Senlik v. Canada (Minister of Citizenship and Immigration), 2002 FCT 355

Date: 20020328

Docket: IMM-2648-01

Neutral citation: 2002 FCT 355

BETWEEN:

                                                  RESUL SENLIK, FATMA SENLIK,

                                                    UNAL SENLIK, ORHAN SENLIK

                                                                                                                                                      Applicants

                                                                              - and -

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

McKEOWN J.

[1]                 The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated April 30, 2001, wherein the Board determined that the applicants were not Convention Refugees.

[2]                 The issue is whether the Board erred in making four findings related to credibility.

[3]                 The first finding which is in question relates to the Board's handling of the applicant's allegation that he was arrested by police in the vicinity of his welding shop on May 1, 1999. The Board incorrectly stated that the date was March 1, 1999 but this is not a material error. The Board stated the following at page 6 of its reasons with respect to this incident:

In his Personal Information Form (PIF) the principal claimant alleged that his son had been watching the May day parade on the street in front of his welding shop when an altercation broke out between two opposite groups of workers wielding knives and sticks. When the police came to quell the disturbance they arrested the claimant and detained him for four days during which he was beaten. In his oral testimony the claimant indicated that leftist and Turkish ultra nationalists fought rather than two groups of workers. When confronted with this contradiction between his PIF narrative and oral testimony as to the groups involved, the claimant indicated he did not know where the groups came from or who they were as he was working in his shop when the fight broke out. After reviewing all of the evidence the panel is not persuaded on a balance of probabilities that this March 1, 1999 incident, resulting in the claimant's arrest transpired as related by the principal claimant.

It is important to look at what was actually stated by the applicant at the hearing. The Board correctly described what the applicant had said in his PIF, however, it is very difficult to see how the Board reached the conclusion that in his oral testimony he indicated that leftist and Turkish ultra nationalists fought rather than two groups of workers. The applicant was first asked at page 359 of the tribunal record as to who the two groups of workers were that were involved in the fight. His answer was:

In general, May 1^st is the day of all of the workers of Turkey, but in Turkey, there are leftist and rightist groups. The fight broke between these groups.

He was subsequently asked:

So rightist groups marched in the May Day Parade?

MALE CLAIMANT: Yes, everyone, all workers.

Later on the member states:

As I understand the May Day celebration, it's really a leftist parade.

MALE CLAIMANT: No. It's a workers' parade. It's all workers.

The member then states:

Okay. Well, as I understood the situation, ultranationalist groups or something would disrupt the parade.

MALE CLAIMANT: Yeah. When they were singing, the rightists intervened, disrupted, and then the fight broke out.

The member then stated:

But the fighting in the May Day Parade was usually between the marchers and the police or people outside the march. The march got out of control or something or the police tried to stop it.

MALE CLAIMANT: I don't know.    I wasn't exactly, point by point, observing the incident. I was in my shop. I was working. So I don't know where the group came from.

Other than the male claimant's statement of "Yeah", the rest of the testimony clearly indicates that he was talking about a fight between two groups of workers, leftists and rightists. It is certainly questionable for the Board to have come to the summary of the oral testimony that they did. However, a more serious problem is that the Board indicated that the applicant was confronted with a contradiction between his PIF narrative and oral testimony as to the groups involved. As can be seen from the above, he was certainly not confronted with this contradiction. The Board is right when they state that: "he did not know where the groups came from" but clearly the Board is wrong when they state "or who they were" since at no time did the applicant say that it was anybody other than two groups of workers fighting. In my view the Board misconstrued the evidence before it in a material way in the above paragraph and this constitutes a reviewable error.

[4]                 The applicant also submitted that the Board misinterpreted the evidence with respect to the March 21, 1993 incident where he was arrested by the police at his welding shop. The Board stated:

He indicated that the police had arrived while the nationalists were breaking the windows of his shop with stones. Instead of arresting the nationalists, the principal claimant alleged that he was detained by the police for three days for being Kurdish. The principal claimant had no political profile and was not involved publicly in Kurdish politics or cultural matters.

The principal claimant's oral testimony is not consistent with the British Home Office assessment and the United States Department of State report on the treatment of Kurds in Istanbul and other urban centres in the west of Turkey.

With respect to this incident, the Board member did put the British Home Office country assessment to the applicant and I will set out the portions of the assessment that were read to the applicant and his reply.

Outside southeast Turkey, Kurds to not usually suffer persecution or even bureaucratic discrimination, provided that they do not publicly or politically assert their Kurdish ethnic identity.

It goes on that:

Kurds who publicly or politically assert their Kurdish ethnic identity run the risk of harassment, mistreatment and prosecution.

It goes on to say:

In urban areas, Kurds are largely assimilated. Many publicly identify themselves as Kurds ...

INTERPRETER      Publicly identify themselves?

WATERS

... publicly identify themselves as Kurds and generally do not endorse Kurdish separatism.

And speaking of urban areas again, they say:

Indeed, they often interact with Turks, reach the highest levels of society and are seldom discriminated against on ethnic grounds.

...

MALE CLAIMANT    Whatever is explained here and my own experiences are very different. Because my mother tongue is Kurdish, it is easy to detect that I'm Kurdish from my accent. My children don't have a Kurdish accent. Perhaps they can become Turkicized [sic], assimilated. They many [sic] not experience problems because they don't have an accent and their birthplace is Istanbul. For me, there's a big problem.

In that material from the British Home Office it indicates that in urban areas Kurds are seldom discriminated against but it does not indicate that there is any persecution against the Turks in urban areas. Admittedly in the first paragraph, which does not refer to urban areas, they talk about "do not usually suffer persecution". I note that the Board members referred in particular to Istanbul and other urban centres when they stated that the documents they were looking at were supposedly not consistent with the applicant's oral testimony. In my view this is very questionable and although this error by itself might not constitute a reviewable error, certainly when it is added to the first finding of the Board referred to above, the matter must be sent back to the Board for redetermination by another panel.

[5]                 On the third and fourth points which relate to the son being pulled down from a parked truck by a Turkish neighbour in 1992, and the Board's comments with respect to the Turkish authorities refusing to give the applicant any help when his home was severely damaged in the Turkish earthquake on August 17, 1999, both these findings were open to the Board. In both these incidents the Board's view was one of one or more possible interpretations of the evidence and accordingly the Board made no error in this respect.

[6]                 The application for judicial review is granted. The decision of the Board dated April 30, 2001 is quashed. The matter is returned to a differently constituted panel of the Board for redetermination.

                                                                                      "W.P. McKeown"

                                                                                                       JUDGE

OTTAWA, ONTARIO

March 28, 2002