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THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
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[1] This is an application for judicial review pursuant to s. 82.1(1) of the Immigration Act, R.S.C. 1985 Chap. I-2 of a decision (V95-02234) of the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board dated May 28, 1997 in which the applicant was determined not to be a Convention refugee.
[2] The applicant is of Kurdish background but is a citizen of Turkey. He bases his claim to Convention refugee status on his fear of persecution based on his ethnic origin and political opinion. His natal village is Chimenlik.
[3] In this personal information form, the applicant outlines the basis for his claim. All of the applicant's family members are sympathisers of the Kurdish Workers' Party (PKK) who provided food and shelter for PKK members when they came down from the mountains.
[4] In July 1988, while the applicant was in Chimenlik, having returned from Izmir, the applicant was detained by the military where he alleges he was beaten and asked questions about his uncle's involvement with the PKK. At that time, the applicant had not yet joined the PKK nor had his uncle. The applicant claims to have been taken to a cell where he saw his uncle unclothed hanging chained to the wall. The applicant states that the military threatened him with the same fate should he not reveal his knowledge regarding the PKK. The applicant was also told to reveal his uncle's involvement with this group. He was then taken to a room where he was interrogated, beaten and tortured. The applicant was told to write down his life-story, which he did. The following day, the applicant was released. One week later, his uncle was released from prison.
[5] A few months later, the military arrested two the applicant's uncles for their suspected involvement with the PKK. Ten days after the arrest, a number of Turkish troops came to the village in which the applicant lived to search for weapons in order to implicate the residents with the PKK. The applicant was involved in an altercation with a Turkish soldier in which the applicant suffered a wound to his hand and his arm. As a result, he was hospitalized for three days.
[6] In September 1988, the applicant returned to Izmir. While in Izmir, the Turkish military sent a call-up notice to the applicant's village, telling him that he had to report for military duty. The applicant's cousin sent the letter to him in Izmir which was received by the applicant three months later. The applicant feared returning to his village as he feared being arrested by the military.
[7] After approximately one year, the military began to look for the applicant in Izmir. After the initial visit by the military to the applicant's home, the applicant stayed with friends and relatives for a period of six months. After six months, he began occasionally to sleep at home. Three months later, the military police visited the applicant's home looking for the applicant. The military questioned the applicant's mother about his involvement with the PKK, and the applicant's mother denied all involvement with the group.
[8] Members of the applicant's family are sympathizers of the PKK. The applicant's sister was the head of the Patriotic Women's Society in Izmir, an organization which supports the PKK. This organization was dissolved in 1991 by the Turkish government. She is currently residing in Istanbul and continues to support the notion of an independent Kurdish state.
[9] Two of the applicant's uncles have been killed by the Turkish army; one in 1990 and the other in 1991.
[10] His cousin is currently imprisoned, awaiting trial as a suspected member of the PKK. Another of the applicant's cousins was detained for 10 years awaiting trial for his involvement with the PKK. He was released without trial.
[11] About eight months before the applicant left for Canada, he assisted the PKK by informing people about the activities of the PKK and about Kurdish history. He distributed leaflets for the PKK, urging people to join the organization.
[12] During that time the applicant was staying at a house with friends who supported and promoted the PKK. One day, while the applicant was away from the house, the police raided the house and arrested the entire group. The applicant's cousin phoned the applicant to tell him not to return to the house.
[13] After this incident, the applicant decided to leave Turkey. Within fifteen days, the applicant went to Istanbul where he stayed in hiding with Kurdish families for six months. Meanwhile, the police raided his brother's dental lab and arrested the applicant's brothers. They were detained for one or two days during which time they were interrogated about the applicant's whereabouts.
[14] On June 30, 1995, the applicant left Turkey and arrived in Canada on July 2, 1995. He made a refugee claim that same day.
[15] The applicant alleges that should he return to Turkey, he would face conscription by the Turkish army. He refuses to participate in the killing of Kurds and fears that he will be killed by fellow soldiers who may perceive him as a PKK member or supporter.
