Date:
20130318
Docket:
IMM-7961-12
Citation:
2013 FC 281
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
March 18, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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BEYAZIT TAS
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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]
The
applicant, a citizen of Turkey, seeks judicial review of a decision dated
July 18, 2012, by which the Immigration and Refugee Board, Refugee
Protection Division [panel], determined that he was neither a Convention
refugee nor a person in need of protection within the meaning of
sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001,
c 27. Essentially, the panel based its decision on the applicant’s lack of
credibility and on the existence of contradictory evidence regarding his
alleged fear of persecution.
[2]
The
applicant alleges that he is an Alevi Kurd from the city of Izmir. He claims to
fear persecution in his country for reasons of his Kurdish ethnicity, his Alevi
faith and his perceived political opinion by reason of his father’s membership
in the Democratic Society Party [DTP], a Kurdish nationalist party.
[3]
For
the reasons that follow, the Court is of the opinion that this application for
judicial review should be dismissed.
Facts and
procedural history
[4]
In
his Personal Information Form [PIF], the applicant alleges that he has suffered
from systemic discrimination since he was a young child. At school, he was
forced to take religious classes and pray with Turkish students. He also
alleges that since the mandatory language of instruction was Turkish, he was
not allowed to learn his mother tongue and was discriminated against because of
his Kurdish accent.
[5]
The
applicant alleges that in March 2007, during Kurdish New Year’s
celebrations in which he was taking part, the Turkish police attacked the
crowd, and many people were arrested. The applicant was not arrested, but he
was allegedly bitten by a police dog.
[6]
In
November 2009, the applicant and his father allegedly took part in an
assembly of DTP members during which members of the Nationalist Movement Party
[MHP], supported by the security forces, allegedly attacked DTP supporters. Ten
people were allegedly injured, and many people, including the applicant and his
father, were arrested and detained by the police. The applicant alleges that
during the two days they were detained, he and his father were beaten and
warned not to take part in such demonstrations.
[7]
After
his release, the applicant decided to leave Turkey and claim refugee protection
in Canada, where his sister lives. He arrived in Canada on August 21,
2010, and filed his refugee protection claim on August 23, 2010. His PIF
is dated September 15, 2010.
[8]
The
panel’s refusal to allow the applicant’s refugee protection claim is based
entirely on a lack of credibility regarding various elements of his claim,
essentially because of contradictions and inconsistencies arising from the
evidence which the applicant was unable to explain to the panel’s satisfaction.
[9]
The
panel’s main concerns may be summarized as follows:
•
The
applicant stated in his testimony that upon his release in November 2009, he
went to Istanbul and stayed with his aunt until he left Turkey in
August 2010. However, this fact was not mentioned in his refugee
protection claim or in his answer to Question 11 in his PIF. On the
contrary, the applicant states in his PIF that he worked as a cleaner for the
municipality of Izmir from December 2008 to August 2010. Furthermore,
in his temporary visa application filed on July 19, 2010, in Ankara,
he gives a residential address in the city of Izmir. The applicant was unable
to explain this inconsistency to the panel’s satisfaction;
•
In
his refugee protection claim, the applicant states that he fears [translation] “the police, the army and
right-wing youth groups”, whereas he does not mention any negative experiences
with the army in the narrative included in his PIF. In his refugee protection
claim, the period during which the applicant allegedly performed his mandatory
military service (August 1999–February 2000) does not match the
period stated in his PIF (August 2000–February 2002), and he was
unable to provide the name of his commanding officer;
•
In
response to Question 37 in his refugee protection claim, as in his
temporary visa application, the applicant states that he has never been
arrested or detained by the police or any other authority, whereas he alleges in
his PIF and testified at the hearing that he was arrested and detained for two
days;
•
The
applicant also provided contradictory information concerning his employment
history, particularly between 1998 and 2008. While in his refugee protection
claim, he does not list any employment during that period, he states in his PIF
that he worked in construction as an independent contractor between
February 2002 and January 2008. At the hearing, however, he stated that
between 2002 and 2008, he held only temporary, short-term jobs. The panel noted
that the applicant’s testimony on this subject was not credible;
•
In
his PIF, the applicant claims that he belongs to the Alawite religion, while in
his refugee protection claim, he states that he is Alevi. At the hearing, the
applicant confirmed that he is Alevi and claimed that the contradiction was due
to a translation error. The panel had doubts about this explanation, since the
applicant thought it relevant to file in support of his refugee protection
claim an article from the Financial Times, dated March 23, 2012, regarding
discrimination against the Alawite community in Turkey;
•
In
his PIF, the applicant states that Kurdish is his mother tongue and that he
speaks both Turkish and Kurdish fluently. However, he asked for a Turkish
interpreter at the panel hearing, saying that he did not speak Kurdish fluently;
•
Finally,
the applicant’s passport contained a visa for Thailand, received on
July 15, 2010, of which he claimed to be unaware. The applicant explained
that the agent he had hired to obtain a Canadian visa had also obtained a Thai
visa for him, without his knowledge, but the panel found this explanation to be
implausible.
