Ottawa, Ontario, this 7th day of December, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
(a.k.a. Habip Habiboglu)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the "Board"), dated November 30, 2004, which determined that the applicant is not a Convention refugee or a person in need of protection.
[2] The applicant seeks an order quashing the decision of the Board and remitting the matter for redetermination by a differently constituted panel.
Background
[3] Habip Habiboglu (the "applicant") is a citizen of Turkey and a Muslim. He alleged fear of persecution by the Turkish police for his participation in protests in support of freedom to wear Islamic clothes in government offices and public schools, and by the Turkish military for his refusal to perform compulsory military service.
[4] The applicant alleged in the narrative portion of his Personal Information Form ("PIF"), dated April 15, 2004, that he was detained by the police on three occasions, in November 2000, February 2001 and July 2002. He filed an amended PIF on September 22, 2004 to add a fourth incident in July 2003 in which he was arrested and beaten by police and detained in a hospital before escaping with the assistance of an agent.
[5] The applicant's claim for refugee protection was heard on October 7, 2004. The Board dismissed his claim in a decision dated November 30, 2004. This is the judicial review of that decision.
Reasons for the Board's Decision
[6] The Board found that the applicant was not credible or trustworthy. The Board reached this finding primarily based on the omission of detailed information from the applicant's PIF and port of entry ("POE") interview notes.
[7] At the hearing, the applicant testified about the details of the protests and police detentions that led to his claim for refugee protection. However, in the narrative portion of his PIF dated April 15, 2004, he had simply written that:
All together I had three detentions, the first one occurred in November 2000. The second one in February 2001 and the third one was July 2002. Each time I got detained I was physically abused and my life was threatened.
[8] In his amended PIF dated September 22, 2004, a brief statement was added regarding a July 2003 detention. Moreover, the Board noted at page 7 of its reasons that there was no mention in the POE interview notes that the applicant was involved with student demonstrations, or arrested, beaten, handcuffed, blindfolded, beaten or detained by the police. The applicant explained at the hearing that details concerning the alleged incidents were missing from his PIF and POE notes because he was not asked to provide details.
[9] The Board found that the July 2003 detention was a significant event that ought to have been included in the applicant's original PIF. When the applicant was asked why this incident was added by an amendment to the PIF, he explained that his interpreter had forgotten to include the information in the original PIF.
[10] The Board did not accept the applicant's explanations, and decided that the alleged police detentions were fabricated. The Board concluded that the applicant had "enough time to provide the details of the incidents he alleges to have encountered in Turkey, but he failed to do so, because he had not encountered such incidents in Turkey".
[11] The Board rejected the applicant's explanations in part because, according to the Board, the applicant was actually fluent in English and proceeded without an interpreter at the hearing, and he had signed the PIF declaration that all the information was true and complete. The Board stated that:
The claimant used the services of an interpreter for his PIF and narrative but at the hearing the claimant did not wish to use the services of an interpreter. The claimant stated that he was fluent in English and did not need an interpreter and he did proceed without an interpreter.
[12] The Board also noted that:
When it was pointed out to the claimant that he was fluent in English and did not need an interpreter at the hearing, why did he not read carefully his PIF narrative before he signed and declared it to be true and correct when all the contents of the PIF were interpreted to him. The claimant changed his story and stated that he wanted to provide this information to the panel at the hearing.
[13] In fact, it is apparent from the transcript that an interpreter was used throughout the hearing Further, the applicant testified that he relied on the services of a translator and did not know English.
[14] Further, the Board found that the applicant was not credible because he lacked knowledge about the alleged incidents, such as who organized the November 2000 protest or what happened to the other detainees at the demonstration, or details about the hospital in which he was detained in July 2003. The Board also found the applicant's story about his escape from the hospital with the help of an agent to be implausible.
[15] Finally, the Board found that the applicant was an ordinary Muslim, who has no deep religious beliefs, because he lacked knowledge about the Caliphs which are mentioned by Islamic preachers in Turkey. With respect to the applicant's fear of performing compulsory military service, the Board found no evidence that a practicing Muslim should not serve in the military in Turkey. The Board held that military conscription is a law of general application in Turkey and does not amount to persecution.
Issue
[16] The issue is whether the Board erred in finding that the applicant was neither a Convention refugee nor a person in need of protection.
Applicant's Submissions
[17] The applicant submitted that the Board improperly relied on omissions in the POE notes to impugn the applicant's credibility. The applicant submitted that the POE notes were consistent with the PIF narrative and testimony.
