Date: 19980211
Docket: IMM-1306-97
BETWEEN:
BEKTAS YUKSELIR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that expression in subsection 2(1) of the Immigration Act1. The decision of the CRDD is dated the 6th of March, 1997.
[2] The applicant is a citizen of Turkey. He is of Alevi Kurdish ethnicity. He bases his claim to Convention refugee status on an alleged well-founded fear of persecution if he is required to return to Turkey by reason of his perceived political opinion and membership in a particular social group.
[3] According to the testimony of the applicant, from an early age he was humiliated, degraded and harassed by reason of his ethnicity. His ill-treatment continued during his youth and one year of compulsory military service. His father fled Turkey to Canada and was apparently granted Convention refugee status. Similarly, a brother fled to Switzerland.
[4] From approximately 1990 onwards, according to the applicant, his situation worsened. By 1995 he found himself suspected by the authorities of harbouring and feeding guerilla members of the Kurdistan Workers Party (the "PKK"). From the other side, he found himself warned by members of the PKK to stop assisting in government construction projects. According to the applicant, he was confronted in his home by members of a "special team" and charged with harbouring and feeding guerillas. The members of the special team disbelieved his protestations to the contrary and beat him in front of his family. They conscripted him to go with them on a four day sortie into the mountains where he was required to serve as guide while the members of the special team sought to track down guerillas. The sortie was unsuccessful, the applicant was allowed to return to his home and was told, or threatened, that he would again be requisitioned as a guide until the hiding place of the PKK guerillas was found. Following these threats, the applicant went into hiding and, with the assistance of members of his family and an agent, fled to this country.
[5] The CRDD, in very brief reasons, found the applicant's evidence to be lacking in credibility and trustworthiness. While it spoke of inconsistencies between the testimony of the applicant and two other witnesses on the one hand, and the documentary evidence on the other, it failed to provide any explanations or examples to support the finding of inconsistencies.2
[6] In addition, the CRDD found certain elements of the applicant's testimony to be "highly implausible". In support of this finding, it summarized, in my view inaccurately, some of the applicant's testimony. It described the sortie into the mountains to seek out PKK guerillas as a "four-day hike". It purported to contrast the applicant's testimony with "documentary evidence" which, according to the CRDD indicated that Turkish authorities are more ruthless in their treatment of suspected PKK members and their supporters. No references or citations to the documentary evidence were provided.
[7] The CRDD also found the basis for the applicant's alleged fear of the PKK and the local gendarmes to be "highly implausible". Once again, little, if anything, in the way of analysis is provided to support this finding.
[8] Finally, on the basis of findings of inconsistencies and implausibilities, the CRDD determined the applicant to have an internal flight alternative to any major urban area in Turkey.
[9] Both counsel appearing me expressed the view that the finding of the CRDD regarding implausibilities in the applicant's testimony regarding his treatment at the hands of the "special team" to be central to the decision.
[10] In Akinlolu v. Canada (Minister of Citizenship and Immigration)3, Mr. Justice MacKay wrote:
| Where the determination of the panel ultimately turns on an assessment of credibility, an applicant for judicial review has a heavy burden, as the reviewing Court must be persuaded that the determination made by the panel is perverse or capricious or without regard to the evidence before it. |
I would go a step further, as I am convinced the Hilo decision, supra, suggests. I am satisfied that it is appropriate for a reviewing Court to interfere where it is persuaded that the analysis of the CRDD in support its assessment of credibility is so flawed or incomplete that it cannot be determined with any degree of certainty that the assessment is other than perverse or capricious or made without regard to the evidence before it. I find that to be the case here. The CRDD, at the very least, distorted the applicant's testimony before it. It ignored relevant elements of the testimony before it to such a degree as to lead the Court to conclude that it very well might not have had regard to the totality of the evidence.
[11] The foregoing is not to say that the conclusion reached by the CRDD might not have been reasonably open. It is simply to say that the analysis of the CRDD in its reasons in this matter was simply insufficient to support the conclusion as to credibility that it reached.
[12] In the result, this application for judicial review will be allowed. The decision of the CRDD will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[13] Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
February 11, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1306-97
| STYLE OF CAUSE: BEKTAS YUKSELIR |
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: FEBRUARY 10, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: GIBSON, J.
DATED: FEBRUARY 11, 1998
APPEARANCES:
Mr. Lorne Waldman
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
Mr. Lorne Waldman
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980211
Docket: IMM-1306-97
BETWEEN:
BEKTAS YUKSELIR
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
2 For the proposition that failure to state in clear, unambiguous terms the reason for casting doubt upon an applicant's credibility, see Hilo v. Minister of Employment and Immigration (1992), 15 Imm. L.R. (2d) 199 (F.C.A.)