Date: 20040810
Docket: IMM-5963-03
Citation: 2004 FC 1100
Toronto, Ontario, August 10th, 2004
Present: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
ALI ABBAS ULUSOY, FATMA ULUSOY, EGEMEN ULUSOY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are Alevi Turks who sought refugee protection in Canada based on their Alevi identity, the adult applicants' leftist views, and their perceived association with illegal leftist organizations. The Refugee Protection Division (RPD) of the Immigration and Refugee Board dismissed their claims.
[2] The board accepted that the family is Alevi but found that Alevis are not generally subject to persecution in Turkey. It determined that the female applicant (a university graduate employed as a teacher) had not established involvement with leftist organizations such that it would lead to a well-founded fear of persecution by the Turkish state. Regarding the male applicant (a businessman), the RPD concluded that, although a member of the EMEP (a Stalinist leftist wing of the Revolutionary Communist Party of Turkey), his involvement was not such that it would lead to a well-founded fear of persecution. The board made a number of implausibility and credibility findings.
[3] The applicants take issue with several of the board's findings but the crux of their argument is that the RPD's conclusion that their profile was such that they would not be subject to arrest and detention is fundamentally flawed. Despite the articulate and capable submissions of the respondent's counsel, I will allow the application.
[4] There are some findings in the reasons of the RPD that cannot be said to be patently unreasonable. However, many of the negative credibility findings flow from implausibility findings that cannot be supported on the evidence.
[5] The RPD found that people in the applicants' positions would not be subject to arrest and detention. There was considerable documentary evidence indicating that mass arrests at demonstrations occur and that once arrested, a person's chances of being perceived as a trouble-maker would only increase. The primarily right-leaning security forces are particularly suspicious of Alevis because of their perceived leftward bias. To his credit, counsel for the respondent conceded that activists are susceptible to risk.
[6] The difficulty is that the RPD appears to have completely ignored the above-noted documentary evidence. It is settled law that the more important the document the more willing a court may be to infer, from silence regarding it, a finding of fact is erroneous: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.). The RPD concluded that the occurrences referred to in the ignored documentary evidence did not take place. Then, based on that conclusion, it determined that the applicants' alleged experiences were not credible. In short, the board erroneously concluded that activists were not susceptible to risk. The applicants who claimed to be susceptible were therefore, according to the board, not credible. The inevitable result is that all of the credibility findings that flow from the initial flawed determination are called into question.
[7] I agree with the respondent's counsel that the determination of credibility is the heartland of the board's jurisdiction and that the board is entitled to make findings based on implausibilities, common sense, and rationality. However, the findings must be reasonable: Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (C.A.); Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). A negative credibility finding that flows from an erroneous finding of implausibility cannot be said to be reasonable.
[8] It may be that in the final analysis, as suggested by counsel for the respondent, the applicants will be found to lack credibility. If that is so, it is nevertheless incumbent upon the decision-maker to explain the adverse credibility findings in clear and unmistakable terms: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.).
[9] The application will be allowed and the matter remitted for redetermination before a differently constituted panel of the RPD. Neither counsel suggested a question for certification. No question will be certified.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is remitted for redetermination before a differently constituted panel of the RPD. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5963-03
STYLE OF CAUSE: ALI ABBAS ULUSOY, FATMA ULUSOY, EGEMEN ULUSOY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 10, 2004
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: AUGUST 10, 2004
APPEARANCES BY:
Mr. Michael Romoff FOR THE APPLICANTS
Mr. Jamie Todd FOR THE RESPONDENT
SOLICITORS OF RECORD:
Makepeace Romoff
Barristers & Solicitors
Toronto, Ontario FOR THE APPLICANTS
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20040810
Docket: IMM-5963-03
BETWEEN:
ALI ABBAS ULUSOY, FATMA ULUSOY, EGEMEN ULUSOY
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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