Date: 20021025
Docket: IMM-5290-01
Neutral citation: 2002 FCT 1114
BETWEEN:
OSMAN KURTKAPAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] Mr. Osman Kurtkapan (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board"). In its decision, dated October 30, 2001, the Board determined that the Applicant is not a Convention refugee.
FACTS
[2] The Applicant is a citizen of Turkey. He alleges a well founded fear of persecution in Turkey due to membership in a particular social group, based on his sexual orientation as a gay man.
[3] The Applicant disclosed his sexual orientation as a homosexual to his family when he was 16 years old. The news was not well received and within a few years his parents arranged a marriage for him. He entered that marriage in 1992, in order to please his parents. The marriage did not last and within a few months he obtained a divorce.
[4] In 1996, the Applicant went to England, holding a valid visitor's visa for that country. While in England, he advanced a claim for Convention refugee status on the basis of his political opinion. His claim was denied and he was deported back to Turkey in August 1997. He returned to the same area where he had been living and resumed his life in Turkey.
[5] In November 1997, he went to the Netherlands and advanced a claim for Convention refugee status. His claim was not considered in light of the prior negative determination of his claim in England and he was deported back to Turkey.
[6] Some time between 1995 and 1999 the Applicant met a woman, Ms. Hood. He entered into some kind of arrangement with Ms. Hood and paid her the sum of $3,000.00 as consideration for marriage with him. The purported purpose of this marriage was to facilitate his entry into England. Apparently, the Applicant and Ms. Hood were married sometime in 1999 but she returned to England and did not complete her end of the agreement to return to Istanbul for any necessary interviews.
[7] Repression of homosexuals in Turkey continued and in September 1999, the Applicant was taken to the police station, together with some gay friends. They were photographed, finger printed and given numbers. The police imposed a requirement of weekly reporting to the police station. The Applicant claimed that he was insulted and harassed and required to pay money each time he attended at the police station.
[8] In February 2000, the Applicant was able to travel to the United States of America, although he had some difficulty in leaving Turkey. He remained in the United States for four months. He did not make a Convention refugee claim in that country because he felt he would have a better opportunity for making such a claim in Canada. In June 2000, he entered Canada and advanced his refugee claim.
[9] The Board accepted the Applicant's evidence that he is a homosexual. It also accepted his evidence concerning the treatment of homosexuals in that country and found that it generally conformed with the documentary evidence about that social phenomenon. However, it concluded that the Applicant lacked a subjective basis for his Convention refugee claim. In its decision, the Board found that the Applicant was homosexual but it rejected his claim on the grounds that he lacked a subjective fear of persecution in Turkey. It found that he had "failed to provide sufficient credible evidence with respect to some of the material elements of his claim."
[10] The Board expressed concern with the fact that the Applicant had been married twice, notwithstanding his assertion that he is homosexual. It noted that his claim for asylum in the United Kingdom was not based on his sexual orientation, despite the assertion that sexual orientation was his reason for leaving Turkey in the first place. It noted that the fact that the Applicant returned to Turkey after denial of refugee status in the United Kingdom and the Netherlands suggested that he lacked a fear of returning to Turkey.
[11] The Board considered that the Applicant's attempt to marry Ms. Hood indicated a desire to leave Turkey but did not suggest a sense of desperation to leave because of a fear of persecution. The Board questioned the timing of his final departure from Turkey and found that there was a delay in leaving, once he had obtained his exit papers. The Board questioned this delay, saying that he was thereby exposing himself to a further period of harassment.
[12] The Board characterized the travel arrangements undertaken by the Applicant as "convoluted" and found no reasonable explanation was given for the necessity of "such covert activity".
[13] Finally, the Board questioned why the Applicant had not made a claim in the United States, despite having lived there for four months.
APPLICANT'S SUBMISSIONS
[14] The Applicant argues that the Board committed a number of errors in its decision. In the first place, the factual findings reached by the Board are perverse and the inferences drawn from the facts so found are clearly irrational.
