Date: 20090205
Docket: IMM-3174-08
Citation: 2009 FC 122
Ottawa, Ontario, February 5, 2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
NAHIDE ULUK
ERSIN ULUK
DURU ULUK
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review raises issues of quality of translation, failure to consider
evidence, and flawed implausibility/credibility findings in a decision denying
a refugee claim by persons claiming persecution because of alleged familial connections
to a terrorist organization in Turkey.
II. BACKGROUND
[2]
The
principal Applicant, Nahide Uluk, her husband, Ersin, and their daughter, Duru,
are Alevi Kurds and nationals of Turkey. The couple also have a
son who is Canadian born.
[3]
The
principal Applicant’s sister-in-law (her brother’s wife) was a spokesman for
the PKK until 2004 and has been a resident of the U.K. since 1980. The
sister-in-law’s ties with the PKK were a subject of considerable concern to the
Applicants and apparently to Turkish authorities. The PKK is considered by Turkey, the U.S., and the
E.U. to be a terrorist organization. The sister-in-law’s nom de guerre
was Mizgin Sen. She also served as a member of the Kurdish Parliament in exile.
The sister-in-law severed those ties in 2004.
[4]
The
core of the Applicants’ case is that, since 1994, they and other family members
were targeted by police because of their perceived alliance or association with
the PKK through the sister-in-law, Mizgin Sen.
[5]
Mrs.
Uluk outlined a number of incidents of threats, intimidation, and assaults
against members of her family. These incidents included her father being
detained and beaten on several occasions by the local gendarme and her sister
being questioned by police and put under police surveillance, all of which were
said to be related to their connection to Mizgin Sen.
[6]
With
respect to the Applicants, in 1997 Mr. Uluk, when challenging the police about the
warrantless search of their home, was beaten and questioned concerning the
whereabouts of Mizgin Sen and her husband. He was then taken into custody and
held overnight.
[7]
A
week after the above incident Mrs. Uluk was accosted by an individual who
warned her that her brother would be harmed and that she should tell them everything
she knew or she would suffer. The individual then hit her with his revolver and
she regained consciousness in hospital. The police refused to assist Mrs. Uluk
because of her connection to Mizgin Sen.
[8]
These
types of incidents died down thereafter, until 2004 when Mrs. Uluk received a
telephone call from her brother. The following day police arrived at the
Applicants’ home to question them. In the course of questioning, each of the
adult Applicants were slapped and threatened. A lawyer that the Applicants
consulted immediately following this incident advised them that while the
police had no authority to do what they did, there was no protection against
police abuse and no other assistance available from any other organizations
such as those for the protection of human rights or civil liberties.
[9]
The
Applicants also claimed that, in 2005, police had attempted to take their child
away from her daycare centre. The attempt was prevented by school officials.
[10]
It
was after this incident that the Applicants made plans to leave Turkey as
unobtrusively as possible and chose to flee to Canada, rather than
a European country, because they perceived a substantial risk that their
refugee claim would be rejected and they would be returned to Turkey under an
even greater threat if they fled to Europe. The Immigration and Refugee
Board (Board) rejected the Applicants’ claim principally on the grounds that
the story lacked overall coherence in that it did not make sense.
[11]
The
Board made a number of credibility/implausibility findings, some of which are:
a.
the
police would not have attempted to abduct the child rather than arresting the
parents, and that the police would have forced the abduction of the child if
they truly wished it;
b.
that
the Applicants were not genuine in their fear as they did not seek immediate refugee
status in Europe, to which they frequently travelled, in the face of alleged
threats to their child;
c.
that
the Applicants were not genuine in their fear as they had left their daughter
and simultaneously been out of the country;
d.
that
there was no sensible reason for police to be interested in a person who was
the eighth youngest sibling in a family where the sister-in-law had renounced
her association with the PKK;
e.
that
it had taken four attempts to have the Applicants answer a question related to
what attempts had been made to question other siblings about Mizgin Sen before
their departure for Canada, for which the answer was that only one sister was
questioned back in 1997; and
f.
that,
having accepted Amnesty International’s contention that family members involved
in opposition politics in Turkey are at risk of persecution, the Board
expected that evidence of this fact would have been forthcoming from the
Applicants.
[12]
The
Board was dismissive of any and all explanations advanced by the Applicants. It
therefore rejected the refugee claims.
[13]
The
Applicants have raised three challenges to the Board’s decision:
a.
that
there was a breach of natural justice due to the seriously flawed
interpretation;
b.
that
the Board failed to consider specific documentary evidence which was contrary
to the Board’s findings;
c.
that
the Board made improper findings of implausibility.
[14]
The
last two grounds are so closely intertwined that in these Reasons they may be collapsed
into one for purposes of analysis.
III. ANALYSIS
A. Standard
of Review
[15]
The
parties avoided the issue of the standard of review, perhaps hopeful that it
would somehow disappear as a matter for consideration. However, the Court must
address the matter.
[16]
In
the post-Dunsmuir era (Dunsmuir v. New Brunswick, 2008 SCC 9),
the issues of implausibility/credibility are generally reviewed on the
reasonableness standard, with deference to the Board’s role in assessing
evidence in the context of the case (see Bal v. Canada (Minister of
Citizenship and Immigration, 2008 FC 1178). However, in this case, a
critical aspect of the implausibility issue is the failure to consider (or
address) key documentary evidence. Failure to consider important evidence is a
legal error and, like a breach of natural justice, is subject to the
correctness standard of review (Ozdemir v. Canada
(Minister of Citizenship and Immigration), 2001 FCA 331 at paragraph 7). In the
alternative, if the Board did address the evidence, the treatment of this
highly relevant evidence was so cursory and one-sided that it was outside the
realm of reasonableness.
