Date: 20050330
Docket: IMM-1929-04
Citation: 2005 FC 423
Ottawa, Ontario, this 30th day of March, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
UMUT CIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Umut Cin fled Turkey in 2000 when he was just 18 years old. He made a refugee claim in Canada, alleging that he had been detained and beaten by police because of his Kurdish ethnicity and his Alevi religion. He also claims that the police targeted him because they were interested in finding his uncle who had evaded military service and obtained refugee status in Canada.
[2] A panel of the Immigration and Refugee Board found elements of Mr. Cin's account of events implausible. Mr. Cin argues that the Board made serious errors in its assessment of the evidence and asks me to order a new hearing. I agree with Mr. Cin that the Board erred and, accordingly, I must allow this application for judicial review.
I. Issues
1. Did the Board err in its finding that Mr. Cin had not been detained and beaten in 1998?
2. Did the Board err when it discounted Mr. Cin's testimony about his uncle's evasion of military service?
II. Analysis
1. Did the Board err in its finding that Mr. Cin had not been detained and beaten in 1998?
[3] Mr. Cin says that he attended a Newroz celebration in March of 1998, after which police detained and arrested him along with 15 others. He claims that he was beaten for 3 days. The Board found it implausible that Mr. Cin would not have fled Turkey immediately after he was released from detention. It concluded that Mr. Cin had never been arrested or assaulted.
[4] The Board is entitled to make findings of fact and its conclusions are subject to considerable judicial deference. It is also entitled to find that a claimant's story is implausible, so long as its conclusion is supported by the evidence. In some cases, the Court is in an equally good position to assess the plausibility of the version of events put before the Board. Divsalar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. 875 (T.D.) (QL), Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131 (T.D.) (QL).
[5] Mr. Cin said that he did not want to leave Turkey after he was detained and beaten because he was only 16 at the time and wanted to finish high school. His explanation does not appear to be so unlikely as to permit the Board to conclude that his testimony was completely untruthful. At the time of his release, there was no reason to believe that Mr. Cin would be subjected to additional mistreatment if he refrained from further political and religious activities, which he did. One could understand his mother's wish that he remain in Turkey until he was finished school and join his uncle in Canada thereafter.
2. Did the Board err when it discounted Mr. Cin's testimony about his uncle's evasion of military service?
[6] Mr. Cin testified that his uncle had visited him in Turkey in 1997. He travelled to Turkey from Canada and back again without any difficulty. Again, the Board concluded that Mr. Cin's evidence was highly improbable.
[7] The Board stated that "[a]ll military evaders are registered and would be discovered at border security checks". Accordingly, the Board doubted Mr. Cin's evidence that the authorities arrested and questioned him in 1999 because they were looking for his uncle. If they were really interested in the uncle, they could have arrested him in 1997.
[8] However, there was no evidence before the Board that Mr. Cin's uncle was sought in 1997. He could well have travelled freely to and from Turkey if his reporting date for military service had not yet arrived. There was simply no basis for discounting Mr. Cin's testimony on that point, yet the Board found that his evidence was "impugned by his uncle's ability to enter and leave Turkey without any attention from the authorities".
[9] On both of the above issues, I find that the Board's conclusions are out of keeping with the evidence before it. I must, therefore, allow this application for judicial review and order a new hearing. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed and a new hearing is ordered;
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1929-04
STYLE OF CAUSE: UMUT CIN v. MCI
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: January 26, 2005
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: March 30, 2005
APPEARANCES BY:
Mr. Alp Debreli FOR THE APPLICANT
Mr. Greg George FOR THE RESPONDENT
SOLICITORS OF RECORD:
ALP DEBRELI FOR THE APPLICANT
Toronto, ON
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, ON