Date: 20020402
Docket: IMM-898-01
Neutral citation: 2002 FCT 362
Ottawa, Ontario, April 2, 2002
PRESENT: THE HONOURABLE MR. JUSTICE EDMOND P. BLANCHARD
BETWEEN:
CUMA AND DERYA KIRAC
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review from a decision by the Refugee Division ("the Refugee Division") on February 1, 2001, that the applicants, citizens of Turkey, are not Convention refugees.
Statement of facts
[2] The applicants, Cuma Kirac and his wife Derya Kirac, claimed refugee status, alleging a well-founded fear of persecution because of their membership in an ethnic group, namely the Kurds in Turkey.
[3] In their Personal Information Form ("PIF") the principal applicant, 27 years old, and his wife, who is 18, set out the following facts.
(a) The principal applicant was born in the village of Alticek, not far from Elbistan in Turkey, and in 1990 was forced to leave his native village with his family and move to Izmir. He did not want to do his compulsory military service because of all the abuses to which Kurds were subject. As he did not have the funds to leave Turkey, he did his military service and he encountered discrimination against Kurdish soldiers. After military service, the applicant had part-time jobs in construction.
(b) He said the Susurluk scandal showed the government's ties to the mafia and death squads. According to the principal applicant's account, these squads were responsible for the disappearance and murder of Kurdish spokespersons and defenders. The incident prompted demonstrations by the left. The principal applicant was taking part in meetings in his district to demonstrate against the government when on August 25, 1997 the police attacked the crowd of demonstrators. The applicant said he was able to escape but was subsequently arrested with other demonstrators. He said he was held by the police until the following day, questioned and beaten.
(c) When he was released the following day the principal applicant lost his employment but continued to attend meetings [TRANSLATION] "sometimes, but in secret", as he feared being arrested again.
(d) On February 16, 1999 the applicants got married and obtained a permit to hold celebrations, Kurdish music and singing were part of the celebration and the father was questioned by the police.
(e) From the time his father opened his café in 1997 until he left the country in March 2000, the principal applicant worked in that business, located opposite a police station. The police came in every evening to check the identity of his customers and even his brother, who was beaten on one occasion, had to go to hospital for treatment.
(f) The female applicant said that she forgot her identity card twice, on February 10 and 19, 2000. She said she was taken to the police station on both occasions. She said she was very afraid as, she said, such an oversight could result in interrogation and even torture. However, she said she was not mistreated.
(g) In March 2000 the applicants left the country to join members of their family who were in Canada.
Refugee Division's decision
[4] The Refugee Division concluded that the applicants had not established in a credible and trustworthy way a valid fear of persecution for the reasons given. The Refugee Division ruled that the testimony was full of contradictions, inconsistencies and implausibilities.
Points at issue
[5] The applicants argued that the Refugee Division erred in fact and in law, and in particular raised the following points:
(a) the Refugee Division relied on irrelevant details in concluding that they lacked credibility;
(b) it ignored the reason for their fear, namely their membership in the social group of unassimilated Kurds in Turkey;
(c) the unassimilated Kurdish group in Turkey is the equivalent of the group of Kurds asserting their identity;
(d) the Refugee Division did not correctly assess the documentary evidence, minimizing the persecution suffered by Kurds in Turkey.
Analysis
[6] The principal applicant submitted that the Refugee Division considered only one document and disregarded the extensive documentary evidence filed. It was argued that the Division misinterpreted that evidence and so minimized the persecution suffered by Kurds in Turkey. The applicant maintained that the Refugee Division confused assimilated and unassimilated Kurds. The applicants offered three examples in their memorandum where the Refugee Division allegedly erred in assessing the evidence of persecution suffered by unassimilated Kurds in Turkey.
[7] Firstly, it was submitted that the Refugee Division erred in considering that the trade name of the father's café should have been in Kurdish. In the applicants' submission, Kurdish is prohibited for public use in Turkey, and this prohibition was extensively documented.
