Date: 20110215
Docket: IMM-2999-10
Citation: 2011 FC 177
Ottawa, Ontario, February 14, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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SABRI CEKIM
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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 JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision made
on May 3, 2010 by the Immigration and Refugee Board (“Board”) of the Refugee
Protection Division in Toronto wherein it was determined that the applicant was
found not to be a Convention refugee or a person in need of protection.
BACKGROUND
[2]
The
facts of this case are largely not disputed. The applicant is a Kurdish Alevi
who claims a fear of persecution on the grounds of his political activity,
religion and nationality. He says he is also a military draft evader and
believes he will be persecuted by the military if returned to Turkey. The
applicant’s political involvement led to a number of arrests. He alleges being mistreated
by the police. The applicant obtained a passport in February 2006 and came to Canada in 2007.
DECISION UNDER REVIEW
[3]
The
Board found the applicant to be not credible. In reaching such a finding, the Board
noted that the applicant had provided inconsistent evidence relating to subjective
fear; had exaggerated his treatment by the police; provided confusing evidence
with respect to his employment and the issuance of his passport; contradicted
himself in his oral testimony and failed to provide sufficient supporting
documentary evidence that would have substantiated his alleged involvement with
the Democratic Society Party (“DTP”), as well as the alleged mistreatment by
the police. The contradictory testimony cast doubt on the totality of his oral
evidence, including the establishment of a political profile with DTP and that
he was a person of interest to the Turkish police. The Board concluded that their
focus on the applicant was not serious, persistent or repetitive. It was also
found that there was no basis for the claim he would be persecuted as a
conscientious objector. What he really feared, the Board concluded, was
prosecution, not persecution.
ISSUE
[4]
Was
the Board’s decision reasonable?
RELEVANT STATUTORY
PROVISIONS
[5]
Sections
and 96 and 97 of the IRPA set out what it means to be a Convention
refugee and a person in need of protection:
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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,
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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 :
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(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
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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;
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(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.
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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.
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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
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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 :
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(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
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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;
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(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.
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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.
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(2) A person
in Canada who is a member of a class of persons
prescribed by the regulations as being in need of protection is also a person
in need of protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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ANALYSIS
[6]
The
determinative issue in this case is one of credibility. Accordingly, the
standard of review is reasonableness. It is well established that Board Members
are in the best position to gauge the plausibility and credibility of an
account: Aguebor v. Canada (Minister of Employment
and Immigration) (1993), 160 N.R. 315, 42 A.C.W.S. (3d) 886 (F.C.A.) at
para. 4; Aguirre v. Canada (Minister of
Citizenship and Immigration), 2008 FC 571 at para. 14; Silvia Mata
Diaz v. Canada (Minister of Citizenship and Immigration), 2010 FC 319
at para. 34.
Further to the Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick,
2008 SCC 9 at para. 47, the Court should not interfere with tribunal findings
that fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law.
[7]
In
the present case, the Board accepted that the applicant’s philosophical views
were such that he participated in certain political activities resulting in
police detentions. However, it was not believed, based on the evidence as a
whole, that he was targeted by the police, was of ongoing interest to them or
that he was tortured. It was open to the Board to make this finding. See
generally: Karadeniz v. Canada (Minister of
Citizenship and Immigration), 2010 FC 1246.
[8]
Particular
attention was drawn to five instances where the applicant put forth
inconsistent evidence or exaggerated his claim. This led to the Board’s
findings of implausibility or negative credibility that are central to this
judicial review. First, the Board pointed to the inconsistency of evidence on
the applicant’s subjective fear. At the port of entry (“POE”), it was noted
that Mr. Cekim stated that he feared the Nationalist Movement Party (“MHP”) if
returned to Turkey due to
problems spanning from 2004 to 2006. In oral testimony and in his narrative, however,
he stated that he was afraid of the Turkish police. His explanation for this
inconsistency was that he was afraid to tell the immigration officers in Canada, whom he
assumed to be police, that he was afraid of the police.
[9]
This
Court has held that inconsistencies between an applicant’s POE statements and
those given before a Board can support a negative credibility finding: Maimba v. Canada (Minister of
Citizenship and Immigration), 2008 FC 226 at para. 11. In the instant case,
because of the
inconsistencies between the applicant’s claim as outlined in the POE notes and
his later narrative and evidence, it was open to the Board to find that his
fear of persecution was not credible.