[10]
In
light of these contradictions, the panel concluded that there was insufficient
evidence to prove the central element of the applicant’s claim, namely, that he
was an Alevi Kurd. The panel also notes that according to the applicant’s
testimony, his father, although arrested and detained in November 2009, was
not prosecuted and has had no problems with the police or right-wing supporters
since that time. It was therefore unlikely that the applicant, who unlike his
father was not an active member of the DTP, would risk being persecuted if he
returned to Turkey, especially since he allegedly lived peacefully in Izmir
from his release in November 2009 until his departure for Canada in
August 2010.
[11]
The
applicant argues that the panel based its decision on a microscopic analysis of
the evidence on record and that it did not truly focus on the essential
elements of his claim. Although he failed to raise this argument at the first
opportunity, the applicant argues that in retrospect, there is an appearance of
bias on the part of the panel, since the decision is based solely on
unreasonable findings of fact unrelated to the central elements of his refugee
protection claim, which according to the applicant raises the fear of prejudice
on the part of the panel. The applicant adds that the fact that the panel
rendered its decision in English when the pleadings were drafted in French and
the hearing was held in French with the assistance of a Turkish interpreter
confirms this bias.
Issues
[12]
In
light of the arguments made, the issues may be stated as follows:
1. Has
the applicant proved that there is a reasonable apprehension of bias on the
part of the panel?
2. Does
the fact that the reasons for decision were issued in English rather than
French amount to a lack of reasons or in any other way constitute a breach of
procedural fairness? (This issue will be addressed first.)
3. Did
the panel make an unreasonable finding concerning the general credibility of
the applicant?
Standard of
review
[13]
It
is trite law that assessing the credibility of witnesses falls within the
panel’s jurisdiction and that the panel has all the specialized expertise
necessary to analyze and weigh the facts with a view to assessing a refugee
protection claimant’s subjective fear of persecution (Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration) (FCA), [1998] FCJ no 1425
at para 14).
[14]
When
applying the reasonableness standard of review, the Court must defer to the
panel and ask whether the impugned decision meets the requirements of
justification, transparency and intelligibility within the decision-making
process and, more generally, whether the decision falls within “a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47; Khosa v
Canada (Minister of Citizenship and Immigration), 2009 SCC 12 at para 59).
[15]
However,
with regard to the analysis of the breach of the principles of natural justice
or procedural fairness, the Court does not owe deference to the decision maker (Luzbet
v Canada (Minister of Citizenship and Immigration), 2011 FC 923 at para 5).
No basis for an
apprehension of bias or a breach of procedural fairness
[16]
Having
read the impugned reasons for decision and the hearing transcripts, I am
satisfied that the applicant has not proved any bias, actual or apprehended, on
the part of the panel. Essentially, the applicant is arguing that an
unfavourable finding, based on peripheral evidence that is of little relevance
to the basis for his refugee protection claim, would be enough to conclude that
there is an appearance of bias on the part of a decision maker. Such a
conclusion has no basis in the applicable case law.
