Date: 20070720
Docket: IMM-2867-06
Citation: 2007 FC 759
Ottawa, Ontario, July 20, 2007
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
ULAS CAY
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
1. Introduction
[1]
The Applicant, Ulas Cay, seeks judicial review
of a decision of the Immigration and Refugee Board (the Board) dated May 4, 2006, in which he was found to be neither a
Convention refugee nor a person in need of protection.
2. Background
[2]
The Applicant is a 29 year-old citizen of Turkey. He claims to have a well-founded
fear of persecution because of his family’s religious and ethnical profile as
an Alevi Kurd and on the basis of his political opinions. He also claims to be
a “person in need of protection”.
[3]
The Applicant is married and has one son. Prior
to coming to Canada, he owned a
restaurant in Marmaris and his family lived in Yalova, a city located 50
kilometres east of Istambul. He has 9 years of formal education and worked as a
cook. From May 1997 to November 1998, the Applicant completed his military
service.
[4]
The Applicant alleges that since his school
years he has been harassed by the Turkish authorities because of his
nationality and religion. He alleges that he became involved with the Hadep
party, as early as 1994 according to his testimony. Later, he continued his
political activities with the Yalova chapter of the Dehap party which later
became the People’s Democratic Party.
[5]
The Applicant alleges that he was arrested and
detained on four occasions in 1997, 1999, 2002, and 2004. He alleges that
during these detentions, he was beaten and mistreated. Each time he was
released without charges. He alleges that his family has always been involved
politically and religiously, that their house was raided by the police
authorities and that his father and brothers were also arrested and detained.
He alleges that in April 2004, one of his brothers was charged with “anti-state
activities & harbouring radical leftist militants”.
[6]
The Applicant also alleges that on June 12, 2004, a warrant of arrest was issued
against him for suspected activities against the State. On June 13, 2004, he
left Turkey with a false
passport. He fears arrest, detention and mistreatment at the hands of Turkish
Authorities if he were to return to Turkey.
2. Impugned
decision
[7]
The Board found the Applicant not credible and
consequently found that he was neither a “Convention refugee” nor a “person in
need of protection”.
[8]
On the basis of the documentary evidence, the
Board determined that no evidence was produced to support that the Applicant
could be persecuted because of his religion.
[9]
The Board found that the main issue in the claim
was whether the Applicant had been actively involved in asserting his Kurdish
origin and as a consequence arrested and mistreated and as a result faces a
risk of persecution should he return to Turkey.
[10]
The Board found the Applicant’s testimony to be
confusing and not spontaneous. The Board also noted inconsistencies,
contradictions, additions and omissions and, as a consequence, found his
testimony not to be credible.
[11]
The Board questioned the Applicant about the two
psychological assessments submitted wherein the Applicant was diagnosed as
suffering from Post-Traumatic Stress Disorder (PTSD). The Board found
inconsistencies between answers given to the Doctor and responses to questions
offered at the hearing that the Applicant was unable to explain. The Board
found that these discrepancies undermined the applicant’s credibility. The
Board also found, based on documentary evidence, that the arrest warrant was a
fake document and as a result gave no probative value to the psychological
reports.
[12]
The Board also gave no probative value to a
letter submitted from the President of Dehap Yalova dated December 15, 2005,
which letter essentially corroborated the Applicant’s version of events that formed
the basis for his claim. The Board discounted the letter because of its finding
that the Applicant lacked credibility.
3. Issues
[13]
The Applicant contends that the Board erred in
law or in fact in making its credibility findings. In particular, the Applicant
argues that the Board erred in its treatment of the medical reports, the arrest
warrant and the letter from the President of Dehap Yalova. I propose to deal
with each of these findings in turn below.
4. Standard
of review
[14]
The Board is entitled to base its decision on
evidence adduced in the proceedings which it considers credible and trustworthy
in the circumstances: paragraph 175(1)(c) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27. A reviewing Court will afford a tribunal
great deference on its factual determination and will intervene only when it considers
that the decision is based “…on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before
it" (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.,
1985, c. F-7, s.1; 2002, c. 8, s.14). The Federal Court of Appeal has found
that the applicable standard of review for factual determinations and credibility
findings is patent unreasonableness: Aguebor v. Minister of Employment &
Immigration (1993), 160 N.R. 315 (F.C.A.), at para. 4.
