Date: 20030320
Docket: IMM-2051-02
Neutral citation: 2003 FCT 334
Ottawa, Ontario, this 20th day of March 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
BEKIR ADNAN DINK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Mr. Bekir Adnan Dink (the "Applicant") seeks judicial review of the decision made by the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated April 8, 2002. In its decision, the Board found the Applicant not to be a Convention Refugee.
[2] The Applicant, a citizen of Turkey, entered Canada on January 15, 2000. He entered Canada as a visitor, holding a valid visitor's visa and student authorization. He claimed Convention refugee status in Canada on February 15, 2000.
[3] His claim was based on a fear of persecution in Turkey from fundamentalist Muslims and the Turkish State authorities due to his ethnicity and religion, as a Kurdish Alevi. He also claimed to fear persecution on the basis of his political opinion, that is, his perceived opposition to the Turkish government.
[4] The Applicant claimed that he had been discriminated against, threatened and sometimes beaten by his Muslim fundamentalist teachers because of his Alevi religion. He claimed to have suffered similar harassment, violence and discrimination during the period of his compulsory military service.
[5] The Applicant worked as an administration clerk in Istanbul for a number of years. He claimed that he was dismissed in 1997 for refusing to attend prayer services. At another place of employment, he discovered that he was dismissed from his work because his general manager had learned that he was a Kurd.
[6] The Applicant claimed to be a member of the Karacaahmet Sultan Alevi Association (the "Association") and involved in many of its activities, particularly relief activities undertaken after the earthquake in Turkey on August 17, 1999 when the Applicant worked to assist members of the Alevi Kurdish population. The relief efforts included a collection of goods to assist those people. The police seized the aid items that were collected and on September 10, 1999, the Applicant participated in a protest of the police seizure.
[7] The protest was disrupted by fundamentalists and violence broke out. The Applicant was arrested and detained for ten days. He claimed that he was interrogated and tortured during that time. He was released upon the condition of a weekly attendance to sign in at the police station and he was told that he could not leave Istanbul.
[8] The Applicant submitted documentary evidence from the Association confirming his membership and confirming the fact that he had been arrested following the protest on September 10, 1999.
[9] The Applicant claimed that in November 1999, on one of his weekly visits to the police station, a senior police officer brought him into his office and threatened him in a more serious manner than he had previously encountered. The Applicant says that this prompted him to consider leaving Turkey.
[10] The Applicant obtained a student authorization and visitor's visa for Canada, both valid until May 31, 2000. The visitor's visa was issued on December 15, 1999 but the Applicant did not leave Turkey until January 15, 2000. He said he did not leave upon immediate receipt of his visitor's visa because his mother was scheduled for surgery in mid-January. When the surgery did not proceed at that time, the Applicant left Turkey. He entered Canada on January 15, 2000 and claimed Convention refugee status on February 15, 2000. His hearing before the Board took place on March 19, 2002.
[11] In its decision, the Board determined that the Applicant was not a Convention refugee because it found him not to be credible with respect to some critical aspects of his claim. As well, it found that his actions demonstrated a lack of subjective fear of persecution in Turkey.
[12] The Board accepted that the Applicant had a Kurdish and Alevi background. However, it found that although he may have suffered discrimination at school, in the military and in his employment due to his religion or ethnicity, or both, that discrimination did not amount to persecution.
[13] The Board did not believe, on a balance of probabilities, the Applicant's account of his participation in the September 10, 1999 protest and the subsequent arrest, detention and torture which he claimed occurred. It based this finding on two implausibility findings and one negative credibility finding, stated in the following terms at page 4 of its reasons:
...First, it is implausible, as testified to by the claimant, that a group of 200 to 250 unarmed fundamentalists on leaving a mosque, would attack the protesters, estimated by the claimant to number around 500, some of whom were carrying pieces of wood, on which placards were mounted.