[10]
The
Board reasonably found that the applicant had been planning to come to Canada since 2006
because he had heard it was “good for refugees”. She found this intention to be
a calculated decision, evidenced by the fact that the applicant’s entire family
raised money to pay for an agent to assist him in coming here. He researched
where he wanted to go and waited until December 2007, until the visa was in
order. He said he would have tried going to Europe if “here [Canada] did not
work”. The applicant did not give evidence of
any other attempts to go elsewhere any earlier in order to secure safety from
his alleged persecution. The Board also noted that he has moved around Turkey with various
employment positions. Further, he was able to defer his military service.
[11]
It
was also reasonable for the Board to find that the applicant embellished his
claim by exaggerating the fact that he was beaten during the 2006 detention. His
oral testimony was inconsistent with his PIF narrative in this regard. During
his hearing, the applicant said he was beaten at the police station. When asked
why he had gone into detail about other similar incidents but did not discuss this
event at any great length, including omitting it in his PIF narrative, the
applicant explained it was because “they did not like as before they just a few
slaps and that is all, that is why I did not write it down”. Based on this
response, it was open to the Board to make a negative credibility finding.
[12]
The
applicant argues that this exchange was at a point in the hearing where there
was confusion with the interpreter. However, a careful review of the transcript
shows that this inconsistency and the finding of embellishment cannot be attributed
to the interpreter. Although there were certain times in the hearing when
clarification was needed, this was not one of them. The interpretive difficulty
came before.
[13]
The
Board also found the applicant to have given confusing evidence surrounding his
employment at the time of his fourth detention in July 2007, some of which was
inconsistent with his PIF. The Board found that the applicant embellished
evidence to strengthen his claim and retreated from earlier evidence when confronted
with an inconsistency. The Board took issue with the explanation given with
respect to when he was fired from his employment after his detention. The
testimony at this point in the hearing was confusing but it was not necessarily
an embellishment. With that said, because deference is owed to the decision-maker
and an adverse finding was within the range of acceptable outcomes, the Court
should not interfere with the decision as a whole to correct the Board’s
finding on this matter.
[14]
It
was also reasonable for the Board to make a negative finding from a lack of
further documentary evidence: Kalengestani v. Minister of Citizenship and
Immigration., 2006 FC 1528 at paras. 10-12. In situations like this, when credibility
is at issue, if the applicant fails to corroborate certain claims, the Board is
entitled to conclude that an absence of evidence to bolster a claim supports an
adverse credibility finding: Karadeniz, supra at para. 36. See also: Muchirahondo
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 546.
[15]
Finally,
with respect to the evidence submitted regarding the applicant’s passport, the
Board rightly noted that in order to be considered a Convention refugee, the
applicant would have to establish a true and well-founded fear of persecution. The
applicant received his passport in February 2006 but did not leave Turkey until
December 2007. His failure to come to Canada at the earliest possible time
after having obtained a passport pointed to a lack of credibility with respect
to his subjective fear: Natynczyk v.
Canada (Minister of Citizenship and Immigration), 2004 FC 914 at para. 69; Yurteri v. Canada (Minister of Citizenship and Immigration), 2008 FC 478 at para. 26.
[16]
Based
on the cumulative assessment of the evidence before it, the Board reasonably
determined that the applicant did not endure a sustained or systematic
violation of fundamental rights. As such, and based on the facts, he could not
be considered to be a persecuted person or a person in need of protection. The
Board did acknowledge the objective documentary evidence which indicates that
certain high profile, politically active Kurds could have severe problems with
the Turkish government. However, the applicant in this case did not establish
this profile.
[17]
The
Board made a reasonable decision that was not based on an erroneous finding of
fact made in a perverse or capricious manner or without regard to the material
before it. The applicant refers to Ahmed v. Canada (Minister of
Citizenship and Immigration), 2004 FC 1076 and Veres v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 124 to suggest that the
Board failed to deal with explanations that may have resolved problems with his
evidence. These cases do not apply here. The Board’s findings are both
justified and justifiable. It is clear, based on the evidence on record, how
the Board arrived at the decision that it did. Therefore, the Board’s decision
fell within a range of possible, acceptable outcomes defensible in respect of
the facts and law. The decision was neither perverse nor capricious. I am not
entitled to reweigh the evidence: Matsko v. Canada (Minister of
Citizenship and Immigration), 2008 FC 691 at para. 10.
[18]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is dismissed.
There are no certified questions.
“Richard
G. Mosley”
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