[16] Based on the applicant's oral evidence and the evidence provided in his personal information form, the CRDD concluded that the applicant was not credible. At page 10 of the applicant's record the CRDD is recorded:
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We do not find the claimant to be a credible witness. His testimony contains numerous inconsistencies and some of them are as follows. |
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1) The claimant testified that prior to his July 1988 detention, neither he nor his uncle Suleiman were involved in any PKK activities. He was then asked if any family members ever came into contact with PKK for the same period of time. The claimant replied that he only saw members of the PKK on one occasion in Chimenlik when they came down from the mountains to the village to buy food. On that occasion he had a ten minute conversation with these PKK members during which he joked around with them to make them feel good. |
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The following passage from the claimant's Personal Information Form (PIF) was read to the claimant: |
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All our family were PKK sympathizers. At that time the PKK were coming to our house in the village. They would come down from the mountains and we would provide them always with food and shelter. I did not tell that to the military police because they would never released me and my uncle if I did. |
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In his viva voce evidence, the claimant did not admit to any involvement with the PKK, except for a cursory encounter on one occasion. He also gave no viva voce evidence to suggest any kind of involvement between his family and the PKK. However, his PIF statements suggest a regular involvement between his family and the PKK. The claimant was asked for clarification for the above inconsistency and the only reply given by him was that "that is the reason why I asked you what you mean by contact". I cannot accept the claimant's explanation. When he was asked if his family members had any contact with the PKK, he never questioned the meaning of the word "contact" and his reply does not suggest any misunderstanding of this word. |
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2) During his July 1988 detention, the claimant testified that he was moved to a third room before his release. He further testified that he was just kept in this room and he did not do anything. The claimant was asked regarding specific activities he was engaged in during his detention in this room. He replied that he slept, sat, and thought about what would happen to him the next day and how he would be treated. He added that this small room had wooden walls and it was in bad conditions [sic]. |
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The following passage from the claimant's PIF was read to the claimant: |
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Finally they took me into another office and a third man told me to write my life story, who I am and where I am from and so on. I did this. They left me in jail in custody until the evening of the next day. |
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It was pointed out to the claimant that in his PIF, he stated that he had to write down his life story in this third room. The claimant's only reply was that yes, they did tell him to do this. I do not find the claimant's explanation for this omission to be satisfactory. No other evidence was adduced to explain the above omission. |
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3) The claimant was asked how long after the July 1988 incident were his two uncles arrested as a result of a set up. He replied that it was ten to fifteen days later. It was pointed out to the claimant that in his PIF, he stated it was a few months after the July 1988 incident that the military had come and taken both of his uncles. The claimant replied that when he came to Canada, he did not remember what had happened clearly and that he became clearer in his thoughts when he was completing his PIF. Furthermore during his past two years in Canada, he has been speaking English, therefore he should not be expected to remember dates. Finally, he testified that he was not sure about the date, it could be one month or two months. I cannot accept the claimant's explanation. When he gave his viva voce reply, he never mentioned that he did not remember exactly or that he was unsure. Furthermore, he did not specify what kind of problems he has encountered in Canada to possibly cause him to forget the time frame of crucial events of his refugee claim. Finally, I cannot accept the claimant's proposition that speaking English would cause him to forget the time frame of crucial events of his refugee claim. Finally, I cannot accept the claimant's proposition that speaking English would cause him to forget the same time frame. |
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[On the other hand, one rarely thinks or speaks of the Islamic calendar, in English] |
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6) The claimant testified that around June of 1988, he left Izmir for Chimenlik. He was asked how long he had remained in Chimenlik before returning to Izmir. He replied that it was around six months and that he could not remember exactly. It was pointed out to the claimant that he had started school in Izmir in September of 1988. The claimant then replied that he remembered that it was more than three months he remained in Chimenlik. It was then pointed out to the claimant that in his reply to question 22 of his PIF, he indicated a residency at Chimenlik from August of 1987 to September of 1988 for a total of thirteen months. The claimant was asked if he had missed the school year somewhere. He replied that he had missed some school months. I do not find the claimant's reply to be satisfactory in explaining the above in consistency. No other explanation was adduced. |