B. Flawed
Interpretation
[17]
The
Applicants allege that there were some 10 errors in translation, including at
least four wrong interpretations which caused the Board to believe that the
Applicants were avoiding answering questions or were otherwise making
non-credible or implausible statements.
[18]
The
Applicants argue that there was a denial of natural justice because an
applicant is entitled to “continuous, precise, competent, impartial and
contemporaneous” translation and that a party need not show prejudice in
respect of misinterpretation (Mohammadian v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 191 at paragraph 4). I agree that this is
the test in Mohammadian.
[19]
Even
if prejudice had to be shown, the Applicants say that prejudice occurred
because of misinterpretation of key elements of the case. These key elements
included the Board’s perception that the Applicants attempted to avoid
answering questions and providing details of what occurred after Mizgin Sen
left the PKK and that they provided details of “when” rather than “where” the
Applicants travelled.
[20]
I
have examined the errors in interpretation and am mindful of the caution by
Chief Justice Lamer in R. v. Tran, [1994] 2 S.C.R. 951, that
interpretation can never be perfect.
[21]
I
am not persuaded that the errors of interpretation were such that, as a general
matter, the interpretation fell below the standard set in Mohammadian.
[22]
I
do reject any argument that the Applicants waived the errors in translation by
failing to object at the hearing. The evidence is that they only became aware
of the errors in translation when they read the decision. It would be illogical
to expect a person to object to translation errors when they did not understand
the second language or were not sufficiently fluent in both languages to
discern such errors.
[23]
On
the issue of prejudice, it is unclear that misinterpretation caused the
implausibility findings. In my view, the more salient issue in this case is the
failure to consider the evidence/implausibility matter. My conclusions as to
interpretation can, if it is not apparent, be considered obiter dicta.
C. Implausibility/Failure
to Consider Evidence
[24]
The
first error was the Board’s conclusion that the adult Applicants were outside
the country together and the resulting negative conclusion as to credibility
and plausibility about their claim because they failed to take the first
opportunity together to leave the country. There was no evidence to support
this conclusion and the documentary evidence and the testimony was to the
contrary. The Applicants explained that they were out of the country
individually and at different times, for reasons explicitly related to their
fear of persecution and plan to claim refugee status in Canada.
[25]
The
second and most significant error was the finding that there was no evidence
with respect to the harassment of other family members to corroborate the
Applicants’ claim.
[26]
It
is accepted jurisprudence that there is an obligation on the Board to consider
all documentary evidence and failure to mention or analyse important evidence
justifies an inference that the Board ignored the evidence, particularly where
that evidence runs contrary to the Board’s own conclusions (see Cepeda-Guttierez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35).
[27]
The
Applicants referred to and submitted two letters from family members, each
showing that other family members were subjected to pressure and threats (including
detention and interrogation) from Turkish authorities, related to the family’s
deemed association with the PKK.
[28]
Not
only does this evidence corroborate key components of the Applicants’ claim,
and show that there is a current risk if the Applicants are returned to Turkey because of a
continuing interest by the Turkish authorities in the Applicants, but equally
importantly, it addresses a key finding of the Board made against the
Applicants and renders the Board’s conclusion unsound.
[29]
The
Board noted at paragraph 30 of the decision:
The panel notes as well the letter from
Amnesty International which discusses Amnesty’s awareness that family members
in Turkey can indeed be at risk of
mistreatment. The panel accepts that this is an accurate representation of many
families with members involved in opposition politics in Turkey. If that were true of the
claimants’ families, however, the panel would have expected evidence that more
of them were questioned about Mizgin Sen.
[30]
The
Board accepted Amnesty International’s evidence that family members in Turkey, whose
members may be involved in political opposition, can be at risk of
mistreatment. The Board then expected that similar evidence would have been
submitted by the Applicants about their family members’ mistreatment. The Board
appears to have missed the fact that that expectation was met, and by deeming
such evidence absent, the Board considered such absence to be a further
evidence of implausibility and lack of credibility.
[31]
There
is no reference in the decision to the evidence of the other family members, no
reference to the two letters submitted and no reference to the testimony of the
Applicants as to these letters. Even if it could be said that there is a
reference, it appears in one-fifth of a sentence at paragraph 23 of the
decision, and ignores the evidence that demonstrates the authorities were
targeting other family members based on their relationship to Mizgen Sen.
[32]
The
conclusion of the Board is directly contrary to the evidence which was before
it. The evidence was critical and compelling, and the Board was required to
consider it. The Board’s failure to do so was a legal error and it resulted in
the Board erring in its implausibility and credibility findings.
[33]
There
are other unsupported findings that undermine the Board’s decision, but given
that the above review already demonstrates that the matter must be subject to a
new determination, no further examination is necessary.
IV. CONCLUSION
[34]
Therefore,
this judicial review will be granted, the Board’s decision quashed, and the
matter remitted to a different panel for a new determination. There is no
question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the Board’s decision is quashed,
and the matter is to be remitted to a different panel for a new determination.
“Michael
L. Phelan”
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