The claimant testified that he attended meetings and activities of the Karacaahmet Sultan Alevi Association on a weekly, or biweekly, basis. Yet, although his oral evidence was that around 100 people were taken by the police following the attack, and that he attended meetings of the association following his conditional release, he did not know whether any of the organizers of the protest from his Association were arrested or detained....
The panel was not satisfied with the claimant's explanation of the following inconsistency between his written narrative and his testimony. In his written narrative, he asserted that each time that he signed in at the police station, following his conditional release, the police frightened him greatly with their threats and warnings that people "disappeared" and were killed extra-judicially. Yet, his testimony was that it was not until November 9, 1999, when he was taken to a senior office, who threatened him and reminded him of people who have disappeared, that he decided to prevent further risk, that his only salvation was to leave Turkey.
[Underlining in original]
[14] As well, the Board found that the Applicant had not demonstrated that he had a subjective fear of persecution in Turkey because he did not leave immediately after the "precipitating event" of a threat from a senior police officer in November 1999. The Applicant did not make immediate arrangements to leave and the Board did not accept his explanation as to why he did not leave until January 2000. The Board also took a negative view of his one month delay in making his refugee claim after arriving in Canada.
APPLICANT'S SUBMISSIONS
[15] The Applicant argues that the Board failed to consider his Kurdish ethnicity in assessing the objective basis of his claim. As well, he says that the Board misconstrued or ignored relevant evidence before it because it placed much emphasis on the role of the Turkish authorities in waging a campaign against Islamic fundamentalism. The Applicant's claim was based on threats from several sources and Sunni fundamentalists were only one of his alleged persecutors.
[16] The Applicant also argues that the Board made a patently unreasonable conclusion in finding that he lacked a subjective fear of persecution since this finding was inherently contradictory to its acceptance of a clinical psychologist's opinion that the Applicant suffers from post-traumatic stress disorder as a result of his experiences of torture and detention in Turkey. The Board did not comment on this medical report, except to acknowledge its existence and state that it accepted that the Applicant suffers from post-traumatic stress disorder.
[17] The Applicant also argues that the Board's conclusions regarding one inconsistency and certain implausibility findings are not supported by the evidence before it. He says the Board gave no reason why it found his explanation for the delay in leaving Turkey, on account of his mother's pending surgery, to be implausible.
RESPONDENT'S SUBMISSIONS
[18] The Respondent argues that the Board made at least five negative credibility findings concerning important parts of the Applicant's claim. The Respondent says that the Board is entitled to make adverse credibility findings when it notes inconsistencies between the claimant's story and other evidence before it. As well, the Board can make an adverse credibility finding based only on the implausibility of an Applicant's testimony; see Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.).
[19] Here, the Board gave its reasons for finding the Applicant non-credible in clear and unmistakable terms and consequently, its findings should not be disturbed. In this regard, the Respondent relies on Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236 (F.C.A.).
[20] As well, the Respondent argues that the Board reasonably found the Applicant to be an Alevi Kurd who was not subject to persecutory treatment in Turkey. No part of the Board's analysis is "so unreasonable" as to justify intervention; see Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.). As the Board gave a number of reasons why the Applicant was not credible, no single reason was determinative.
[21] Although the Respondent conceded, upon the hearing of his application, that the Board had erred in making an implausibility finding concerning the Applicant's lack of knowledge of the arrest of any leaders after the September 10, 1999 protest, the Respondent argues that the remaining implausibility findings were open to the Board.
[22] The Respondent says that although the Board does not specifically address the objective basis of the Applicant's claim this element was considered by the Board in reaching its conclusion that the Applicant had not established his claim for Convention refugee status. In this regard, the Respondent relies upon the reference in the Board's reasons to the existence of the medical report from a clinical psychologist.
