Docket: IMM-13168-22
Citation: 2024 FC 196
Calgary, Alberta, February 7, 2024
PRESENT: Madam Justice Go
BETWEEN: |
Raed Wahbi Jihad SABUNJEAUKLO (aka Nihat SABUNCUOGLU) |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Mr. Raed Wahbi Jihad Sabunjeauklo (aka Nihat Sabuncuoglu), is a Turkman from Iraq, and a citizen of Iraq and Turkey. When he applied for refugee status in Canada, on June 9, 2017, the Applicant claimed he was a citizen of Iraq only, and alleged fear of persecution in Iraq.
[2] The Minister of Immigration, Refugees and Citizenship Canada [Minister] filed a Notice of Intention to Intervene in the Applicant’s claim on August 4, 2017, submitting that the Applicant is a Turkish citizen who was imprisoned in New Zealand for fraudulently attempting to acquire status there. The Applicant then provided an amended Basis of Claim [BOC], dated January 21, 2022, in which he admitted to also being a Turkish citizen and raised new allegations of fear of returning to Turkey.
[3] On November 28, 2022, the Refugee Protection Division [RPD] determined the Applicant’s claim was clearly fraudulent, and therefore, manifestly unfounded, pursuant to section 107.1 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] [Decision].
[4] For the reasons set out below, I find the RPD committed no reviewable errors and I dismiss the application. The RDP’s finding of a manifestly unfounded claim was reasonably supported by its findings that the Applicant had put forth an incomplete identity, fraudulent allegations and documents, and obtained documents through fraudulent means, and that the fake allegations were of a material and substantive nature made in an attempt to deceive the refugee status determination process.
II. Background Facts
[5] In the Applicant’s original BOC, the Applicant alleged fear of persecution in Iraq from former Saddam regime authorities who later joined Daesh or the Islamic State. He also claimed fear of persecution as a minority Sunni Muslim Turkman at the hands of Daesh, Kurdish nationalists, and the current Iraqi government.
[6] In support of their Notice of Intention to Intervene, the Minister submitted evidence including fingerprints of a Turkish citizen, Nihat Sabuncuoglu, matching the Applicant’s fingerprints in a number of travel and visa applications to the United States [US] and Canada under that name. The Minister also provided information that the same Turkish citizen was sentenced to 24 months imprisonment in New Zealand for using documents with the intent to defraud an immigration officer and refugee status officers.
[7] In his amended BOC, the Applicant explains he was born in Iraq under the name Raed Wahbi Jahad and that after the end of the Saddam regime, he restored his last name, making him Raed Wahbi Jihad Sabunjeauklo. When he immigrated to Turkey in 1992, for ease of pronunciation, he changed his name to Nihat Sabuncuoglu.
[8] Regarding his fears in Iraq, the Applicant reiterates his fears of Daesh, Kurdish nationalists, and the current Iraqi government. However, while his original BOC recounted incidents of persecution in 2002, 2003, 2008, and 2013, the Applicant’s amended BOC places him in New Zealand between 2001 and 2011 and in Turkey in 2013.
[9] The Applicant explains he illegally entered Turkey in 1992, where he acquired Turkish citizenship and became involved in the Gulen movement (also known as the Hizmet movement). As part of his initial disclosures, the Applicant also provided a copy of a document from the United Nations High Commissioner for Refugees [UNHCR] dated January 11, 2013, indicating that the Applicant, an Iraqi national, would like to seek asylum in Turkey, even though the Applicant was granted Turkish citizenship after he submitted an application in or about 1993. The Applicant admitted at the RPD hearing that he only provided his Iraqi identity to UNHCR officials.
[10] The Applicant then moved to New Zealand in April 2001 and applied for refugee status. The Applicant’s refugee application in New Zealand was refused a year later, but the Applicant remained in New Zealand where he started a family and opened a franchise restaurant business.
[11] In 2006, New Zealand immigration officials requested to interview the Applicant and a legal battle ensued because of the Applicant’s withholding of his Turkish citizenship when he first applied for refugee status in New Zealand. After release from his 24 months of imprisonment in 2009, the Applicant’s legal troubles continued and he decided to leave New Zealand in September 2011.
