an observant Muslim too. So I cannot be sure about myself.
...
When they raid? They [the military police] asked where B was. I said I don't know, he doesn't come to home, I said, and they went into those rooms to look for him and they shouted, they said pick up your kids, we are going, and I said what's wrong, what have I done? Pick up - - yes, they shouted and then said - - then they asked for B, so I understood that they were looking for B and I said if there a problem with him, go and find him, I cannot come with you.
...
...They took some of B's books from the bookcase, two of Rasiliarnor books and then they left and they wanted - - they told me tell B to report to the military police station.
[7] The books taken were books that were then banned in Turkey for allegedly political reasons.
[8] Within a month after the second police raid, the Applicants had obtained passports and arrived in Canada through the United States.
THE DECISION UNDER REVIEW
[9] The CRDD, with some qualifications in relation to the principal Applicant, found the principal Applicant and the female Applicant to be credible witnesses. It found them to be articulate, intelligent and good humoured. In relation to the principal Applicant, it found that he "...exaggerated somewhat in two areas." The first area related to an automobile accident in which a brother of the principal Applicant died and his sisters were injured. The second related to medical reports of an appendectomy, of facial paralysis and of circumstances requiring rest, each of which the principal Applicant related to stress deriving from his religious/political difficulties.
[10] The CRDD contrasted discrimination and discriminatory treatment with persecution and persecutory treatment. It noted what it described as the "delayed departure" of the Applicants from Turkey, particularly in the light of the long history of discrimination or persecution against the principal Applicant and the more recent experiences of the female Applicant.
[11] The CRDD went on to determine the Applicants' claims not to be well-founded. In reaching this conclusion, it noted that significant numbers of family members of both the principal Applicant and the female Applicant remain in Turkey. It noted that it had "no credible evidence before it" to support a claim that the principal Applicant has outstanding charges against him and continues to be sought after in relation to any charge. It minimized the difficulties that the principal Applicant encountered in obtaining passports. It concluded that the evidence before it did not support the conclusion that the principal Applicant could not find suitable employment. With respect to the female Applicant, the CRDD concluded in the following summary fashion:
...The panel finds the treatment experienced by the female claimant to be discriminatory, but not to amount to persecution.
[12] Finally, with respect to the children, the CRDD concluded:
No particular evidence was led as to why the minor claimants fear returning to Turkey other than the female claimant's general worry for their well-being.
THE ISSUES
[13] While counsel for the Applicants raised a significant range of issues before the Court, in these reasons I will focus on only three (3) matters which I regard as determinative. Those three (3) matters are the following: first, the military police raids on the Applicants' home in December 2000 and January 2001 and the proximity of the Applicants' departure from Turkey to Canada to those raids; secondly, alleged ignoring of medical evidence that was case specific to the principal Applicant; and thirdly, the impact of the female Applicant's commitment to a religious practice on her ability to obtain suitable employment if now required to return to Turkey.
ANALYSIS
[14] A full review of the transcript of the hearing before the CRDD demonstrates a clear identification by the principal Applicant and the female Applicant of the police raids on their home in December, 2000 and January 2001 as the triggering events that led to their decision to flee Turkey. Two (2) aspects of these raids were clearly very important. For the first time, the second raid disclosed a significant risk to the female Applicant and to the children. Further, the second raid led to the seizure of banned books from the principal Applicant's library which would demonstrate to police authorities that the principal Applicant remained committed to his religious beliefs and his perceived political ideology. Shortly put, counsel for the Applicant urged that the CRDD failed to give these events and the implications flowing from them sufficient weight in the determination of whether or not the Applicants would now face a significant risk of persecution if retuned to Turkey. Counsel urged that this was demonstrated in particular by the CRDD's concern that the Applicants had inordinately delayed in their departure from Turkey, thus demonstrating a lack of subjective fear of persecution. This concern on the part of the CRDD would appear to have been based on its perception of the principal Applicant's job loss as the triggering event, rather the police raids.
[15] I am satisfied that interpretation of the CRDD's reasons, read as a whole, supports the submissions of counsel for the Applicant. I determine that the CRDD erred in a reviewable manner in misinterpreting the critical importance to the Applicants of the late December, 2000, and early January, 2001, police raids as the key bases underlying their fear of persecution if required to return to Turkey. The Applicants' departure from Turkey followed shortly after the raids.
[16] The CRDD had before it a psychiatric report with respect to the principal Applicant dated the 15th of February, 2002. The report recites the fact that the principal Applicant was referred for assessment by Dr. Tatjana Muhamedagic. The report reads in part:
...Prior to beginning the interview I read through a statement which he [the principal Applicant] had prepared. The statement described his experiences of religious persecution in his native country of Turkey, through gradually escalating events of harassment terminating in serious charges which would likely lead to a long term of imprisonment or even death. According to the patient, these charges related to harmless, political or religious activities on his part.