[8] It is worth reviewing what the Refugee Division said about this:
[TRANSLATION]
The father's café was targeted because it was a Kurdish café. The trade name of the business, written in Turkish, meant "Friends" according to the applicant. When asked to explain how the café had a Kurdish connotation, the applicant stated that in Kurdish "Friends" amounted to an association or group, and he added that the café was Kurdish because it was located in a Kurdish district. In any case, the applicant, who stated that he had no negative incidents to report regarding the café since his PIF was signed, contended that the business still exists, the permit is in effect and the authorities have never withdrawn it. The tribunal does not believe the applicant was persecuted because of the said café.
In my view, the applicant's argument has no merit. The Refugee Division's conclusion did not turn on the name of the café. Further, the Refugee Division did not say the café should have had a Kurdish name. It was only one aspect of the analysis which led the Refugee Division to conclude that the principal applicant was not persecuted because of the said café. In my view, this conclusion was reasonably based on the evidence in the record.
[9] The applicants submitted two other examples of errors by the Refugee Division in assessing the documentary evidence about the treatment of Kurds in Turkey. Essentially, the applicants made the argument that in its reasons the Refugee Division passed over certain aspects of the documentary evidence in silence. This evidence, the applicants submitted, supported the applicants' arguments that Kurds who assert their identity, namely unassimilated Kurds, like the applicants have reason to fear persecution because of their identity. In the applicants' submission, the Refugee Division's conclusion was wrong since it was based on a misunderstanding of the documentary evidence.
[10] I cannot accept these arguments by the applicants. In my view, the assessment of documentary evidence is within the expertise of the Refugee Division, which is in the best position to analyze it. In Canadian Union of Public Employees, Local 301 v. City of Montréal, [1997] 1 S.C.R. 793, at 844, L'Heureux-Dubé J. said:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one . . . Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable.
[11] In the case at bar the applicants did not persuade the Court that the documentary evidence, viewed reasonably, could not be a basis for the Refugee Division's findings. In my opinion, the Refugee Division made no error in its assessment of the documentary evidence that would justify this Court's intervention.
[12] In response to the allegation that the Refugee Division confused assimilated and unassimilated Kurds, the respondent submitted that it was actually the applicants who were subject to confusion by making such a distinction. The documentary evidence made no mention of such a distinction: it simply distinguished between ordinary Kurds and those who publicly and politically affirmed their identity. The respondent noted that there was no basis in the evidence for thinking that the applicants affirmed their identity in the way described in the documentary evidence.
[13] The respondent further submitted that the documentary evidence fully supported a conclusion by the Refugee Division that the applicants were in no way threatened in Turkey because of their personal characteristics.
[14] The applicants submitted that the Refugee Division erred in fact and in law in misinterpreting the documentary evidence about the persecution suffered by Kurds in Turkey. The two parties made a distinction between Kurds who affirm their identity and those who live in Turkish society more discreetly. The respondent submitted that the applicants did not present sufficient evidence for them to be included in the category of Kurds affirming their identity and being persecuted. In arriving at that determination, the Refugee Division said it considered and analyzed the documentary evidence about Kurds in Turkey.
[15] In general, the standard of review applicable to Refugee Division decisions, that of the patently unreasonable decision, except as regards points dealing with interpretation of legislation, as here, the standard which should be applied is that of the correct decision. On the interpretation of documentary evidence, it is well settled that the Refugee Division is recognized as having expertise in this area and is in the best position to interpret such evidence.
[16] In Ganiyu-Giwa v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 506 on line: QL, Wetston J. noted that the question of assessing documentary evidence was a matter for the Refugee Division. He wrote in para. 2:
In Tawfik v. M.E.I., 93-A-311, August 23, 1993, MacKay J. noted that the Board often refers to documents that contain both supporting and non-supporting references. The Board may select, as part of its role and part of its expertise, the evidence that it prefers.
[17] On this same point, namely assessment of the documentary evidence, Heald J.A. of the Federal Court of Appeal in Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946 on line: QL, wrote at p. 2:
... The fact that some of the documentary evidence was not mentioned in the Board's reasons is not fatal to it's decision. The passages from the documentary evidence that are relied on by the appellant are part of the total evidence which the Board is entitled to weigh as to reliability and cogency.
[18] Linden J.A. of the Federal Court of Appeal was entirely of the same view in Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087, on line: QL, para. 1:
...The Board is entitled to rely on documentary evidence in preference to that of the claimant. There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely....