[12] The Applicant moved back to Turkey with his wife and children. Throughout his years in Turkey, the Applicant visited Iraq several times, as well as other countries including the US in October 2015; Australia on February 6, 2016 to visit his wife and children who had moved there; Denmark on July 4, 2016 to visit his sister; and Germany on July 15, 2016 to visit another sister. The Applicant explains that when he was visiting his sister in Germany, he heard about the attempted coup in Turkey and that the Gulen movement was accused of instigating the coup. The Applicant travelled back to Turkey on July 17, 2016, where his friends advised him to rid himself of any association with the Gulen movement.
[13] The Applicant applied for and received a five-year Canadian visitor visa at the end of 2016. In his Canadian visa application—as well as in his US and Australian visa applications prior—the Applicant omitted his New Zealand past.
[14] On February 7, 2017, the Applicant was terminated from his employment at a hospital he worked for in Turkey. The Applicant alleges he was let go because of his association with the Gulen movement. Meanwhile, the Applicant’s wife filed for divorce on March 1, 2017.
[15] The Applicant claims he first arrived in Canada on April 5, 2017 on his visitor visa and returned back to Turkey on April 15, 2017. When he returned to Turkey the Applicant’s friend warned him that his former employer sent a list of names of terminated employees to a government office and that his name was on the list. Fearing for his safety, the Applicant returned to Canada on May 19, 2017. In his original BOC, however, the Applicant had claimed he arrived in Canada on June 3, 2017 with the help of a smuggler and a fake Greek passport.
[16] The Applicant explains he was afraid of applying for refugee status in Canada, given his New Zealand past, and so he based his claim on fear of persecution in Iraq, attributing his mental health state at the time to him making ill-informed decisions.
III. Issues and Standard of Review
[17] The Applicant raises the following issues:
The RPD erred in its assessment of the Applicant’s credibility.
The RPD erred by finding the claim to be manifestly unfounded.
[18] The parties agree the standard of review is reasonableness, as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov].
[19] Reasonableness is a deferential, but robust, standard of review: Vavilov at paras 12-13. The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified: Vavilov at para 15. A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker: Vavilov at para 85. Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its consequences: Vavilov at paras 88-90, 94 and 133-135.
[20] For a decision to be unreasonable, the Applicant must establish the decision contains flaws that are sufficiently central or significant: Vavilov at para 100. Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision-maker, and it should not interfere with factual findings absent exceptional circumstances: Vavilov at para 125. Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep:”
Vavilov at para 100.
A. Did the RPD err in its assessment of the Applicant’s credibility?
[21] The Applicant raises several arguments to submit that the RPD erred in its credibility assessment. First, the Applicant contends the RPD erred in its assessment of the evidence concerning the Applicant’s mental health. Second, the Applicant submits the RPD erred in its assessment of his fears in Turkey.
[22] The Applicant also alludes that the RPD failed to assess documents that are not in dispute with regard to his claims against Iraq, and failed to assess these documents separately from its credibility findings. Without more, the Applicant’s argument in this regard amounts to mere assertion, and does not warrant any further analysis. I will however address the remaining two arguments the Applicant raised on credibility.
i. The RPD did not err with respect to its assessment of the psychiatric evidence and the Applicant’s mental health as part of its credibility analysis
[23] Before the RPD, the Applicant presented two psychiatric reports: a psychiatric report from New Zealand, dated April 10, 2008 [New Zealand psychiatric report] and a psychiatric report from Toronto, dated September 14, 2018 [Toronto psychiatric report].
[24] The New Zealand psychiatric report described the Applicant’s symptoms and behaviour as consistent with Post-Traumatic Stress Disorder [PTSD], which included psychological distress, numbing of emotional responsiveness, hyper arousal, sleep problems, difficulty concentrating, and hypervigilance. The Toronto psychiatric report similarly described the Applicant as exhibiting symptoms of PTSD, hyper arousal, anxiety, depression, numbing, and impaired concentration and memory.
