Date: 20030327
Docket: IMM-1656-02
Neutral citation: 2003 FCT 357
Ottawa, Ontario, this 27th day of March, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
ARIF TEKIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Arif Tekin (the "Applicant") is a citizen of Turkey. He left Turkey on March 27, 2001 and claimed Convention refugee status in Canada on March 28, 2001, basing his claim on his Kurdish ethnicity and his perceived political opinion. In a decision dated March 5, 2002, the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") denied his claim. The Applicant applies for judicial review of that decision.
Background
[2] According to the Applicant, the authorities were suspicious of him simply because of his Kurdish background. The Applicant stated that he was never politically active and that his family did not practise their Alevi religion.
[3] According to his Personal Information Form ("PIF"), the Applicant took part in a demonstration of about 200 students in the university campus in November 1998, where he claims that, along with 25 or 30 other students, he was arrested and detained for three days. At the hearing, the Applicant claimed that he was accused of being a militant or terrorist. The Applicant made no reference to this accusation in his PIF narrative.
[4] The Applicant claimed that he was taken into detention in March 2000 during a peaceful Newroz celebration of approximately one thousand participants. The Applicant states that he was detained, beaten, questioned about his political activities and released without a charge. The Applicant claimed that he was being monitored by police officers at the university; as a result of the pressure, he quit school in October 2000.
[5] The third incident, to which the Applicant referred in his oral testimony, occurred in January 2001. The Applicant stated that, when he was returning home from work in January 2001, his bus was stopped by security and the identities of the passengers were checked on police computers. The Applicant, along with one other passenger, was detained, interrogated and beaten. He was released the next day without being charged. In his PIF narrative, the Applicant stated that several other passengers were detained. As a result of this incident, the Applicant left Turkey.
The Decision of the Board
[6] The Board determined that the Applicant was not a Convention refugee based on its finding that he was not credible and that his fear was not well-founded. With respect to each of the three incidents referred to by the Applicant, the Board's response can be summarized as follows:
· In respect of the 1998 incident, the Board drew a negative inference from the Applicant's failure to mention in his PIF narrative that he was accused of terrorism and concluded that he was embellishing his testimony.
· The Board gave more weight to the United States Department of State Country Report on Human Rights Practices (the "Country Report") than to the contradictory testimony of the Applicant. As a result, the Board found, on a balance of probabilities, that the Applicant's assertions of arrest, detention and abuse in March 2000 were not credible.
· The Board found the statement in the Applicant's PIF narrative that "several passengers" were taken aside by the police in January 2001 to be clearly contrary to his oral testimony that only one other passenger was taken aside by the police.
[7] Finally, in what appears to be an alternative finding, the Board found that, even if it believed that the Applicant was detained and abused three times simply for being Kurdish, there was no evidence that the Applicant, who had no political profile and no outstanding charges, was systematically subjected to discrimination amounting to persecution.
Issues
[8] The issues raised by this application are as follows:
1. Did the Board err in law or fact and breach the principles of fairness or natural justice in determining that the Applicant was not credible in certain respects?
2. Did the Board err in law in respect of the definition of persecution?
Analysis
[9] For the reasons that follow, I am of the view that this application should not succeed.
Issue #1: Did the Board err in law or fact and breach the principles of fairness or natural justice in determining that the Applicant was not credible in certain respects?
Standard of Review
[10] A high level of deference should be accorded to the decisions of the Board made on the basis of a credibility finding, because the Board has the benefit of hearing the testimony of the witnesses. As a result, the appropriate standard of review is one of patent unreasonableness, which means that findings of credibility must be supported by the evidence and must not be made capriciously or based on erroneous findings of fact (Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.) (QL); Ahortor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 705 (T.D.) (QL); Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1).
The 1998 Incident
[11] In the Applicant's submission, he was deprived of a meaningful opportunity to make submissions and provide evidence regarding the Board's erroneous finding that he failed to mention the terrorist accusation in his PIF narrative.
[12] The Board was entitled to make adverse credibility findings on the basis of contradictions and inconsistencies in the Applicant's story and between his story and other evidence before the Board (Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.); Leung v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 908 (C.A.) (QL); Alizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11 (C.A.) (QL)). The Board was also entitled to draw an adverse inference from the Applicant's omission of an important and relevant fact from his PIF (Grinevich, v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 444 (T.D.) (QL); Basseghi v. Canada (Minister of Citizenship and Immigration) [1994] F.C.J. No. 1867 (T.D.) (QL)).
[13] In his PIF narrative, the Applicant stated that he was "questioned" about his "connection to illegal organizations" by the police in March 2000. At the hearing, the Applicant testified that the police accused him of being a militant and a terrorist. In my view, while I might have viewed the variance in language differently, the Board saw an important distinction between being questioned about a connection to illegal organizations and being accused of being a terrorist. This conclusion was not patently unreasonable. Therefore, the Board was permitted to draw an adverse inference from the Applicant's failure to mention this accusation in his PIF (Grinevich, supra). The Applicant argues that this distinction may have been "microscopic"; the Respondent acknowledged that this was likely so. Had this been the whole basis of the tribunal's finding on credibility, I might agree, but it is only one of three significant events for which the Board raised credibility concerns.
[14] In addition, the Board did not err by failing to specifically mention to the Applicant its credibility concerns related to this omission from his PIF. The Board is not obligated by the duty of fairness to put all of its concerns regarding credibility before the Applicant (Appau v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 300 (T.D.) (QL); Akinremi v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 808 (T.D.) (QL); Khorasani v. Canada (Minister of Citizenship and Immigration), 2002 FCT 936, [2002] F.C.J. No. 1219 (QL)). In this case, the Applicant was represented by counsel, the parties were on notice that credibility was an issue and the inconsistency between the Applicant's PIF narrative and his oral testimony was readily apparent. As a result, the Board was not required to put this inconsistency to the Applicant and its failure to do so was not a reviewable error (Ayodele v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1833 (T.D.) (QL); Matarage v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 460 (T.D.) (QL); Ngongo v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1627 (T.D.) (QL)).
The 2000 Incident
[15] The Applicant submits that, contrary to the findings of the Board, the documentary evidence supported his testimony regarding his treatment by the authorities and the detention of several hundred people during the March 2000 Newroz celebrations. In his view, the Board erred by not stating why it preferred the documentary evidence to that of the Applicant (Okyere-Akosah v. Minister of Employment and Immigration, [1992] F.C.J. No. 411 (C.A.) (QL); Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (C.A.) (QL); Aligolian v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 484 (T.D.) (QL); Olschewski v. Canada (Minister of Employment and Immigration), [1993] F.C.J. 1065 (T.D.) (QL)).
[16] In this case, the Board gave more weight to the documentary evidence in the Country Report than to that of the Applicant regarding the nature of the March 2000 Newroz celebrations.
[17] Contrary to the assertion of the Applicant, his testimony was inconsistent with the information contained in the Country Report. At the hearing, the Applicant testified that police started attacking the people who had gathered to celebrate and that he was arrested, along with about 30 or 40 other people. He also testified that permission had been obtained from the government for this celebration. This testimony was inconsistent with the information contained in the Country Report that there were reportedly no arrests nor excessive use of force by the police during the calm and peaceful March 2000 Newroz celebrations. The weighing of evidence is within the jurisdiction of the Board (Aguebor, supra) and it was entitled to rely on the evidence which it considered most consistent with reality (Victorov v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 900 (T.D.) (QL)).