[19] On the tribunal's expertise, L'Heureux-Dubé J. concluded in Singh v. Canada (M.C.I.), (1999), 173 F.T.R. 280, in the following paragraph:
[14] Finally, the determination of whether the applicant would face persecution upon his return to India is solely a question of fact and one which falls directly within the core expertise of the Board.
[20] She added the following on the standard of review:
[15] Taking all these factors into account, as required by the pragmatic and functional approach, and having carefully considered the decisions of the Supreme Court in Pushpanathan and Baker, I am of the opinion that the appropriate standard of review for determinations of whether or not there is more than a mere possibility that the applicant would face persecution if he were to return to India remains patent unreasonableness.
[16] However, accepting a more deferential approach does not preclude this court from intervening where there is a palpable error or where the Board's conclusion is not supported by a reasonable interpretation of the facts.
[21] In light of all the documentary evidence, I consider that the Refugee Division did not unreasonably interpret the documentary evidence in concluding that the applicants did not correspond to the profile of Kurds likely to have problems in Turkey because they publicly and politically affirmed their identity.
[22] The applicants argued that the Refugee Division drew arbitrary and unreasonable conclusions from secondary and non-essential aspects of the evidence, without taking into account that the situation described by the applicants was plausible in the circumstances established by the documentary evidence.
[23] The respondent submitted that the implausibilities and contradictions noted by the Refugee Division were all related to major facts in the applicants' claim, not to secondary aspects. The respondent further argued that the Refugee Division had in fact considered the applicants' explanation about the contradiction between the point of entry statement and the principal applicant's testimony, and had rejected it. The respondent mentioned several other incidents which led the Refugee Division to conclude that the applicants were not credible.
[24] The decisions of this Court have many times recognized that the Refugee Division has complete powers to assess the plausibility of testimony. Moreover, on questions of plausibility and credibility, so long as the inferences drawn by the tribunal are not so unreasonable as to require the Court's intervention, those conclusions are beyond the scope of judicial review (Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, at 316-317, para. 4).
[25] McDonald J.A. of the Federal Court of Appeal described the state of the law on this point in Siad v. Canada (Secretary of State), [1997] 1 F.C. 608, at para. 24:
The Tribunal is uniquely situated to assess the credibility of a refugee claimant; credibility determinations, which lie within "the heartland of the discretion of triers of fact", are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence.
[26] In the case at bar, the Refugee Division's conclusions were based on a number of implausibilities, inconsistencies and contradictions found in various aspects of the principal applicant's evidence, such as his oral testimony and his statements on entry into Canada.
[27] I consider that the Refugee Division's findings of fact were supported by the evidence before it. I also consider that the conclusions drawn by the Refugee Division as to the applicants' credibility were not unreasonable and that the Refugee Division's reasons for these conclusions were set out in a clear and comprehensive way.
Conclusion
[28] In the case at bar, the Refugee Division's conclusion was based essentially on the question of the applicants' credibility. The tribunal found that their testimony was not plausible based on the documentary evidence provided by reliable sources. In my opinion, the Refugee Division was entirely free to analyze the evidence and support its decision which in its opinion was most consistent with reality.
[29] On the question of credibility, it is not this Court's function to substitute its assessment for that of the Refugee Division. It is the Refugee Division which saw, heard and assessed the quality of the applicants' evidence. Unless there is some patently unreasonable and conclusive error in the Refugee Division's findings, the Court cannot intervene.
[30] For these reasons, this application for judicial review will be dismissed.
[31] The parties have not submitted for certification any serious question of general importance as contemplated by s. 83 of the Immigration Act, R.S.C. 1985, c. I-2. Accordingly, no serious question of general importance needs to be certified.
ORDER
THE COURT ORDERS THAT:
1. The application for judicial review is dismissed.
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Edmond P. Blanchard
Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-898-01
STYLE OF CAUSE: CUMA AND DERYA KIRAC
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: NOVEMBER 8, 2001
REASONS FOR ORDER AND ORDER BY: BLANCHARD J.
DATED: APRIL 2, 2002
APPEARANCES:
MIMI BEAUDRY FOR THE APPLICANTS
MARIE-NICOLE MOREAU FOR THE RESPONDENT
SOLICITORS OF RECORD:
MIMI BEAUDRY FOR THE APPLICANTS
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA