Date:
20121029
Docket:
IMM-1630-12
Citation:
2012 FC 1254
Ottawa, Ontario,
October 29, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
ISMAIL DAG
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
Board), dated January 19, 2012, wherein the applicant was determined to be
neither a Convention refugee within the meaning of section 96 of the Act nor a
person in need of protection as defined in subsection 97(1) of the Act.
[2]
The applicant requests that the Board’s
decision be set aside and the application be referred back to the Board for
redetermination by a different panel.
Background
[3]
The
applicant is a citizen of Turkey. He alleges that he was persecuted due to his
participation in Kurdish political groups, including detention and torture by
the Turkish police.
[4]
The
applicant is Kurdish and was marginalized growing up in Turkish society. He is
a supporter of HADEP, known as the People’s Democracy Party in English, which
supports the cause of Kurdish nationalism.
[5]
In
1995, he was detained for three days and subjected to being blindfolded and
tortured. He was abused in the military and badly beaten.
[6]
In
1999, he attended a HADEP press conference in Amasya and was detained for two
days, accused of being a member of the Kurdistan People’s Party (a terrorist
organization) and subjected to torture.
[7]
In
2009, he was attacked by Turkish nationalists and detained by police for two
days. He was badly tortured, resulting in a chest wound.
[8]
In
2010, he was detained by police, who attempted to recruit him as an informant.
They repeatedly called him on his cell phone. This led to his decision to leave
Turkey. He arrived in Canada via the United States on November 23, 2010 and
his refugee claim was heard on January 18, 2012.
Board’s Decision
[9]
The
Board rendered its decision on January 19, 2012. The Board began by summarizing
the applicant’s allegations.
[10]
The
Board considered credibility to be the determinative issue in this claim. The
Board focused on a psychological report in evidence that referred to the
applicant’s religion as Alevi instead of Muslim and rejected the applicant’s
explanations that this was due to translation error or left in the doctor’s
template by error. The applicant was unable to produce any document proving his
religion. Since many Alevi bring forward refugee claims in Canada, the Board found that the applicant had attempted to embellish his claim by telling the doctor
he was Alevi and made a negative credibility finding.
[11]
The
Board also made a negative inference as to credibility based on the fact that
the applicant had expressed no pro-Kurdish political opinions during his time
in Canada and noted the lack of documentary evidence supporting his claim of
supporting political parties or his detentions and beatings.
[12]
The
Board noted the applicant omitted mention of a 1995 attack in his Personal Information
Form (PIF) narrative, IMM 5611 and port of entry interview. The Board rejected
the applicant’s explanation that he had forgotten to mention this incident and
made a negative credibility inference.
[13]
With
regards to the applicant’s description of his 1999 torture, the applicant wrote
in his narrative he had been beaten on the soles of his feet. The Board noted
that only at the hearing did the applicant claim he was also beaten in the
abdomen. The Board rejected his explanation that he had probably forgot and
made a negative credibility inference.
[14]
The
Board found that the applicant had been inconsistent in describing whether it
was during his 1999 or 2009 torture incidents that he had been stripped naked.
The Board rejected his explanation that he had mixed up the two incidents and
drew a negative credibility inference.
[15]
Similarly,
the Board pointed out that the applicant had written in his narrative that
during the 2009 torture, he was beaten with wooden and iron sticks, but at the
hearing only referred to iron sticks. The applicant was unable to explain this
inconsistency.
[16]
The
Board identified other inconsistencies between the applicant’s medical evidence
and his oral evidence, including whether a scar from his 2009 torture was on his
right side or his left side and whether his face had been beaten.
[17]
Given
the identified credibility concerns, the Board did not accept the applicant’s
claim that he was involved in pro-Kurdish agitation. Instead, the Board
considered whether he would suffer persecution simply as a Kurdish person in Turkey and concluded Kurds face discrimination but not persecution. Therefore, the Board
rejected the claim.
Issues
[18]
The
applicant submits the following points at issue:
1. Did the Board
member err in law by failing to provide adequate and valid reasons for the
negative credibility determination?
2. Did the Board
member err in law by making patently unreasonable inferences and relying on
such to justify the negative decision?
3. Did the Board
member err in law by selectively referencing supporting documentary evidence
while ignoring contradictory documentary evidence?
4. Did the Board
member err by simply misunderstanding or misapprehending central aspects of the
applicant’s claim?
[19]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the Board err
in rejecting the applicant’s claim?
Applicant’s Written Submissions
[20]
The
applicant submits that in assessing credibility, the Board should not
microscopically comb the evidence searching for trivial errors and
inconsistencies. In this case, the Board made a number of negative inferences
due to matters irrelevant or peripheral to the applicant’s claim.
[21]
The
Board focused on the trivial matter of whether a certain scar was on the left
or the right side of the applicant’s chest, but ignored the doctor’s evidence
that various scars were consistent with torture described in the applicant’s
narrative.
[22]
The
Board made an issue of the applicant’s religion, but the applicant has not
claimed refugee protection based on religious persecution. The applicant has
been consistent in identifying his religion as Muslim. The Board rejected the
possibility that the doctor’s report referred to Alevi religion as a template
error by referring to “several other concerns in regard to credibility”, an
inadequate justification given the applicant had claimed to be Muslim in every
other piece of evidence.
[23]
The
Board doubted the applicant’s pro-Kurdish sentiments since he had not engaged
in any political activity in Canada, an unreasonable finding given that a
person arriving in a new country may easily have more pressing issues than
political activity.
[24]
The
Board erred by considering the omitted details about the detention and torture
of the applicant to be contradictions and embellishments. The thrust of the
evidence regarding an altercation with ultra-nationalists was to showcase the
brutal treatment by police of detained Kurdish demonstrators.
