Date: 20050118
OTTAWA, Ontario, January 18th, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
BORA YONTEM, AYLIN YONTEM,
BARTU YONTEM, ORKUN YONTEM
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated January 29, 2004 in which the applicants were found not to be Convention refugees or persons in need of protection.
FACTS
[2] The principal applicant, Bora Yontem, ("applicant") is a 36-old Turkish national who claims a well-founded fear of persecution on account of his Alevi faith and his leftist political opinion. The applicant's wife and two children base their application for refugee status on his claim.
[3] The applicant alleges that as Alevis in a predominately Sunni Muslim community, he and his family faced threats and harassment from members of extremist Sunni organizations. He states that extremists attempted to extort money from him because he operated a successful textile shop, that they threatened his life and broke into and damaged his textile shop. He reported the incidents to the police, but they refused to assist him.
[4] The applicant also claims that he was routinely detained and beaten by Turkish authorities because of his leftist political affiliations including his support of the labour party, his participation in a local Alevi cultural association and his involvement with the humane society. In particular, he states that his home was searched and he was detained and beaten in May 1999 after marching in a parade with the labour party contingent. He was again detained by the authorities in March 2000 and questioned about the activities of a local socialist organization. In November 2001, the applicant alleges that he was arrested after several Sunni hunters, who were opposed to his involvement with the humane society, informed the police that he was working for illegal organizations. He was detained for 24 hours by the authorities during which time he was interrogated about his leftist affiliations, beaten and tortured.
[5] Fearing further police harassment, the applicant and his family moved to Izmir, Turkey in January 2002. They departed for Canada on February 6, 2002 and made an immediate claim for refugee status on arrival.
Statutory declaration of Port of Entry Immigration Officer dated February 10, 2002
[6] The immigration officer who conducted the interview with the principal applicant in Fort Erie, Ontario, at the time the principal applicant entered Canada for the first time, deposed that the applicant denied being persecuted in Turkey due to his political beliefs, political opinions or memberships in any social organizations or groups. The declaration states that the applicant answered:
No, I was never physically harmed. It is how they look at you and act around you, it is enough to make you afraid ...
Personal Information Form completed by the Applicant on April 9, 2002 (i.e. two months after Port of Entry interview)
[7] The applicant states in paragraph 27 of his Personal Information Form ("PIF") that he was tortured, hung from the ceiling and beaten all over his body. In paragraph 30, the applicant states:
I was disturbed to see that the notes from my port of entry interview make no mention of the problems I experienced in Turkey due to my political activities and beliefs ... I remember telling the interpreter that I was a Leftist and that I had experienced problems with the Turkish authorities -- up to and including torture -- because of this. My feeling is that much of what I said in my interview did not make it into the port of entry notes ... For example, I told the interpreter about my membership in both the Alevie Association and the Humane Society -- and even handed over my Humane Society membership card -- but this is not mentioned anywhere in the port of entry notes either.
Transcript of the hearing before the Refugee Board on December 2, 2003
[8] At page 30 of the transcript, the applicant explained the discrepancy between the port of entry notes and the PIF as follows:
At the port of entry the female officer was asking certain questions and she was asking very long questions and when they were interpreted to me each time I was saying that I was Leftist (sic) or I had Leftist point of view and I was an Alevi ... that (sic) I was oppressed and I had received death threats. I had indicated that each time. In spite of the fact that I have mentioned these things the interpreter (sic) to the female officer was discounting or shortening the responses, was keeping the answers very brief. The officer was posing very long questions and I was giving a very long answer. I was explaining but the female interpreter was finishing it up by using very brief words. We became aware of it afterwards. Some of the statements that I made were not there and we have objected. The statement, the testimony that I am giving now are correct.
THE DECISION
[9] The Board denied the applicant's claim primarily on the basis of credibility. It found that there were critical inconsistencies between the information provided by the applicant at the port of entry and the information provided in his Personal Information Form ("PIF") and at the hearing. In particular, the Board noted that during the port of entry interview the applicant stated that he did not believe he was persecuted on account of his political opinion or his membership in any social organizations. He also stated that he had not been physically harmed by anyone or had his life threatened. By contrast, the applicant testified at the hearing that the Turkish authorities had detained and tortured him because of his support and involvement with perceived leftist organizations such as the labour party, the Alevi cultural association and the humane society. He also testified that extremists had threatened his life because he would not pay extortion money and that Sunni hunters had threatened him at gunpoint. The Board concluded that the inconsistencies between the port of entry notes and the applicant's testimony were of such a magnitude that they seriously undermined his credibility and rendered his evidence untrustworthy.