ANALYSIS
[23] It is well established that the Board is mandated to make factual findings and to assess the credibility of a claimant's account of an alleged persecutory event. The Board is entitled to assess all the evidence, including documentary evidence. As long as its conclusions are not patently unreasonable, the Court will not interfere. In this regard, I refer to Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (T.D.)(QL)
[24] In this case, the Board appears to have ignored documentary evidence submitted by the Applicant in support of his claim for Convention refugee status. I refer specifically to the letters submitted from the Alevi Association. The Board did not accept this evidence but failed to give reasons why it rejected it. In Cepeda-Guiterrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, the Court held that when a Board rejects relevant and important documentary evidence which supports a claimant's position, reasons should be given for that rejection.
[25] In this case, the evidence allegedly from the Association was relevant and directly contradicted the Board's conclusion that the Applicant did not attend meetings of this Association. In these circumstances, the Board should have given reasons for not accepting it.
[26] As for the subjective element of the Applicant's claim, the Board found that the delay in leaving Turkey undermined a subjective fear of persecution on the part of the Applicant. In my opinion, the Board also erred in this finding.
[27] The Board made a cursory reference to the psychological report submitted by the Applicant when it made the following statement:
The panel has considered Exhibit C-2(3), the report dated February 16, 2002 of the assessment of the claimant by a consulting and clinical psychologist. The panel accepts the stated clinical impression that Mr. Dink suffers from post-traumatic stress disorder and requires care from a mental health professional.
[28] The Board then went on to determine that the Applicant lacked a subjective fear of persecution, although it apparently accepted the psychological report which found that the Applicant's disorder was a result of his fear of returning to Turkey. These two findings are inconsistent and contradictory. The Board's reasons, therefore, suggest that it failed to coherently analyse the Applicant's subjective fear of persecution.
[29] In Javaid v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 233, the Court dealt with a similar situation in which a psychological report was merely mentioned by the Board. At paragraphs 7 to 9, the Court said as follows:
In the present case the panel's only observation about the psychological report was that it was considered. In the circumstances of this case I think the panel had an obligation to go further. The psychological assessment was thorough and detailed. The psychologist was clear in his conclusion that the applicants' health would deteriorate if they returned to Pakistan. The psychological report was a centre-piece of the applicants' case. The panel went to some length to explain why, in relation to conditions in Pakistan and the applicant's education and business experience, Islamabad was a reasonable IFA. It is inexplicable why it provided no clue as to why it was not persuaded by the psychological report.
As a general rule, the Court does not require that a panel address every piece of evidence or argument made before it as long as its decision is coherent and logical and based on the evidence before it. Further, the weighing of evidence is solely within the purview of the panel.
However, a panel does not immunize itself from judicial review simply because it says it considered evidence. The circumstances must be taken into account. Where the evidence is specific and important to the applicant's case, prima facie credible and persuasive, I think a panel has some obligation, even very briefly, to explain why it is not persuaded by that evidence. In this case, I am not persuaded that the panel did have regard for the psychological assessment in arriving at its conclusions.
[30] In my opinion, the Board committed a further error in the manner in which it dealt with the psychological report submitted by the Applicant. Similar to the evidence at issue in Javaid, supra, this evidence was prima facie credible and important to the Applicant's case. The Board had an obligation to address in its reasons why it was not persuaded by the report.
[31] In the result, this application for judicial review is allowed and the matter is remitted for redetermination by a differently constituted panel before the Refugee Protection Division. Counsel advised there was no question for certification.
ORDER
The application for judicial review is allowed and the matter is remitted for redetermination by a differently constituted panel before the Refugee Protection Division.
There is no question for certification.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2051-02
STYLE OF CAUSE: BEKIR ADNAN DINK v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: Wednesday March 12, 2003
REASONS FOR ORDER AND
ORDER: The Honourable Madam Justice Heneghan
DATED: March 20, 2003
APPEARANCES:
Mr. Brian Cinstosun FOR APPLICANT
Ms. Matina Karvellas FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Brian Ibrahim Cinstosun
Barrister & Solicitor
100 Adelaide Street West
Suite 406
Toronto, Ontario M5H 1S3 FOR APPLICANT
Ms. Matina Karvellas
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario M5X 1K6 FOR RESPONDENT