[25] The Applicant submits his past is full of profound pain and struggle, including his imprisonment in New Zealand and losing his family and work, which resulted in prolonged mental anguish and affected his judgement when he made his refugee claim in Canada. The Applicant also submits that, considering his circumstances, “it is in the realm of possibility that the lapse in state of mind could last for the duration of his application.”
[26] The Applicant argues that despite his mental health problems, the RPD found his claim was fraudulent, even though he corrected his mistake “with a plateau of evidence to support the facts he presented subsequently.”
[27] I find the RPD committed no reviewable errors in assessing the Applicant’s mental health.
[28] Contrary to the Applicant’s assertion, the RPD did consider the Applicant’s mental health issues. The RPD noted the recurrence of the Applicant’s reliance on his mental health condition to explain his situation. It accepted the psychiatric reports, as well as the Applicant’s description of his mental health state. However, the RPD noted that there was no documentation before it of a current proscribed medication, what medication the Applicant was on, or how the medication affected him.
[29] The Applicant did provide a copy of a receipt for anti-depression medication, issued December 20, 2021, as part of the evidence of his ongoing mental health issue, but as the Applicant concedes, the receipt was not included in the index heading of the materials submitted to the RPD. Besides, as the Respondent submits and I agree, regardless of the RPD’s finding on the Applicant’s proof of medication, or lack of, the RPD accepted that the Applicant’s mental health condition could impact his testimony. Further, as the Respondent notes, the issue for the RPD was that the Applicant’s mental health condition did not rectify its concern over the alleged fabrication and the Applicant did not address this point. Missing the anti-depression medication receipt does not undermine the RPD’s main conclusion regarding the Applicant’s fabrication.
[30] Specifically, the RPD observed that in his original claim of fearing persecution in Iraq, the Applicant did not merely provide small inconsistences, rather he attested to “entire events that transpire[d] over the course of years, which [the Applicant] has admitted to fabricating.”
They were not, as the RPD concluded, specific dates or small details that could easily be forgotten, even when considering the Applicant’s diagnosis. The RPD further emphasized that the discrepancies in question were presented in the Applicant’s original BOC and supporting documents. The RPD noted the Applicant’s friend created and wrote letters of support including the threatening letter, which demonstrated the Applicant “put effort into creating and substantiating these fabrications rather than demonstrating a lapse in state of mind.”
Finally, noting the Federal Court’s jurisprudence that psychiatric reports do not serve as a cure-all for any and all deficiencies, the RPD found the Applicant’s mental health condition did not explain his credibility issues.
[31] In my view, all of the above noted findings were grounded in the evidence and the RPD conducted an analysis in accordance with the established jurisprudence. At the end of the day, the RPD’s conclusion that the Applicant’s mental health issue could not explain away the Applicant’s “lies”
and “fabrications”
was reasonable.
ii. The RPD’s credibility findings with respect to the Applicant’s allegations against Turkey were reasonable
[32] The Applicant makes two arguments regarding the RPD’s finding on his fears in Turkey: (1) the RPD erred in its assessment of the supporting documentation and (2) the RPD erred in finding the Applicant reavailed himself when he returned to Turkey from Germany. I will address these two arguments separately.
The RPD did not err in its assessment of the supporting documentation
[33] With respect to the supporting documents, the Applicant argues the RPD should have communicated its concerns about the documents to him, but it instead conducted an “improper microscopic analysis”
of his documentation, contrary to the jurisprudence. The Applicant cites Castro Gutierrez v Canada (Citizenship and Immigration), 2007 FC 1192 [Castro Gutierrez] at para 7 and Nagy v Canada (Citizenship and Immigration), 2013 FC 640 [Nagy] at para 34 in support.
[34] With respect, neither of these cases assist the Applicant. In both cases, the Court found the RPD did not engage in a microscopic analysis. The paragraph the Applicant quotes in Nagy was part of the applicant’s argument. In Castro Gutierrez, the Court cautioned against conducting a microscopic examination on issues irrelevant or peripheral to the applicant’s claim: Castro Gutierrez at para 11. However, the Court specifically made a distinction between false documents “to support allegations in a refugee claim”
versus “false identity papers the claimant may have obtained from a smuggler.”