[17]
As
Justice Mosley notes in Arrachch v Canada (Minister of Citizenship and
Immigration), 2006 FC 999 at paras 20-21, the applicable
test for a reasonable apprehension of bias differs from the one applicable to
allegations of actual bias, which requires “material evidence demonstrating
conduct that derogates from the standard” (see Arthur v Canada (Attorney
General), 2001 FCA 223 at para 8). I also refer to the remarks of
Chief Justice Crampton in Dunova v Canada (Minister of Citizenship and
Immigration), 2010 FC 438 at paras 49-51, in which he writes:
The
classic articulation of the test for what constitutes a reasonable apprehension
of bias was enunciated by Justice de Grandpré in Committee for
Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R.
369 at 394. In the course of dissenting on the issue of whether the facts in
that case gave rise to a reasonable apprehension of bias, Justice de Grandpé
observed that “the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to the question and
obtaining thereon the required information.” He added that the “test is what
would an informed person, viewing the matter realistically and practically –
and having thought the matter through – conclude…”
In R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 111 to 113,
Mr. Justice Cory adopted Justice de Grandpré’s statement of the test,
observed that “the threshold for a finding of real or perceived bias is high”,
and emphasized that “the reasonable person must be an informed person.”
In Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, at para. 76,
the high test to be met when alleging bias was confirmed. In a unanimous
judgment, the Supreme Court observed that “the standard refers to an apprehension
of bias that rests on serious grounds, in light of the strong presumption of
judicial impartiality.” The Court then proceeded to approvingly note that
Justice de Grandpré added to “the now classical expression of the
reasonable apprehension standard” when he observed: “The grounds for this
apprehension must, however, be substantial, and I … refus[e] to accept the
suggestion that the test be related to the ‘very sensitive or scrupulous
conscience’.”
In Geza, above, at paras. 52 -53, it was held that the approach
described above applies to the determination of refugee claims by the Board,
given the Board’s independence, its adjudicative procedure and functions, and
the fact that its decisions affect the rights of claimants under the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.
11 . . . .
[Emphasis added.]
[18]
The
applicant did not raise any specific act or remark on the part of the decision
maker that would allow him to rebut the presumption that the panel was
impartial. I have no doubt that the panel was indeed impartial.
[19]
The
applicant adds that the fact that the panel’s decision was originally sent to
him in English adds to his reasonable apprehension of bias and of a breach of
procedural fairness.
[20]
A
similar argument was made in this Court in Obidigbo v Canada (Minister of
Citizenship and Immigration), 2008 FC 705, in the matter of an
application for judicial review of a decision of a pre-removal risk assessment
officer. The Court rejected the argument to the effect that the officer
breached a duty of procedural fairness in rendering her decision in French when
she did not speak French, stating as follows at paragraph 34:
No one is challenging the fact that the applicants
had proceeded exclusively in English until the decision dated August 8,
2007, and that the PRRA decision was rendered in French. However, the
application for leave indicates that the female applicant received the written
reasons for the decision on September 7, 2007, and that she did not request
that an English version of the decision be sent to her. The female applicant’s
counsel merely said that [translation]
“the female applicant’s fundamental rights were infringed on because she
received a decision only in French, without a translation, which resulted in
her being unable to understand the reasons without an interpreter . . . ”
without stating the type of harm she had supposedly suffered. It should be
noted that the letter that was sent with the PRRA decision was in English and
that, a priori, the language of the PRRA decision did not seem to have
hindered the female applicant from finding out what it said, despite having to
use an interpreter, and of then undertaking legal proceedings within the prescribed
time limit. Considering that the female applicant did not request a translation
of the reasons for the officer’s decision and that she suffered no harm (Yassine
v. Canada (Minister of Employment and Immigration, (1994) 172 N.R. 308
(F.C.A.) [1994] F.C.J. No. 949 (QL)), I am of the opinion that there was
no breach of the duty of procedural fairness in the circumstances.