[18] The applicant submitted that the Board erred in not assessing whether conscription could be persecutory as a law of general application. The applicant submitted that there was evidence of severe penalties for avoiding conscription, and the practice of Islam during military service being prohibited and punished.
[19] The applicant submitted that the Board erred in not disclosing the source of its specialized knowledge of the Islamic preachers in Turkey mentioning the Caliphs in their prayers.
Respondent's Submissions
[20] The respondent submitted that the appropriate standard of review for the Board's finding of credibility is patent unreasonableness.
[21] The respondent submitted that the Board is entitled to make adverse credibility determinations on the basis of contradictions and inconsistencies in the claimant's story, and between the claimant's story and other evidence before the Board. The Board is also entitled to make adverse credibility findings on the basis of the implausibility of the claimant's testimony alone (see Alizadeh v. Canada(Minister of Employment and Immigration), [1993] F.C.J. No. 11 (F.C.A.) (QL)).
[22] The respondent submitted that the Board is authorized to take notice of any information or opinion that is within its specialized knowledge, such as in this case, knowledge of the Islamic religion. Thus, the applicant's contention that knowledge of the Caliphs was not disclosed is without merit.
[23] The respondent submitted that Turkish military service is a valid law of general application. Even where military service is compulsory, repeated prosecutions and incarcerations of a conscientious objector for the offence of refusing to perform military service do not constitute persecution on a Convention ground (see Ates v. Canada (Minister of Citizenship and Immigration), 2005 FCA 322, aff'g 2004 FC 1316).
Relevant Statutory Provisions
[24] Paragraph 95(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 provides that refugee protection is conferred on a person who is determined by the Board to be a Convention refugee or a person in need of protection.
| 95. (1) Refugee protection is conferred on a person when
. . .
(b) the Board determines the person to be a Convention refugee or a person in need of protection;
. . .
|
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95. (1) L'asile est la protection conférée à toute personne dès lors que, selon le cas:
. . .
b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger;
. . . |
[25] Section 96 and subsection 97(1) of the Immigration and Refugee Protection Act define "Convention refugee" and "person in need of protection" as follows:
| 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care. |
|
96. A qualité de réfugié au sens de la Convention - le réfugié - la personne qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques:
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n'a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée:
a) soit au risque, s'il y a des motifs sérieux de le croire, d'être soumise à la torture au sens de l'article premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que d'autres personnes originaires de ce pays ou qui s'y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes - sauf celles infligées au mépris des normes internationales - et inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l'incapacité du pays de fournir des soins médicaux ou de santé adéquats. |
Analysis and Decision
[26] At the hearing, the applicant stated there were four issues, namely:
1. the applicant's credibility with respect to the detentions;
2. the use of specialized knowledge by the Board;
3. military service analysis; and
4. failure to make a separate analysis of sections 96 and 97 of the Immigration and Refugee Protection Act.
[27] I propose to deal first with the use of specialized knowledge by the Board. The Board member stated as follows at pages 13 to 15 of the transcript of the hearing:
PRESIDING MEMBER: Have you, have you learned Islamic history through your parents?
CLAIMANT: Yes.
PRESIDING MEMBER: The reason I'm asking you, I have a specialized knowledge of that religion.
CLAIMANT: I understood.
PRESIDING MEMBER: In, have you, do you know in Islam how may caliphs are?
CLAIMANT: Four.
PRESIDING MEMBER: Do you know their name?
CLAIMANT: Yes. Do you want me to (inaudible) in order, I can, Hazrit Abubika, Hazrit Omar, Hazrit Osman, Hazrit Ali.
PRESIDING MEMBER: And who are the first caliph?
CLAIMANT: Hazrit Abubikar.
PRESIDING MEMBER: And who was the third?
CLAIMANT: It was, it could be Osman or Omar, I might, I may mix there. But the third one was not Ali.
PRESIDING MEMBER: And you, you're not sure who was the third.
CLAIMANT: I do not remember now who was it exactly.
PRESIDING MEMBER: Well, this is very simple, you know, every Muslim knows about this.
CLAIMANT: I know their names of course, but I am mixing between the second that the third.
PRESIDING MEMBER: Do you know where first caliph is buried?
CLAIMANT: I don't know that.
PRESIDING MEMBER: Do you know where the second caliph is buried?
CLAIMANT: No, I don't know.
PRESIDING MEMBER: Do you know where the fourth caliph is buried?