The Applicant’s fraudulent activities in this case fall within the former category that the Court in Castro Gutierrez found would legitimately allow a tribunal to doubt a claimant’s credibility: Castro Gutierrez at para 7.
[35] The Applicant also suggests the RPD did not look to his account of events, including his job expulsion, alongside the National Documentation Packages [NDP] evidence, which speak to his persecution. He cites an excerpt from the NDP which lists how Hizmet supporters are identified by Turkish authorities and that those perceived to be affiliated are also at risk of persecution. Last, the Applicant submits that when he was questioned on the Hizmet movement at the hearing, neither the RPD nor the Minister contradicted his answers, suggesting that his answers at the hearing proved his association to the Gulen/Hizmet movement.
[36] The Applicant submits he provided a “slew of evidence”
corroborating his claim that he fears returning to Turkey because of his affiliation with the Gulen/Hizmet movement and the RPD failed to conduct an independent analysis of his documentation. This evidence includes the letters of support from the Canadian Turkish Friendship Community [CTFC] and Pearl of the Islands Foundation, his son’s registration in a Hizmet-affiliated school, the Zaman newspaper subscription, bank statements from Bank Asya, and an arrest warrant.
[37] The Applicant points to two documents he argues the RPD erred in assessing: the CTFC letter (and loops in the Pearl of Islands Foundation letter in his argument) and the arrest warrant. The Applicant submits the letter from the CTFC could have been easily verified given that it was signed off with a name and phone number. Yet, the Applicant argues, the RPD went on to discredit the letters without explaining why it was fabricated apart from its finding on past fabrication. The Applicant submits this constituted a “great leap,”
and argues that there is nothing on the face of the letters to discount them.
[38] With respect to the arrest warrant, the Applicant submits that foreign documents are presumed to be genuine, but wrongly cites Maldonado v Minister of Employment and Immigration, 1979 CanLII 4098 (FCA), [1980] 2 FC 302 at 305, which stands for the presumption of truthfulness. The Applicant asserts the RPD erred in finding the arrest warrant was fabricated.
[39] I reject all of the Applicant’s arguments.
[40] The RPD analyzed all the above-mentioned supporting documents and provided detailed reasons for assigning them little to no weight.
[41] With respect to the letters from the CTFC and the Pearl of the Islands Foundation, the RPD noted they were both Hizmet-inspired organizations. The RPD further noted that both of these letters were typed, the former on letterhead, the latter not, and both could easily be created through a word processing software. Citing the lack of documents to authenticate the identity of the authors, the RPD decided to give them no weight. I see no errors arising from these reasons. In the context of this case, I find the RPD had no obligation to verify the letters from these organizations.
[42] I also find the RPD had no obligation to communicate its concerns about these documents to the Applicant. As the RPD found, and I agree, credibility issues arising from one set of documents sometimes cannot be ignored when assessing another set of documents: Navaratnam v Canada (Citizenship and Immigration), 2011 FC 856 at para 1 and Toora v Canada (Citizenship and Immigration), 2006 FC 828 at para 1. The RPD reasonably determined that the presumption of truthfulness had been rebutted in the context of this case. The Applicant fails to point to any actual error, but rather asks the Court to reweigh the evidence.
[43] With respect to the arrest warrant, like the letters, the RPD did not find the arrest warrant was fabricated but rather gave the arrest warrant little weight, after questioning its authenticity in view of the Applicant’s demonstrated willingness and ability to obtain documentation through fraudulent means (including the UNHCR document), and the objective evidence of corruption in Turkey. The RPD also found that the arrest warrant alone, or otherwise combined with the other documents submitted by the Applicant, was insufficient to establish that the Applicant faces a serious possibility of persecution in Turkey. The RPD’s reasons for not accepting the arrest warrant were transparent, justifiable and intelligible.
[44] At the hearing, the Applicant further submitted the RPD failed to mention several supporting documents and conduct an independent analysis of such documents, including his bank statements, Hizmet newspaper subscription, and son’s school enrolment. After I pointed out to the Applicant that the RPD did analyze some of these documents, the Applicant refocused his argument on the school enrolment document only. The Applicant submitted that there was no inconsistency between this document and his testimony, and the RPD erred in not accepting the document.
[45] I disagree.
[46] As the Respondent notes, the document consists of emails and receipts related to one son’s 2020 attendance at a college in Australia. The emails or receipts did not show any link with the Hizmet movement or identify the Applicant in any way. While the Applicant asserted in his BOC narrative that his son is studying in a “Gulen Movement’s college,”
he provided no evidence to support this statement. In the absence of evidence to demonstrate an affiliation between the college and the Gulen movement, or the link between the Applicant and the college, I find the RPD’s failure to mention these emails and receipts do not constitute any reviewable error.
The RPD did not err in finding that the Applicant’s return to Turkey from Germany undermine his subjective fear and credibility
[47] Regarding his return to Turkey after the attempted coup, the Applicant argues the RPD erred in determining that his return indicated that he reavailed himself or that he did not fear persecution in Turkey. The Applicant cites a number of cases to argue the Court has found that returning to one’s country of nationality does not mean a claimant has reavailed themselves, or no longer possess a subjective fear of persecution in that country: Martinez Requena v Canada (Citizenship and Immigration), 2007 FC 968 [Martinez Requena] at para 7 and Kanji v Minister of Citizenship and Immigration, 1997 CanLII 5052 [Kanji]. The Applicant also cites Cruze v Canada (Citizenship and Immigration), 2015 FC 1256 [Cruze] at para 3 to assert that an assessment of fear must be in accordance with the evidence.
[48] The Applicant submits that if a claimant clearly states they did not intend to reavail themselves and that they have not lost their subjective fear, the RPD would err in finding otherwise. The Applicant does not cite case law in support of this assertion, although I agree that returning to a country of nationality is not determinative of subjective fear.
[49] However, I find the Applicant’s argument misconstrues the RPD findings. The RPD found the Applicant’s reavailment to Turkey in July 2016 undermines his subjective fear and credibility, citing the following reasons:
First, the RPD was concerned with Applicant’s evolving responses. The Applicant first testified that although he knew of the coup while in Germany, he did not know that the Gulen movement was blamed until after he returned to Turkey. Later, the Applicant stated he was aware of the Gulen movement being blamed while he was in Germany, but he did not realize the severity of the situation until later, and he did not think he would be at risk because he is not a high ranking member of the Gulen movement.
Second, the RPD noted that Germany is signatory to the Convention Relating to the Status of Refugees. While accepting that the Applicant might not claim protection at that point in time, given the novelty of the coup, the RPD found that the Applicant’s responses were insufficient to establish that it was reasonable for the Applicant to return to Turkey at a time of uncertainty, given his involvement with the movement.
[50] In other words, the RPD did not reject the Applicant’s claim solely on the basis of reavailment. Rather, the RPD pointed to the Applicant’s reavailment and his evolving testimony surrounding his return to Turkey as the basis for undermining his subjective fear and credibility.
[51] I note that in Martinez Requena, one of the cases the Applicant cites, the Court provided examples of when return may not constitute reavailment, including where a claimant believes the country conditions have changed or was temporarily visiting the country and remained in hiding during the visit: Martinez Requena at para 7. In Kanji, the issue for the Court was that the tribunal did not listen to or address the applicant’s testimony that she did not reavail herself or lose her subjective fear when she returned to India. Neither of these situations apply to the case at hand.
[52] Further, unlike the applicant in Cruze, the Applicant has not pointed to anything in his cultural background to explain his decision for not filing a refugee claim in Germany and for returning to Turkey. Also unlike Cruze, the RPD in this case assessed the Applicant’s claim of subjective fear and credibility in accordance with the evidence.
[53] For all these reasons, I find no basis to interfere with the RPD’s findings with respect to reavailment.
B. Did the RPD err in finding the Applicant’s claim was “manifestly unfounded?”
[54] Under section 107.1 of the IRPA, which is reproduced at Appendix A, the RPD must state its reasons for rejecting a refugee claim on the basis that it is manifestly unfounded.
[55] The Applicant submits the RPD conflated pure credibility findings with a finding of manifestly unfounded. The Applicant also submits the RPD’s credibility findings were flawed and so it failed to meet the high threshold for making a finding of manifestly unfounded, precluding him from appealing the Decision or benefiting from a statutory stay of removal.