[18] In my view, the Board did not err by failing to provide sufficient reasons for giving more weight to the documentary evidence than to that of the Applicant on the issue of the March 2000 Newroz celebrations. The Board gave more weight to the documentary evidence because it found that the Applicant was not credible and that his story contained a number of embellishments. As a result, this case can be distinguished from Olschewski, supra and Okyere-Akosah, supra, where the applicants' sworn testimony was uncontradicted and the Board erred by not providing reasons for its preference of the documentary evidence. In addition, unlike in Olschewski, supra, the Board found that the Applicant's testimony failed to reveal a well-founded fear of persecution by reason of any of the enumerated Convention grounds. Therefore, the Board provided sufficient reasons for its preference of the documentary evidence to that of the Applicant.
[19] The Applicant also submits that the Board erred by not providing him with an opportunity to address its concerns regarding the discrepancy between his testimony and the Country Report.
[20] In my view, the Board was under no obligation to confront the Applicant with its concerns on this issue. There is no general obligation upon the Board to point out specifically any and all items of documentary evidence on which it might rely (Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (C.A.) (QL)). In Victorov, supra at paragraph 10, Noël J. addressed the issue of whether the Board should have confronted the applicants with the documentary evidence:
I also reject the applicants' argument that the panel should have confronted them with the documentary evidence used to diminish their credibility. The documents used by the panel were included among those submitted by the refugee hearing officer when the hearing began and were listed in the index to the file on the state of Israel received by the applicants before the hearing. The applicants adduced their own documentary evidence. Among this evidence, the panel was entitled to rely on that which it considered most consistent with reality. This is what it did.
[21] As in Victorov, supra, the documentary evidence used to diminish the Applicant's credibility was contained in the Country Report, which was presented at the hearing and listed in the index presented as evidence at the hearing. As a result, the Board was not obligated to confront the Applicant with the evidence contained in the Country Report before using it to diminish his credibility.
The 2001 Incident
[22] The Applicant also submits that the Board erred by finding contradictions and inconsistencies between the Applicant's PIF narrative and his oral testimony regarding the number of people taken aside by the police during the January 2001 incident. In his PIF narrative, the Applicant stated that, in January 2001, he "was among several passengers who were taken aside by police and then transported to the Cankaya station." At the hearing, the Applicant testified, at page 140 of the Certified Tribunal Record, as follows:
And the other passengers and myself were asked to get off the minibus and line up on the side of the road. We'd been asked to do that by the police. And our I.D.s were checked by the computer that was in the police vehicle. The rest of the passengers were let go but another passenger and myself were asked to go with the police.
[23] The Applicant confirmed that only he and one other passenger were asked to go with the police, but gave no explanation for this discrepancy between his testimony and the evidence contained in his PIF narrative. When the Presiding Member confronted the Applicant with this discrepancy, Applicant's then counsel gave the following explanation at page 141 of the Certified Tribunal Record:
That wasn't the intention when the sentence was put in the PIF. The intention was that he was among several passengers who were taken aside and he was taken to the station. Everything is told from the first person. So the implication is not - from my perspective.
...
That's what I'm trying to explain - that. Just from my perspective as counsel who helped prepare the PIF. I can see what you mean that you can certainly allude from that that several passengers besides Mr. Tekin were taken to the police station. That was not the intent when the sentence was drafted. It was drafted from - he was taken to the police station. In essence, it was bad grammar.
[24] During his submissions to the Board, at page 174 of the Certified Tribunal Record, counsel for the Applicant again explained this inconsistency:
There was also concern expressed by Ms. Ghosh with respect to the last detention when Mr. Tekin said in his PIF that several passengers on the bus, including himself, were taken aside and then transported to the police station.
It's my position that that wasn't intended by Mr. Tekin to give the impression that more than he and one other person were taken to the station. It's an error in grammar, if you will, bad syntax, but no attempt by Mr. Tekin to be inconsistent, to be evasive or to embellish his story.