[15] The Applicant also argued that the findings were made without regard to the totality of the evidence. The Board did not reject the credibility of the Applicant, since it does not say that it disbelieves the whole or specific portions of his evidence. It did not refer to any contradictory evidence but said that the Applicant had failed to provide "sufficient credible evidence" concerning "some of the material elements of his claim".
[16] The Applicant refers to the test established in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. That test requires a claimant to establish a well founded fear of persecution, demonstrating both a subjective and objective basis to that fear.
[17] The Applicant relies on Yusuf v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 629 (C.A.) where the Court held that rejecting a claim due to the absence of subjective fear, while acknowledging an objective basis for the fear, was found to be "doubtful". He also relies on Pan v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1116 (QL) (C.A.) where the Court upheld a decision of the Board, denying Convention refugee status to a claimant who was determined to lack a subjective fear, where the Board had made a reasoned assessment of the objective elements of the alleged fear of persecution and determined that it was not well founded in that additional respect.
[18] The Applicant also relies on Amaniantong v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 161 (F.C.A.) where the majority refused to interfere with a decision where the Board found credible evidence of objective persecution but also found the claimant not credible regarding the subjective branch of the test. According to the Applicant, the key difference between Pan, supra and Amaniantong, supra, and the present case is that in those cases the Board specifically addressed and provided reasons for their assessment of the objective aspect of the claimant's fear of persecution, whereas here the Board failed to address the objective aspect of his fear of persecution in its decision.
[19] The Applicant submits that since the Board accepted that he was a homosexual and that his evidence generally conformed with the documentary evidence regarding the mistreatment of homosexuals in Turkey but then failed to assess the objective element of his fear of persecution, the Board erred in law.
[20] The Applicant also argues that the Board erred in its findings concerning his subjective fear of persecution. In this regard, he submits that the Board drew unreasonable, perverse and irrational findings of fact upon which it then relied to reach a conclusion about the subjective aspect of his fear. By way of example, the Applicant points to the Board's finding that since he was deported back to Turkey after rejection of his refugee claims in the United Kingdom and the Netherlands, this meant that he did not fear returning to Turkey. The Applicant says that this was clearly an erroneous finding of fact because it ignores the reality that his return to Turkey was involuntary and as the result of the operation of law in foreign countries. His return to Turkey in these circumstances cannot support a finding that he does not have a fear of returning to his native country.
RESPONDENT'S SUBMISSIONS
[21] The Respondent, on the other hand, argues that the Board was entitled to make the findings that it did and that it provided sufficient reasons for its conclusions. The Respondent says that the Board's decision is well founded in fact and in law, and characterizes the Applicant's arguments as amounting to a request for this Court to re-weigh the evidence and to assess credibility.
[22] The Respondent submits that it is proper and reasonable for the Board to refuse a refugee claim where the claimant's credibility is in doubt, due to contradictions and inconsistencies in his story, or on the basis that the evidence is simply implausible. In this regard, the Respondent relies on Alizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11 (QL) (C.A.) and Sheikh v. Canada (Minister of Employment and Immigration), [1990] 71 D.L.R. (4th) 604 (F.C.A.).
[23] The Respondent argues that the Board's rejection of the Applicant's claim was not patently unreasonable since the Applicant did not demonstrate a subjective fear of persecution. According to the Respondent, the Board considered all the evidence and determined that the Applicant's actions, in total, did not reflect the actions of a person who held a subjective fear of persecution.
[24] The Respondent, in addition to Ward, supra, also relies on Maqdassy v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 238 (QL) (T.D.) to support the argument that a claimant must establish a subjective element to persecution in order to obtain a positive decision.
[25] As well, the Respondent argues that the applicable standard of review in this case is patent unreasonableness. The Respondent here relies on Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraphs 33, 35, 37, 38 and 47. The Respondent argues that the recent Supreme Court of Canada decision of Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 1 (S.C.C.), provides guidance in determining whether a decision is patently unreasonable. The factors to be considered are whether it was made arbitrarily or in bad faith, cannot be supported by the evidence or if the decision maker failed to consider a relevant factor in reaching a decision; see Suresh, supra at paragraph 29.