5. Analysis
[15]
The Applicant filed two psychological reports by
Dr. Rabie. Dr. Rabie is a Doctor of Psychology and his credentials are not
challenged in this proceeding. The first report dated July 11, 2005, followed a
two hour assessment on June 27, 2005. In his report Dr. Rabie concluded that “a diagnosis of Posttraumatic
Stress Disorder was appropriate in this case.” A follow-up assessment of
1¼ hour duration was conducted by Dr. Rabie on December 30, 2005, approximately
one month before the first hearing date. In his report dated January 3, 2006,
the Doctor noted that the Applicant’s condition had significantly improved at
that point but stated that, “…it is highly likely that when he first arrived in
Canada, Mr. Cay was so confused and terrified that he may not have conducted
himself in an entirely rational fashion.”
[16]
The Applicant argues that his PTSD had an impact
on his Port of Entry (POE) statements, the Personal Information Form (PIF) and
on his testimony at the hearing and explains his difficulties in providing
evidence. The Applicant contends that the Board committed a reviewable error in
rejecting the Psychological report because of a serious lack of credibility.
Since the Board’s negative credibility findings were based, to a significant
extent, on discrepancies between the Applicant’s POE and PIF evidence and his
other evidence.
[17]
It is clear that a number of the Board’s
negative findings regarding the Applicant’s credibility were based on
inconsistencies, omissions or discrepancies between the POE and/or PIF evidence
and the Applicant’s testimony at the hearing. I note from the Board’s reasons
the following findings:
(1) The Board noted that when questioned about
his political involvement at the POE, the Applicant stated he feared for his
life because of his brother’s political involvement. He did not mention that he
was personally involved. The Board found that this omission undermined the
veracity of his story.
(2) The Board noted that the Applicant had stated
he became politically involved in 1996 in his PIF, but he testified that this
occurred in 1994-95.
(3) The Applicant omitted to mention in his PIF
that he was involved in a “campaign of signatures”. The Board found that the
Applicant changed and embellished his answers and concluded that the
discrepancies undermine the Applicant’s credibility.
(4) The Applicant stated in his PIF that he had
being arrested on four occasions and was mistreated by Turkish authorities. Yet
in response to questions at the POE, he did not mention being arrested or
detained. The Board concluded that this “important” omission undermines the
veracity of his story.
[18]
The second Psychological report indicates that
the Applicant had made a significant recovery from his “formal mental
condition”. There is therefore no evidence that the other credibility findings
of the Board based on discrepancies and omissions in the Applicant’s evidence
are in any way impacted by the PTSD diagnosis. It follows, in my view, that
those findings were reasonably open to the Board on the evidence. The above
findings relating to inconsistencies or omissions observed from the POE or PIF
evidence, however, are problematic. The second Psychological report clearly
states that it is highly likely that the Applicant was not rational at the time
the POE notes and PIF were prepared. The problems which the Board identified
with the Applicant's evidence and behaviour were by no means inconsistent with
the manifestations of the syndrome described in the reports. The Board failed
to deal with this evidence in considering its credibility finding. It simply
determined that “…because of serious lack of credibility, the tribunal does not
give any probative value to the psychological assessments.” The Board erred in
so doing, since it could not simply dismiss evidence which may have had an
impact on credibility determinations on the basis that the Applicant was found
to be not credible.
[19]
The Board is required to be “sensitive and
alert” to such psychological reports, Krishnasamy v. M.C.I., 2006 FC 451
at para. 23. The PTSD diagnosis should have been considered as part of the
Board’s credibility analysis, and not rejected, as the Board did, because of
the Applicant’s lack of credibility. The Board was not alert and sensitive to
the Applicant’s particular circumstances, as described in the reports, at the
time he prepared his PIF or when he answered questions at the POE. It follows,
therefore, that the above mentioned negative credibility findings which flowed
from discrepancies and omissions in the POE and PIF evidence are suspect and
are, in my view, sufficiently important to the ultimate decision of the Board
to warrant the Court’s intervention.
