Toronto, Ontario, November 3, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Songul Basak was 14 years old when she came to Canadafrom Turkey in July of 2002. Nearly two years later, she sought refugee protection, claiming a well-founded fear of persecution at the hands of Sunni fanatics because of her Alevi faith. The Refugee Protection Division of the Immigration and Refugee Board rejected Ms. Basak's claim, finding that what Ms. Basak allegedly experienced in Turkey did not amount to persecution. Moreover, the Board found that her evidence was exaggerated, and that the delay of nearly two years in filing the claim undermined her claim to a subjective fear of persecution. The Board concluded that Ms. Basak's refugee claim amounted to nothing more than the last step in a series of attempts to remain in this country.
[2] Ms. Basak argues that the Board committed a number of errors in its assessment of her claim, including failing to inquire into the suitability of the family member proposed as her Designated Representative, given the fact that Ms. Basak was mistreated and exploited by her family in Canada. Moreover, Ms. Basak says that the Board wrongly concluded that the delay by others in filing her refugee claim suggested a lack of subjective fear on her part. Finally, Ms. Basak says that the Board erred in its assessment of her credibility, and in its treatment of the psychological evidence.
[3] After carefully considering this matter, I have concluded that the Board did err in its treatment of Ms. Basak's claim, and that these errors are sufficiently serious as to warrant the decision being set aside.
Background
[4] Ms. Basak described a number of incidents that she says she experienced in Turkey, where she was attacked and beaten by Sunni students and teachers, because of her Alevi faith. On one occasion, Ms. Basak says that she was beaten into unconsciousness. Another time, a student threatened to kill her entire family. These incidents were brought to the attention of the Headmaster of the school - himself a Sunni - and, on several occasions, to the police, but to no avail.
[5] Ms. Basak says that her father was also arrested and beaten by the police, and that an Alevi community picnic was attacked by Sunni men wielding sticks and stones. Moreover, she says, her place of worship was raided by police.
[6] As a result of these incidents, Ms. Basak says that her father decided to send her to Canada. Ms. Basak came to Canada in 2002 on a visitor's visa, which was renewed from time to time. Upon her arrival in Canada, Ms. Basak went to live with her sister and her sister's family. Although Ms. Basak testified that she had planned to go to school in Canada, she ended up spending the next year or so caring for her sister's children.
[7] After Ms. Basak's sister told her that Ms. Basak could no longer live with her, she went to live with her brother-in-law's sister's daughter. She would have been approximately 15 years old at this point, and she was still not registered in school. In the Spring of 2003, Ms. Basak was advised that her visitor's visa would not be renewed, and a departure order was issued. At this point, her uncle-in-law advised her to submit a refugee claim. Ms. Basak says that she had previously understood that she could not file a refugee claim before she was 18.
[8] The uncle-in-law was appointed Ms. Basak's Designated Representative at her refugee hearing. (It should be noted that there is some question as to how this individual was related to Ms. Basak, as one document describes him as her brother-in-law).
Analysis
[9] Ms. Basak asserts that the Board erred in a number of respects in relation to its assessment of her claim. Each of these alleged errors will be addressed in turn.
Delay in Claiming
[10] The first reason that the Board gave for rejecting Ms. Basak's claim was that the delay of almost two years in seeking refugee protection caused the Board to draw a negative inference with respect to Ms. Basak's subjective fear of persecution.
[11] Ms. Basak was 14 years old when she came to Canada. She spoke little or no English, had a grade eight education, and was clearly entirely dependent on those around her for protection. She could thus hardly have been expected to bring a refugee claim on her own. Indeed, the Board found that the delay in filing her claim for protection was due to a lack of diligence on the part of Ms. Basak's sister and her uncle-in-law.
[12] In such circumstances, it was, in my view, patently unreasonable for the Board to conclude that a delay on the part of others in advancing Ms. Basak's refugee claim was indicative of a lack of subjective fear of persecution on her part.
Inconsistencies and Exaggerations in Ms. Basak's Evidence
[13] While there were undoubtedly problems with Ms. Basak's evidence, it appears that a number of the Board's findings as to alleged inconsistencies in Ms. Basak's testimony were problematic. The respondent concedes that the Board erred in attributing to Ms. Basak the claim that four letters of support from friends in Turkey were received in separate envelopes, when it was apparent that the letters had been sent by fax. Ms. Basak said no such thing in her evidence.
[14] The Board also found Ms. Basak's testimony with respect to the frequency of her visits to her place of worship to be inconsistent. As is confirmed by the affidavit of the interpreter, it appears that the initial confusion resulted from Ms. Basak's use of a Turkish idiom, which, when interpreted literally, would suggest an inconsistency in her evidence, but which did not in fact have an inconsistent meaning.
[15] When the apparent inconsistency was put to Ms. Basak, she did not understand the question. Rather than rephrase the question, the RPO moved on to another area, leaving the question unanswered, and Ms. Basak without the opportunity to clarify her answer. The Board then went on to make a negative finding against Ms. Basak in this regard.
[16] I am similarly not persuaded that the Board's statement that Ms. Basak exaggerated her claim was fair. Ms. Basak testified as to the beatings and other attacks that she experienced, describing them as 'torture'. The fact that the Board may not agree with Ms. Basak's definition of torture does not mean that her description of her experiences was an exaggeration.
The Psychologist's Report
[17] Ms. Basak filed the report of a psychologist at the hearing regarding her psychological state, in which it was reported that Ms. Basak suffered from post-traumatic stress disorder. The Board chose to give limited weight to this report, as Ms. Basak had evidently stated in her interview for an extension for her visitor's visa that she was happy living with her relatives in Canada, and that she socialized with people at the Alevi Cultural Centre in Toronto.
[18] However, Ms. Basak also testified that she became upset and had trouble sleeping when she thought about what had happened to her in Turkey.
[19] While the weight to be attributed to evidence is ordinarily a matter for the Board, it was, in my view, patently unreasonable for the Board to have concluded that because Ms. Basak was reportedly happy living in Canada, that she therefore could not be suffering psychological after-effects from her experiences in Turkey.
Designated Representative
[20] As I am satisfied that the other errors on the part of the Board described in this decision are sufficiently material as to render the Board's decision unsound, it is not necessary to decide whether the circumstances of this case were such as to impose a duty on the Board to inquire into the suitability of the proposed Designated Representative.
[21] That said, considerable care should be taken at the rehearing of Ms. Basak's refugee claim to ensure that any individual appointed to represent Ms. Basak truly has the best interests of this child at heart.
Conclusion
[22] For these reasons, the application for judicial review is allowed.
Certification
[23] Counsel for Ms. Basak proposed a question for certification dealing with the extent of the Board's obligation to inquire into the suitability of a proposed Designated Representative. Given my reasons, this question is not dispositive of this case, and I decline to certify it.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1017-05
STYLE OF CAUSE: SONGUL BASAK
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 3, 2005
APPEARANCES:
Michael A. Romoff FOR THE APPLICANT
Sally Thomas FOR THE RESPONDENT
SOLICITORS OF RECORD:
MAKEPEACE ROMOFF
Toronto, Ontario FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Ontario
Toronto, Ontario FOR THE RESPONDENT