CLAIMANT: No, I don't know.
PRESIDING MEMBER: The, the first halifa, you said, was (inaudible) Abubakar.
CLAIMANT: Yes.
PRESIDING MEMBER: That's correct. The third halifa (inaudible) Osman. Do you agree? And that was not correct from your side.
COUNSEL: I think the claimant said he wasn't sure.
PRESIDING MEMBER: Pardon me?
COUNSEL: I think the claimant said he wasn't sure who the third one was, it was either Osman or Omar. From what he said.
PRESIDING MEMBER: Yeah, but that's what I'm saying, he's not correct, he doesn't know. And you do not know where the first halifa was buried.
CLAIMANT: Yes, I don't know.
PRESIDING MEMBER: He is in Medina. Do you know where Medina is?
. . .
[28] In Al-Khaliq v. Canada(Minister of Citizenship and Immigration), 2005 FC 625, the jurisprudence with respect to specialized knowledge was stated by Von Finckenstein J. at paragraphs 9 to 13:
9 The law on specialized knowledge is well established. It is, of course, based on Rule 18 of the Refugee Protection Division Rules which provides:
Refugee Protection Division Rules, SOR/2002-228
18. Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
(a) make representations on the reliability and use of the information or opinion; and
(b) give evidence in support of their representations.
10 Further, in Gonzalez v. Canada(Minister of Employment and Immigration), [1981] 2 F.C. 781 (C.A.), Urie J. described the kind of information that constitutes specialized knowledge at page 782:
The information was not the sort of information of which judicial notice could be taken in proceedings before a court nor was it of the general character well known to the Board and to the public referred to in the Maslej case. If the kind of information used in this case, which appears to be of a type which an applicant might well be in a position to contest, is to be relied upon by the Board in a hearing . . . natural justice requires that the applicant be entitled to respond to it just as he would to evidence adduced at the hearing.
11 In this case, the Board had specialized knowledge of the procedures employed by the Canadian Border Security Service to analyse Iraqi documents and disclosed it to the Applicants.
12 As the specialist was not available at the date of hearing, (which was chosen at the Applicant's request as further delay would have put his legal aid certificate in jeopardy,) the Board took three steps;
1) it made available a sanitized transcript from another hearing by the same witness on Iraqi documents;
2) it gave the Applicant an opportunity to comment on this transcript; and
3) it considered response evidence regarding specialized ink from both the Applicant and the expert witness which was submitted subsequent to the hearing.
13 All of these steps were accepted by the Applicant without objection. In sum, Rule 18, to the extent it is applicable under these circumstances, was complied with and the reasoning of Noel J. in Kabedi supra applies; a redetermination would likely result in the same decision.
[29] In the present case, the Board member merely stated that he had specialized knowledge of Islam. The Board member did not follow Rule 18 of the Refugee Protection Division Rules, SOR/2002-228, in that the Board member did not give the applicant a chance to make representations on the reliability and use of the information and to give evidence in support of his representations. The Courts have ruled that this constitutes a breach of natural justice that voids the hearing unless there are other findings which would support the Board's decision and a redetermination would result in the same outcome.
[30] In this case, the Board used its specialized knowledge as the basis of its finding that the applicant was an ordinary Muslim who had no deep religious ties with his religion, and thus was not involved in any Hijab issues or student demonstrations in Turkey. In my view, these findings permeate to all aspects of the applicant's case. I cannot conclude that a redetermination would result in the same decision.
[31] I am not persuaded by the respondent's arguments that there were other findings that would support the Board's decision, as the use of the specialized knowledge seems to relate to these findings as well.
[32] In conclusion, I am of the view that a breach of natural justice has occurred because of the Board's failure to follow its own rules and the decision must be set aside.
[33] Because of this finding, I need not deal with the other issues raised by the applicant.
[34] The application for judicial review is therefore allowed, the decision set aside and the matter referred to a different panel of the Board for redetermination.
[35] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
[36] IT IS ORDERED that the application for judicial review is allowed, the decision is set aside and the matter is referred to a different panel of the Board for redetermination.
J.F.C.
Ottawa, Ontario
December 7, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10472-04
STYLE OF CAUSE: HABIP H. H. HABIBOGLU
(a.k.a. Habip Habiboglu)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 23, 2005
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
APPEARANCES:
| Ronald Shacter
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| Gordon Lee
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SOLICITORS OF RECORD:
| Ronald Shacter Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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