[26] The Respondent also argues that the Board is in the best position to determine the plausibility of testimony; see Aguebor v. Canada (Minister of Citizenship and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[27] Finally, the Respondent argues that for an alleged error in a finding of fact to be reviewable, that finding of fact must be truly erroneous, made capriciously or without regard to the evidence and the decision must be based on the erroneous finding. In this case, none of these conditions have been met. The Respondent relies on Rohm and Hass Canada Ltd. v. Canada (Anti-Dumping Tribunal), (1978), 91 D.L.R. (3d) 212 (F.C.A.) and Bhuiyan et al. v. Canada (Minister of Employment and Immigration) (1993), 66 F.T.R. 310 (T.D.) in support of this argument.
ANALYSIS
[28] This application for judicial review was brought pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c.F-7, as amended. Section 18.1(3) and (4) are relevant and provide as follows:
| (3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
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(3) Sur présentation d'une demande de contrôle judiciaire, la Section de première instance peut_:
a) ordonner à l'office fédéral en cause d'accomplir tout acte qu'il a illégalement omis ou refusé d'accomplir ou don't il a retardé l'exécution de manière déraisonnable;
b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu'elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l'office fédéral.
(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments don't il dispose;
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
f) a agi de toute autre façon contraire à la loi.
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[29] The Applicant sought recognition as a Convention refugee when he came to Canada in 2000. In Ward, supra, the Supreme Court of Canada set out the test to be met by a person seeking status as a Convention refugee. The Court held that the definition of "Convention Refugee" necessarily includes two elements, that is, a subjective fear of persecution and an objective basis for that fear.
[30] In the present case, the Board concluded that the Applicant lacked a subjective basis for a fear of persecution in Turkey. One of the reasons for the Board's finding in this regard was the conclusion that because the Applicant had returned to Turkey from both the United Kingdom and the Netherlands, he did not fear living in his native land.
[31] In my opinion, the Board's conclusion in this regard is perverse, capricious, and unreasonable because it wholly ignores the fact that the Applicant's return to Turkey from the United Kingdom and Holland was involuntary. The Applicant was deported from these countries, as a consequence of the failure of his initial claim for Convention refugee status in the United Kingdom.
[32] The fact that the Applicant returned to Turkey, in the consequence of the operation of the laws of foreign countries, cannot reasonably support the inference that the Applicant freely and willingly returned to Turkey and without fear for his safety in that land.
[33] It is not necessary to comment upon the other arguments advanced by the Applicant concerning other alleged unreasonable findings of fact made by the Board. In my opinion, this unreasonable finding of fact is sufficient to cast doubt over the manner in which the Board considered the Applicant's claim for Convention refugee status. This finding of fact undermines the Board's conclusions respecting the Applicant's subjective fear of persecution and this is a necessary part of the Board's job, according to the decision of the Supreme Court of Canada in Ward, supra.
[34] Secondly, the Board in this case failed to assess the credibility of the Applicant and his story. It made no negative finding about his credibility. The absence of such finding also undermines the Board's ultimate conclusion respecting the Applicant's claim for Convention refugee status.
[35] Finally, the Board erred in failing to consider whether the Applicant had demonstrated an objective basis for his fear of persecution in Turkey. In my opinion, the failure to consider an objective basis for the Applicant's fear of persecution in Turkey amounts to an error in law.
[36] In these circumstances, the application for judicial review is allowed and the matter is remitted to a differently constituted Board for determination in accordance with the law.
[37] Although counsel for the Applicant submitted questions for certification, in my opinion this application does not give rise to a serious question of general importance. No question will be certified.
ORDER
The application for judicial review is allowed and the matter is remitted to a differently constituted Board for redetermination in accordance with the law.
"E. Heneghan"
J.F.C.C.
OTTAWA, ONTARIO
October 25, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5290-01
STYLE OF CAUSE: Osman Kurtkapan v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 9, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE HENEGHAN
DATED: October 25, 2002
APPEARANCES:
Mr. Micheal CraneFOR THE APPLICANT
Ms. Pamela LarmondinFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Micheal CraneFOR THE APPLICANT
Toronto, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada
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