[10] The Reasons for Decision of the Board dated January 29, 2004 state at page 3:
The claimant blamed the omissions from the Port of Entry notes on interpreter problems. He testified that he noticed that he gave a long answer and the interpreter used brief words when relating what he said to the immigration officer in English. He did not complain to anyone about the interpreter at the time. When asked about this, he testified that he only really became aware of it after. He outright denied that he was asked if he was physically harmed by anyone. However, the panel prefers the immigration officer's evidence, which in the notes was as follows: that the claimant was asked if he was ever physically harmed and he responded "No I was never physically harmed. It is how they look at you and act around you, (sic) it is enough to make you afraid (sic) if I would ask them why they look at me like that or look at them the same way I don't know what would happen to me (sic). I cannot send my oldest son to school on the school bus. I have to drive him every day. The claimant then continued on relating his efforts on behalf of his son.
[...]
If the claimant had said "yes" about physical harm, I do not believe the immigration officer would write "no". If the incidents occurred including torture and were described by the claimant, it is not plausible that the immigration officer would not write them in the POE notes. According to the notes at the end of the interview, the claimant was asked, "Is there anything you would like to add?" he then spoke of not being able to study in his country and that he wants his children to grow up in freedom in a free country.
[11] At page 6 the Board Decision states:
The panel is aware of the need to be cautious in drawing negative inferences from the difference between the male claimant's responses to questions as recorded in the Immigration notes and his testimony at the hearing. However, in this case, the contrast is so great, it would be impossible not (sic) treat the differences raising serious credibility problems. The panel did not find the male claimant's explanation of the difference persuasive.
[12] Apart from the issue of credibility, the Board found that the documentary evidence did not support the well-foundedness of the applicant's fear of persecution. It noted that while persons of Alevi faith do attract discrimination, anti-Alevi prejudice is on the decline in Turkey. Moreover, Turkish Alevis (such as the applicant) encounter far fewer difficulties than Kurdish Alevis.
ISSUE
[13] Did the Board err in relying on the inconsistencies between the port of entry notes and the information provided by the applicant in his PIF and at the hearing to impugn his credibility?
ANALYSIS
[14] The applicant submits that the Board should not have drawn an adverse inference from the port of entry notes because he provided a reasonable and timely explanation for the inconsistencies arising from the notes. The applicant's explanation, as outlined in his PIF and oral testimony, is that he informed the immigration officer of the problems he had experienced due to his political beliefs but that this information was not adequately translated.
[15] In its reasons, the Board considered the explanation provided by the applicant but determined that the port of entry notes were nonetheless reliable. In my view, the Board did not commit a reviewable error in coming to this conclusion. It is well-established that a Board may draw a negative inference from inconsistencies between statements made at the port of entry and the content of subsequent testimony. Mongu v. Canada (Solicitor General), [1994] F.C.J. o. 1526. In the present case, the Board acted appropriately by notifying the applicant that the port of entry notes were an issue and providing him with a reasonable opportunity to explain the inconsistency before it drew an adverse inference. The Board also provided cogent reasons for rejecting the applicant's explanation. It noted that the applicant had been asked whether he understood the interpreter and that he had responded affirmatively; it also noted that some of the responses recorded by the immigration officer were very detailed even though the applicant testified that he believed the interpreter was shortening his responses. Unlike the situation in Neto v. Canada (Minister of Immigration and Citizenship), [2004] F.C.J. No. 682 where the translation was clearly nonsensical, there was nothing in the applicant's port of entry notes to suggest to the Board that the translation was faulty. In fact, many of the details recorded in the notes appear to be accurate since they were repeated and relied on by the applicant during the hearing. Given these circumstances, it was reasonably open to the Board to reject the applicant's explanation regarding the inconsistencies arising from the port of entry notes.
[16] Moreover, if the applicant had wanted to challenge the accuracy of the port of entry notes, he could have subpoenaed both the immigration officer and the interpreter to testify at the hearing. In this regard, see Lin v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1290 and Abdoli v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 383 where the Court concluded that it was not a breach of natural justice for the Board to rely on port of entry notes (or other extrinsic evidence) if the applicant was able to subpoena the author or interpreter of the notes, but failed to do so.
[17] The applicant introduced the affidavit of another interpreter fluent in the Turkish and English languages who said that the interpreter of the port of entry notes is known for having made mistakes at other interviews at the port of entry and this interpreter is no longer being used by the immigration authorities due to concerns about her incompetence. This evidence was not before the Refugee Board, only filed for the purpose of this Court hearing. I must agree with counsel for the respondent that the magnitude of the discrepancy between the interpreted version of the port of entry notes and the applicant's evidence is "beyond incompetence". In other words, the discrepancy cannot be explained by an incompetent interpreter. It could only be explained by either the interpreter or the immigration officer intending to delete, distort, or misrepresent the applicant's evidence. The story set out in the port of entry notes and the story which the applicant sets out in his personal information form are so divergent that the inconsistency cannot be attributed to incompetent translation.
[18] Having said that, in the interests of justice, I am of the view, that the applicant ought be given an opportunity to subpoena the author of the port of entry notes and the interpreter. It is established law that the onus is not on the Refugee Board to make those persons available for examination at the hearing. The onus is on the applicant if the applicant wishes to discredit the port of entry notes. The applicant failed to exercise that power. The failure to exercise that power cannot be attributed to a breach of natural justice or procedural unfairness by the Board. I am only prepared to allow the applicant this opportunity in a limited circumstance, namely at a re-opening of the hearing before the same Board member, Ms. Judy Ireland, who heard the case on December 2, 2003. The new hearing will be based on the transcript and the existing certified tribunal record. The hearing will only be reopened to allow the applicant to call additional evidence to explain the discrepancy between the port of entry notes, the PIF and his vive voca evidence. The Board member will then be required to reconsider her decision of whether the discrepancy and omissions from the port of entry notes are reasonably explained.
[19] I am making this unusual order because the applicant has adamantly proclaimed from the outset that the POE notes are absolutely incorrect, and because the applicant erroneously thought that correcting the errors on his PIF, one year before the Board hearing, would satisfy his onus to explain the discrepancy.
PROPOSED CERTIFIED QUESTIONS
[20] Counsel for the applicants proposed two questions for certification:
1. Is it a breach of natural justice for immigration authorities to use an incompetent interpreter to translate the POE notes?;
2. In circumstances where the applicant puts the Board on notice that he repudiates the accuracy of the POE notes, is the onus on the Board or the applicant to call the interpreter and/or the POE officer to clarify the issue?
[21] The respondent opposes the certification of these questions, and submits that this Court has established in Lin, supra at paragraph 11 that:
The onus was not on the CRDD to make those persons available for examination at the hearing.
[22] The Court is of the view that the first question is not determinative of this case. In this case, it has to be established first that the applicant did not have a competent interpreter. At this point, that is the allegation of the applicant which the Board has rejected. It is not appropriate for the Court to certify a question such as this if it will not be determinative of this case.
[23] With respect to the second question, the Court agrees with Justice Gibson in Lin, supra that the onus is on the applicant, not the Board, to call the interpreter and/or the POE officer if the applicant puts the Board on notice that he repudiates the accuracy of the POE notes. This is not a new question and it is not appropriate for the Court to certify a question which has already been answered and is not in doubt.
[24] For these reasons, the Court will not certify either of these questions.
ORDER
THE COURT ORDERS THAT:
1. this application for judicial review is allowed in part;
2. the Board Member, Ms. Judy Ireland, who conducted this hearing and rendered this decision, will reopen the hearing within 60 days, allow the applicants to subpoena the port of entry officer and the interpreter, hear this evidence and additional submissions from the parties, and then reconsider whether this evidence explains the discrepancies between the port of entry notes and the evidence at the hearing;
3. the Board Member shall rely upon the transcript of the December 2, 2003 hearing and the existing certified tribunal record in rendering a decision following the reopening of the hearing; and,
4. if the applicant does not subpoena one or both of these witnesses for any reason, then this application for judicial review is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1834-04
STYLE OF CAUSE: BORA YONTEM ET AL
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JANUARY 12, 2005
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: TUESDAY, JANUARY 18, 2005
APPEARANCES: Mr. Lorne Waldman
FOR APPLICANTS
Mr. Michael Butterfield
FOR RESPONDENT
SOLICITORS OF RECORD: Waldman and Associates
Toronto, Ontario
FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20050118
Docket: IMM-1834-04
BETWEEN:
BORA YONTEM ET AL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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