[25]
The
Board omitted important evidence such as the police’s threats against the
applicant in July 2010 that led to his fleeing Turkey and the letter from his
wife indicating the police had visited his home five times since he had left Turkey. On this error alone, the decision should be quashed.
Respondent’s Written Submissions
[26]
The
respondent contends the applicant’s evidence contained inconsistencies and
embellishments, that the reasons provided were adequate and that the Board
properly considered country conditions.
[27]
The
respondent argues the Board is owed deference on the weighing of evidence and
drawing conclusions from evidence. Reasons should be read as a whole. The Board
understood the facts of the claim and found insufficient evidence to support a
positive finding.
[28]
Credibility
findings are based on oral hearings and the Court should not interfere unless
satisfied the Board based its conclusion on irrelevant considerations or
ignored evidence. It was open to the Board to reject the applicant’s
explanation for the document identifying him as Alevi. It is possible that none
of the Board’s findings on their own would have resulted in a negative
decision, but the Board’s decision was based on a totality of the evidence. The
Board is entitled to reject uncontradicted evidence if it is implausible.
[29]
Refugee
status does not exist at large for anyone from a country with an unfavourable
human rights record. The applicant failed to adduce evidence that he was
personally threatened.
Analysis and Decision
[30]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[31]
It
is established jurisprudence that credibility findings, described as the
“heartland of the Board’s jurisdiction”, are essentially pure findings of fact
that are reviewable on a reasonableness standard (see Lubana v Canada
(Minister of Citizenship and Immigration), 2003 FCT 116, [2003] FCJ No 162
at paragraph 7; Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at paragraph 46; and Demirtas v Canada (Minister of
Citizenship and Immigration), 2011 FC 584, [2011] FCJ No 786 at paragraph
23). Similarly, the weighing of evidence and the interpretation and assessment
of evidence are reviewable on a standard of reasonableness (see Oluwafemi v Canada (Minister of Citizenship and Immigration), 2009 FC 1045, [2009] FCJ No 1286 at
paragraph 38).
[32]
In
reviewing the Board’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; and Canada Khosa above, at paragraph 59). As the Supreme
Court held in Khosa above, it is not up to a reviewing court to
substitute its own view of a preferable outcome, nor is it the function of the
reviewing court to reweigh the evidence (at paragraph 59).
[33]
Issue
2
Did the Board err in
rejecting the applicant’s claim?
As described above,
deference is owed to the Board on credibility findings since they are based on
oral hearings while the Court only considers a paper record. The Board is
entitled to make findings based on implausibility (see Gebremichael v Canada (Minister of Citizenship and Immigration), 2006 FC 547 at paragraph 37, [2006]
FCJ No 689).
[34]
However,
not every kind of inconsistency or implausibility in the applicant’s evidence
will reasonably support the Board’s negative credibility finding. This is
particularly true of issues irrelevant or peripheral to the claim (see Gebremichael
above, at paragraph 37).
[35]
The
applicant’s alleged torture is hardly irrelevant to his claim. That said, the
Board’s focus on minor details (such as whether the instrument of torture was
made of wood or iron, which of four incidents of torture the applicant involved
being stripped naked, whether the applicant was beaten on his face in addition
to his abdomen and the location of a scar) is indicative of an overzealous
approach that demands more of the applicant’s memory than is reasonable,
especially given his central allegation that he is a victim of repeated
torture.
[36]
The
Board was right to be concerned that a key piece of the applicant’s evidence, a
medical report, referred to the applicant’s religion as Alevi. The Board’s
rejection of the applicant’s explanation for this inconsistency, however, was
in part based on “several other concerns in regard to credibility”. I would
note that all of the applicant’s other documents that mentioned religion stated
that his religion was Islam or Muslim. Given this fact, it does not appear to
me that the Board’s conclusion that this would result in the applicant being
not credible is reasonable.
[37]
With
respect to the Board’s finding that the applicant did not take part in Kurdish
activities in Canada that would support the Kurdish movement does not, in my
view, make the applicant not credible.
[38]
With
respect to the location of the scar on the applicant’s chest, the doctor states
that the scar is on the right side of his chest. The applicant consistently
stated it was on the left side of his chest. I cannot see how the applicant
could control what the doctor wrote. On the facts of this case, I do not
believe that this alone supports a non-credibility finding, particularly since
the doctor also stated that, “The scars that I observed are consistent with Mr.
Dag’s history of assault while in police detention in Turkey.”
[39]
There
is also the further submission that the Board did not take into consideration
the applicant’s wife’s letter that stated the police had visited her five times
asking about her husband and that they had threatened her with detention. Also,
the Board did not take into consideration the fact that the applicant’s nephew
was found to be a Convention refugee in September 2002. This information could
be relevant to the claim but was not considered by the Board. This results in a
reviewable error (see Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), 157 FTR 35, [1998] FCJ No 1425 at paragraph 17).
[40]
For
the above reasons, the application for judicial review must be allowed and the
matter referred back to a different panel of the Board for redetermination.
[41]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the Board is set aside and the matter is referred to a
different panel of the Board for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
|
25. (1) Subject
to subsection (1.2), the Minister must, on request of a foreign national in
Canada who applies for permanent resident status and who is inadmissible or
does not meet the requirements of this Act, and may, on request of a foreign
national outside Canada who applies for a permanent resident visa, examine
the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
|
25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire, soit ne se conforme pas à la présente loi, et
peut, sur demande d’un étranger se trouvant hors du Canada qui demande un
visa de résident permanent, étudier le cas de cet étranger; il peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
Email this Content