Consequently, this Court’s intervention is not warranted for this reason.
[21]
I
cannot agree with the applicant’s argument, since a French version of the
decision was sent to the applicant in time for him to adequately present his
arguments in this application for judicial review. Moreover, counsel for the
applicant was unable to refer the Court to any excerpt from the hearing
transcript that would suggest that the parties and the panel had problems
communicating with each other. The panel did indeed understand the applicant’s
position.
The panel’s
findings of fact are, on the whole, reasonable
[22]
The
applicant submits that the panel was overzealous in its approach, desperately
trying to find contradictions in his testimony and going over the evidence with
a fine-toothed comb, contrary to the principles laid down by the Federal Court
of Appeal in Attakora v Canada (Minister of Employment and Immigration),
[1989] FCA no 444.
[23]
Essentially,
the applicant relies on case law of this Court that warns against giving too
much importance to notes taken at ports of entry when assessing the credibility
of a refugee protection claimant. Such an approach may constitute a reviewable
error, particularly when the panel “placed too much importance on peripheral
elements and failed to focus on the real issues that were before it: the
applicant’s subjective fear of persecution and the objective basis for such
fear” (RKL v Canada (Minister of Citizenship
and Immigration), 2003 FCT 116 at para 13 [RKL]). The
same is true where the panel simply ignores relevant evidence or is selective
with regard to the explanations given by the claimant (Wu v Canada (Minister
of Citizenship and Immigration), 2010 FC 1102, at para 36; Hamdar
v Canada (Minister of Citizenship and Immigration), 2011 FC 382 at
para 48).
[24]
It
is true that it would be an error on the part of the panel to rely on
statements given by refugee protection claimants at the port of entry, where
conditions are generally unfavourable to them and, at the very least, are
likely to give rise to misunderstandings owing to interpretation and
translation errors. As Justice Russel states in Cetinkaya v Canada (Minister
of Citizenship and Immigration), 2012 FC 8 at para 51, “[t]he
purpose of the POE interview is to assess whether an individual is eligible
and/or admissible to initiate a refugee claim. It is not a part of the claim
itself and, consequently, it should not be expected to contain all of the
details of the claim”.
[25]
However,
in the present case, the panel based its decision on contradictions between the
applicant’s refugee protection claim, filed two days after his arrival in
Canada; his PIF, amended at the beginning of the hearing; and the explanations
given during the hearing. Both of these documents were signed and approved by
the applicant, and although I agree with the applicant that some of the panel’s
findings of fact are not defensible in respect of the evidence, the significant
contradictions noted by the panel with regard to the applicant’s employment
between 2002 and 2008, his arrest in November 2009, his home
address in Istanbul and his mother tongue justify the panel’s finding concerning the applicant’s general credibility and the
lack of a subjective fear on his part. As Justice Martineau wrote
in RKL, above, at para 20,
[t]here is no
doubt that a failure to mention the key events on which the refugee claim is
based in a written statement to immigration authorities, or an inconsistency
between such statement and subsequent testimony, are very serious matters that
can potentially sustain a negative credibility finding. However, the omission
or inconsistency must be real: see Rajaratnam v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. 1271 (QL) (C.A.). Besides,
explanations given by the applicant which are not obviously implausible must be
taken into account: see Owusu-Ansah, supra.
[26]
The panel had good reason not to be satisfied with the
applicant’s explanations to the effect that all of these contradictions could
be attributed to his nervousness and to errors made by the interpreter.
[27]
Finally,
the applicant makes no mention of the panel’s finding to the effect that the
simple fact that his father was not prosecuted and has had no problems with the
police or right-wing militants since their arrest in November 2009
contradicts the applicant’s fear of being persecuted should he return to
Turkey. This finding, too, is reasonable.
[28]
For
these reasons, this application for judicial review is dismissed. No question of
general importance was submitted for certification, and none will be certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
a.
The
application for judicial review is dismissed.
b.
No
question of general importance is certified.
“Jocelyne Gagné”
Certified
true translation
Michael
Palles
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