[25] The Applicant submits that the Board erred by disregarding the statement of an Officer of the Court regarding his intention in preparing the PIF narrative (Papsoyev v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 769 (T.D.) (QL)). I disagree. The Board, albeit without referring specifically to the counsel's statements, stated in the section of its decision dealing with this discrepancy, that the "claimant is an educated man, who affirmed the accuracy of his PIF before it was entered into evidence." The conclusion to be drawn from this, in my view, is that the Board did take into account the comments of the counsel, but concluded that the Applicant was quite capable of correcting the discrepancy. In rejecting counsel's explanation, the Board was not finding that Applicant's then counsel perjured himself, as in Papsoyev, supra. Rather, the Board simply found his submission regarding the Applicant's intention in drafting his PIF narrative to be non-persuasive. As a result, the Board did not commit a reviewable error.
Insufficient Reasons
[26] In the Applicant's submission, the Board did not provide sufficient reasons for its adverse credibility finding, engaged in a microscopic examination of the evidence and was overzealous to find discrepancies (Rahnema v. Canada (Solicitor General), [1993] F.C.J. 1431 (T.D.) (QL); Attakora v. Canada (Minister of Employment and Immigration), [1989] F.C.J. No. 444 (C.A.) (QL)).
[27] Negative credibility determinations are properly made as long as the tribunal gives reasons for so doing in clear and unmistakable terms (Hilo, supra). These reasons must be sufficiently clear, precise and intelligible so that the Applicant is aware of why his claim has failed (Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (C.A.) (QL); VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.); Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[28] In my opinion, the Board gave reasons, in clear and unmistakable terms, for its negative credibility findings. Those reasons included the Applicant's unrelated and circuitous responses and the fact that he had to be frequently reminded to answer the questions being asked. The Board also based its credibility finding on the fact that the Applicant was not prevented from earning an education and livelihood because of his Kurdish ethnicity; that according to the documentary evidence, simply being a Kurd did not result in persecution; that the Applicant was unable to provide more details regarding the November 1998 interrogation; that he failed to mention that the police accused him of being a terrorist or a militant in his PIF narrative; that his account of the March 2000 Newroz celebrations was contradicted by the documentary evidence; and that his evidence regarding the number of people taken aside by the police in January 2001 was inconsistent. The Board also found that, if the Applicant was indeed a suspected militant, he would not have been released by the police in November 1998, particularly without being charged.
[29] I find no indication that the Board engaged in a microscopic examination of the evidence or was overzealous to find discrepancies (Rahnema, supra; Attakora, supra). As a result, this Court should not intervene in the adverse credibility finding of the Board.
Issue #2: Did the Board err in law in respect of the definition of persecution?
[30] The Applicant submits that the Board erred by failing to consider whether the Applicant had been subjected to persecution cumulatively (Tolu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 334, [2002] F.C.J. No. 447 (QL); Retnem v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 428 (C.A.) (QL); Mirzabeglui v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 50 (C.A.) (QL); Medarovik v. Canada (Minister of Citizenship and Immigration), 2002 FCT 61, [2002] F.C.J. No. 64 (QL)).
[31] Tremblay-Lamer J. recently stated in Medarovik, supra at paragraph 12, that for discrimination to amount to persecution, the discriminatory acts "must be sufficiently serious and occur over such a long period of time that it can be said that the claimant's physical or moral integrity is threatened."
[32] As acknowledged by both the Applicant and the Respondent the comments of the Board with respect to the discrimination appear to have been posed as an alternative to the specific findings of lack of credibility. As I do not believe that the Board erred in its findings on the three specific incidents, I do not need to address this issue.
[33] The parties did not propose a question for certification. None will be certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. There is no question for certification.
"Judith A. Snider"
JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1656-02
STYLE OF CAUSE: ARIF TEKIN v. M.C.I.
PLACE OF HEARING: TORONTO
DATE OF HEARING: MARCH 20, 2003
REASONS FOR ORDER: THE HONOURABLE MADAM JUSTICE SNIDER
APPEARANCES:
MR.MICHEAL CRANE
FOR APPLICANT
MR.JOHN LONCAR
FOR RESPONDENT
SOLICITORS OF RECORD:
MICHEAL CRANE
Toronto, Ontario
FOR APPLICANT
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
FOR RESPONDENT