[20]
While my above finding is determinative of this
application, I think it useful to make the following observations regarding the
Board’s treatment of the arrest warrant and the letter from the President of
Dehap Yalova. Both documents were given no probative value, because of the
Applicant’s lack of credibility. Where a tribunal finds a claimant not to be
credible, it can reject the claimant’s documentary evidence solely on that
basis unless independent corroboration is adduced to offset the panel’s
negative conclusion on credibility, Hamid v. Canada, [1995] F.C.J. No.
1293 (QL). Here, while no corroborative evidence was before the Board, its
overall credibility finding is tainted for reasons discussed above. It follows
that it was not open to the Board to reject the two documents solely on the
basis that the Applicant was not credible.
[21]
The arrest warrant, however, was rejected for
other reasons. First, the Board found the document to be a fake document
because, according to the documentary evidence, Turkish authorities do not
issue such documents. Second, the Board found that the Applicant could not
explain why the warrant was issued in Istanbul for an alleged offence which occurred in Istanbul, when the Applicant resided in Yelova and there is a tribunal in
Yelova. The Board concluded that because of the Applicant’s “lack of
credibility” and the documentary evidence on “such documents”, it afforded no
probative value to the warrant of arrest.
[22]
A review of the documentary evidence relied on
by the Board to support its finding, indicates that it is easy to obtain false
documents in Turkey to prove
that an asylum-seeker was wanted by the Turkish authorities. The Norwegian
Country of Origin Information Centre Report, dated October 2004 noted:
… All lawyers I
asked about this invalidated the possible authenticity of such documents.
Neither law enforcement authorities nor any other Turkish official were
entitled to issue such a confirmation. Neither detention-orders, nor warrants
were handed out to the suspect or any other third person before the suspect was
detained.
[23]
The documentary evidence at issue does not
expressly indicate that the courts are not entitled to issue warrants. It expressly
states that neither “law enforcement authorities” nor any other “Turkish
official” were entitled to issue such “confirmation”. It is unclear whether a
Court is to be considered a “Turkish official”. Further, the evidence does not unequivocally
establish that judicial warrants are not issued; it states that the warrants
are not handed to the suspect prior to detention.
[24]
In my view, it was not open to the Board to find
that the warrant was a fake document on the basis of the above documentary
evidence alone. Nor was it open to the Board to base its finding in respect to
the warrant of arrest on the fact the warrant issued in Istanbul for an alleged
offence which occurred in Istanbul. There is no evidence to suggest why such a warrant would necessarily
have to be issued by a tribunal in one’s place of residence, particularly, in
this instance given Yalova’s proximity to Istanbul and the Applicant’s family ties to Istanbul. Further, the Board does not invoke its particular expertise in
making its determination. Without evidence, the Board’s observation is
speculative. Finally, the Applicant cannot be expected, in the circumstances,
to explain why the warrant was issued in Istanbul and not in Yalova.
[25]
I therefore find that it was not open to the
Board to give no probative value to the warrant for these other reasons. The
Board’s finding is not supported in the evidence. The arrest warrant, if
accepted, was evidence that could have corroborated the Applicant’s claim and
may well have impacted the Board’s ultimate negative decision.
5. Conclusion
[26]
For the above reasons, I am of the view that the
Court’s intervention is warranted. The application for judicial review will be
allowed. The matter is to be returned for reconsideration before a differently
constituted panel of the Immigration and Refugee Board in accordance with these
reasons.
[27]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the Immigration Refugee Protection Act, S.C. 2001, c. 27, and
have not done so. I am satisfied that no serious question of general importance
arises on this record. I do not propose to certify a question
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed.
2. The matter is to be returned for
reconsideration before a differently constituted panel of the Immigration and
Refugee Board in accordance with these reasons.
3. No serious question of general importance is certified.
“Edmond P.
Blanchard”
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