[56] The Applicant cites Warsame v Canada (Citizenship and Immigration), 2016 FC 596 [Warsame], at paras 30-31, for the definition of clearly fraudulent. The Applicant also cites Yared Belay v Canada (Citizenship and Immigration), 2016 FC 1387 at para 55 to assert that there has been very little analysis by the RPD as to the threshold for a finding under section 107.1.
[57] According to Warsame, the finding of a “clearly fraudulent”
claim means it is the claim itself that is assessed as being fraudulent, and not the fact that the applicant would have used, for instance, fraudulent documents to get out of the country of origin or to gain access to Canada: Warsame at para 27.
[58] The threshold for section 107.1 is high and must be grounded in evidence: Ahmad v Canada (Citizenship and Immigration), 2019 FC 11 at para 30, citing Yuan v Canada (Citizenship and Immigration), 2018 FC 755 [Yuan] at para 45 and Bushati v Canada (Citizenship and Immigration), 2018 FC 803 at para 45; Fatoye v Canada (Citizenship and Immigration), 2020 FC 456 at paras 43-52; and Tacoa Veljovic v Canada (Citizenship and Immigration), 2023 FC 1069 at para 66.
[59] In addition, the standard of proof for a finding that a claim is manifestly unfounded is on a balance of probabilities: Balyokwabwe v Canada (Citizenship and Immigration), 2020 FC 623 [Balyokwabwe] at para 40.
[60] The Applicant asserts that if there is credible or trustworthy evidence that could support a positive determination, the RPD cannot make a manifestly unfounded finding, pointing again to the letter from the CTFC and excerpts from the NDP describing persecution in Turkey faced by Hizmet supporters.
[61] As I have already found the RPD’s assessment of the letter from CTFC reasonable, I see no merit in the Applicant’s reliance on the same document to challenge the RPD’s “manifestly unfounded”
finding.
[62] The Applicant cites Rahi v Canada (Citizenship and Immigration), 2017 FC 843 [Rahi] which set aside an RPD decision of manifestly unfounded because of fact finding failures on key credibility issues. He also cites Balyokwabwe at paras 45 and 59. I find both cases distinguishable on the facts. In Rahi, Justice Campbell, in his brief decision, found that the RPD failed to supply cogent evidence and clear reasons for reaching a speculative conclusion that the applicant invented and embellished their claim: Rahi at para 4. In Balyokwabwe, Justice Pallotta concluded that the RPD’s findings were based on exaggerations or a misapprehension of the evidence: Balyokwabwe at para 42. In the case at hand, I find no such errors in the Decision.
[63] The Applicant also argues that the RPD’s reasons “fall short of the clearly fraudulent standard required,”
but does not elaborate on what the standard should be.
[64] The Respondent acknowledges that the threshold for section 107.1 is high, but the Applicant makes an argument on merits when he submits the threshold has not been met. The Respondent also submits that, given the wholesale fabrication found in this case, the RPD’s conclusion that the threshold has been met was reasonable. I agree.
[65] In my view, the RPD provided sufficient reasons in its Decision and explained why its credibility concerns make the claim clearly fraudulent, as instructed by this Court: Yuan at para 46 and Liu v Canada (Citizenship and Immigration), 2018 FC 933 at para 17-18.
[66] Specifically, the RPD noted at para 71 of the Decision:
Having found that the claimant put forward incomplete identities, false allegations, as well as fraudulent documents and documents obtained through fraudulent means, to support that he was at risk - false allegations of a material or substantive nature made in an attempt to deceive the authorities determining refugee status - I find, on a balance of probabilities, that this claim is clearly fraudulent.
[67] The RPD reached its conclusion after having engaged with all the key evidence before it, and provided detailed reasons for its findings with respect to the elaborate “lies”
and “fraudulent documents”
that the Applicant has put together throughout his claim history. Applying Warsame to the case at hand, and noting the high threshold for section 107.1, I find the RPD’s finding of the Applicant’s claim “manifestly unfounded”
reasonable.
[68] The application for judicial review is dismissed.
[69] There is no question for certification.
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