Date:
20121220
Docket:
IMM-3262-12
Citation:
2012 FC 1529
Toronto, Ontario,
December 20, 2012
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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EMRAH DEMIRSAHLAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
The
present Application for judicial review concerns a decision of the Refugee
Protection Division (RPD) dated March 9, 2012, in which the Applicants’ claim
for refugee protection under s. 96 and s. 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 on the basis of political identity in Turkey
was rejected.
[2]
In
my opinion, the RPD’s decision is made in reviewable error. The key passages in
the decision leading to this conclusion are as follows:
This
was an unusual hearing in some respects. The claimant initially indicated he
could not testify; as he was nervous and-panicked. In fact, a medical note was
presented to that effect. To accommodate the claimant, after several sittings
of the hearing where no direct evidence was taken, the hearing was finally
held. The Panel allowed the unusual accomodation [sic] of allowing the
interpreter who assisted the claimant in drawing his PIF to be the Designative
Representative [sic] (DR) noted herein. He testified in English only, with the
consent of counsel and the claimant, without a translation back to Turkish to
the claimant. However, the DR and claimant were advised at the hearing that
they could communicate with each other at the hearing, in Turkish even, if the
DR needed more information. That in fact was not needed much or at all, as the
DR was able to respond to all or most of the questions asked. Counsel and the
claimant confirmed, twice, that the claimant would be bound by what the DR
said.
Towards the end of the hearing,
the claimant himself interjected and insisted that he answer, himself, a
question posed of the witness or the DR. He did, and he was thus asked why, if
he was so psychologically impaired as he alleged, such that the hearing had to
be delayed several times to accommodate his alleged disability to testify, did
he suddenly jump in and enthusiastically offer to give testimony. He simply
replied that he wanted to answer the question, and then denied that he could
have given oral testimony all along. From this dramatic reversal in
behaviour of the claimant the Panel makes a negative inference as to
credibility.
[Emphasis added]
(Decision, paras. 9 and 10)
[3]
The
very current January 16, 2012 “medical note” referred to by the RPD is that of
a physician who offered the opinions that the Applicant suffers from panic
disorder and “he needs a designated representative to talk on his behalf in
Court” (Tribunal Record, pp. 60 – 61). Also on the record before the RPD was a
November 14, 2011 report from a psychiatrist who diagnosed the Applicant as
suffering from posttraumatic stress disorder (Tribunal Record, pp. 356 - 359).
[4]
The
Applicant’s “interjection” arises from a question posed by the Applicant’s
Counsel to a witness for the Applicant who has known the Applicant since 2005;
they both attended a May 1, 2006 Labour Day celebration in Turkey. The transcript on this issue reads as follows:
A.
We did
participate in 2006, May 1st rally.
a.
And
where was it?
A.
In
Izmir.
Q.
And
why were you there?
A.
We
are labourers and that May 1st represents a labour holiday,
therefore we went there to celebrate.
Q.
And
how does the government view these May 1st Labour Day
celebration?
A.
The
government’s faith is the Islamic faith, therefore they would perceive that
(inaudible) therefore they are against it.
Q.
These
people who go to the May 1st, I mean are they -- what issues
do they support, is it just labour rights or are there other
issues?
A.
First
of all, they are defending or supporting the labour workers
rights.
CLAIMANT: Can I answer to that?
COUNSEL FOR CLAIMANT:
No, because I don’t think Mr. Member would allow ---
MEMBER:
Yeah, sure.
COUNSEL
FOR CLAIMANT: Okay. Thank you, Mr. Member.
CLAIMANT:
Could you please ask again?
COUNSEL FOR CLAIMANT: The question was
just when you go to demonstrations what issues do people there support, was it
just labour rights or are there other issues?
CLAIMANT:
The labour rights and human rights, women’s rights and gay rights,
that’s all.
MEMBER:
Sorry, I have to ask you a question now. Why did you jump in at this point? I
thought you were too depressed to give evidence; so why did you in
such an animated fashion jump in?
CLAIMANT:
I just wanted to answer.
MEMBER:
Were you able to give testimony all along just like you did now?
CLAIMANT:
No.
MEMBER:
Okay, thank you. Sorry, counsel.
COUNSEL
FOR CLAIMENT: Thank you, Mr. Member.
[Emphasis
added]
(Tribunal
Record, pp. 470 – 471)
[5]
On
two occasions in the course of the hearing the Designated Representative
attempted to explain conflicts in the Applicant’s PIF narratives as a result of
the Applicants poor psychological state: he said he was in New York for three
months, and then later saying he was in Seattle for 3 months (Decision, para.
15); and he failed to mention in a second narrative the agents of persecution
he identified in his first narrative as “EMEP” party members, radical Muslims
and nationalists (Decision, para. 22). With respect to both instances, reliance
was placed on the negative credibility finding arising from the “interjection”
incident to make further findings of negative credibility. In my opinion, this
course of conduct on the RPD’s part was unwarranted and had a remarkably unfair
impact on the Applicant’s claim.
[6]
In
essence, as a result of the interjection, the RPD made an implausibility
finding and a conclusion based upon it: that is, it is implausible that the
Applicant would have interjected as he did if he was incapable of testifying,
and, thus, he was not telling the truth about being incapable of testifying.
This line of reasoning is sheer conjecture. The only evidence on the record
that might supply some evidence of what to expect from the Applicant’s conduct
is that he suffers from panic disorder and posttraumatic stress disorder. In my
opinion, all that is capable of being reliably deduced from the Applicant’s
interjection is that he wanted to answer, and he did, in 8 words; nothing more.
[7]
As
a result, I find that the decision under review was rendered in reviewable error
and is unreasonable.
ORDER
THIS
COURT ORDERS that:
The decision
under review is set aside and the matter is referred back for redetermination
by a differently constituted panel.
There is no question to
certify.
“Douglas R. Campbell”
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