Mr. C described various psychological symptoms. He told me that he is angry for no reason. He shouts at his children, even if they are not misbehaving. This may occur two or three times weekly. He tries to deal with this by taking a walk or smoking too many cigarettes. He feels discouragement due to his experiences in Turkey; it feels as though there is a barrier in front of him, maybe once or twice monthly he cries. He does not like to do this in front of people, so he isolates himself from the rest of the family for this purpose. At other times, more frequently, he feels like crying but holds back. After this, he is quite likely to get a severe headache which he thinks might be a migraine. The pain involves the whole head and is preceded by seeing a kind of snowflake pattern. When he has these headaches, he is very much bothered by bright light, or noise. His energy level is reduced. He feels only half his usual effectiveness. He enjoys trying to help other people and is quite active in the Turkish immigrant community. He also enjoys teaching. His appetite is diminished, yet his weight has gone up despite this. ... . He describes a recurrent nightmare. Two officers take him to a plane and he is returned to Ankara.
Most of these symptoms have been present since around 1995 to 1996, they have gradually been worsening. ...
The resulting diagnosis is, in part, post-traumatic stress disorder in partial remission and stress from religious and political persecution in country of origin.
[17] The CRDD also had before it a letter from Tatjana Muhamedagic, apparently the person who referred the principal Applicant to the psychiatrist. That letter reads in part as follows:
Mr. C comes from Turkey, and has survived extreme traumatic experiences as recorded in our file.
Mr. B [C], upon his arrival to Canada one year ago, came to me to look for help to overcome his effects of trauma. At that time he told me about his experiences in Turkey, how he was persecuted and threatened to the point of having his own life and lives of his wife and children at risk.
[18] In Cepeda-Gutierrez et al v. Canada (Minister of Citizenship and Immigration), Justice Evans, then of the Trial Division of this Court, wrote at paragraph [17]:
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), ... . 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. [citation omitted]
[19] Clearly, the evidence here cited appears squarely to contradict the CRDD's finding of fact or of mixed fact and law regarding whether the principal Applicant has in the past suffered persecution. While the CRDD might very well have summarily disposed of the evidence in question, given that it is based on self-reporting by the principal Applicant and might thus appear to be self serving, that is not a sufficient justification for apparently ignoring case-specific, relevant evidence.
[20] I am satisfied that, once again, the CRDD committed a reviewable error in not referring to, and dealing with, the evidence in question.
[21] Finally, with great respect, I conclude that the CRDD inappropriately minimized the importance of the evidence before it regarding the female Applicant's unwillingness to abandon a particular religious practice in order to secure re-employment as a high school teacher, when that evidence is combined with evidence, also before the CRDD, that in the absence of abandonment of the particular religious practice, the female Applicant would be unable to obtain re-employment as a high school teacher. While appropriate consideration of such evidence might not have necessarily led to a conclusion of persecution, it was an important consideration. In Fosu v. Ministre de l'Emploi et de l'Immigration, Justice Denault wrote at paragraph [5]:
...it seems that persecution of the practice of religion can take various forms, such as ..., the implementation of serious discriminatory policies against persons on account of the practice of their religion.
[22] It is entirely possible that, on the facts of this matter, appropriately analyzed, the denial to the female Applicant of the opportunity for her to re-assume a position in high school teaching might amount to "... serious discriminatory policies..." resulting in past persecution and potential future persecution on the convention ground of religion if the female Applicant were required to return to Turkey. In the absence of an appropriate analysis in this regard, once again I am satisfied that the CRDD erred in arriving at the decision here under review.
CONCLUSION
[23] In the result, this application for judicial review will be allowed, the decision under review will be set aside, and the matter will be referred back for rehearing and redetermination by a differently constituted panel.
CERTIFICATION OF A QUESTION
[24] These reasons will be distributed without an Order being issued. Counsel for the Respondent will have seven (7) days from the date of these reasons within which to advise the Court and counsel for the Applicant of any question that the Respondent would propose for certification. Thereafter, counsel for the Applicant will have five (5) days to provide the Court and counsel for the Respondent with any reply submissions. Thereafter, an Order in accordance with these reasons will follow.
FREDERICK E. GIBSON
____________________________
Judge
Ottawa, Ontario
July 4, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4840-02
STYLE OF CAUSE: BC et al v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: Wednesday June 18, 2003
REASONS FOR ORDER: Gibson J.
DATED: July 4, 2003
APPEARANCES:
Mr. Omar Shabbir Khan FOR APPLICANT
Ms. Rhonda Marquis FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Omar Shabbir Kahn
Barrister and Solicitor
948 Main Street East
Hamilton, Ontario L8M 1M9 FOR APPLICANT
Ms. Rhonda Marquis
Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario M5X 1K6 FOR RESPONDENT
Tribunal Record, pages 564 to 566.
Tribunal Record, pages 122 and 121.
Applicants' Application Record, Book Two, Tab 7.
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