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7) The claimant testified that after the arrest of his colleagues from their communal house, the police and the military also arrested his two brothers from their dental lab. He further testified that the reason for his brothers' arrest was the authorities' intention to question them regarding his whereabouts. The claimant was asked on two occasions why he had omitted the above incident in his PIF. First, he replied that if he wanted to give more details, he had much more to tell. Later, he replied that there was no particular reason and perhaps he did not want to make his PIF too long. |
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I find the claimant's first answer to be evasive. Since it does not address the question which was posed to him, I cannot accept it. I also cannot accept the claimant's explanation that he had omitted mentioning the above incident due to the length of his PIF. Question 37A of the claimant's PIF specifically asks the claimant to set out "all the significant incidents" which caused him to seek refuge outside of his country of origin and to make reference to any measure taken against his family members. Arrest, detention, interrogation and mistreatment of the claimant's brothers are definitely measures taken against members of the claimant's family. And when these measures were taken on account of the claimant, such incident is of even greater significance to the claimant's claim. |
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Based on all of the above-mentioned inconsistencies, I do not find the claimant to be a credible witness and I have not accepted as credible or trustworthy any of the material evidence adduced in support of his claim. The remaining documentary evidence is insufficient in supporting the claimant's allegation of a well-founded fear of persecution for a Convention reason. |
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[17] Based on these reasons, the applicant seeks judicial review. In oral and in written argument, the applicant raised a number of grounds for review:
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1. The CRDD erred in rejecting all of the documentary evidence submitted by the claimant because they found him to be personally lacking in credibility or trustworthiness; |
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2. The CRDD erred in dismissing all of the claimant's oral testimony because it found certain inconsistencies in that oral testimony. Despite any inconsistencies the applicant argues that the objective and subjective bases of the claim are satisfied; |
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3. The CRDD breached the duty of fairness owed by failing to expedite the applicant's claim after it had satisfied himself as to the applicant's personal identity and ethnicity; and |
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4. The CRDD erred in making a negative decision with respect to the applicant's credibility when it knew, from the applicant's statutory declaration that there were questions as to the quality of interpretation. |
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[18] The applicant's primary argument is that the CRDD erred in rejecting all of the evidence submitted by the claimant because they found him to be personally lacking in credibility. The applicant's argument is, in essence, that the CRDD overly scrutinized the applicant's testimony and determined the applicant not be credible based on insignificant matters.
[19] The applicant cites a number of cases in support for this proposition, the most important of which is Attakora v. Minister of Employment and Immigration (1989) 99 N.R. 168 (F.C.A.) In that decision, Mr. Justice Hugessen set aside a decision of the CRDD based on the CRDD's "zeal" to find inconsistencies in the applicant's testimony. At page 169 of that decision, Mr. Justice Hugessen states:
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I have mentioned the Board's zeal to find instances of contradiction in the applicant's testimony. While the Board's task is a difficult one, it should not be over-vigilant in its microscopic examination of the evidence of persons who, like the present applicant, testify through an interpreter and tell tales of horror in whose objective reality there is reason to believe. |
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[20] In that case, the CRDD scrutinized the applicant's testimony in regard to his escape from custody through a hole in his place of detention. The applicant described the hole as being the size of a soccer ball. The CRDD seized upon this description and found that the applicant's body would have to be smaller for him to fit through a hole that size. Similar doubts were raised in regard to the applicant's testimony regarding a fractured knee. In this case the CRDD did not descend into such chippiness.
[21] In the case at bar, many of the credibility findings go to whether there is an objective basis for concluding that the applicant faces more than a mere possibility of persecution and cannot be classed in the same category as the inconsistencies in Attakora. Specifically, the applicant's statement indicates that he had ongoing involvement with the PKK from July 1988. His PIF indicates that his family provided shelter and food to members of the PKK but in his oral testimony he stated that he had one brief encounter with the PKK. The CRDD found the applicant's oral testimony inconsistent with his written statement and brought the matter to the applicant's attention.
[22] Similarly, the applicant's testimony in regard to how long he remained in Chimenlik before returning to Izmir was inconsistent as his oral testimony indicates that he was there for a period of three months, whereas his PIF indicates a stay of thirteen months. When this issue was put to the applicant, no clarification was provided. Finally, the applicant also failed to write in his PIF that his brothers were arrested about the applicant's whereabouts after he left Turkey. No satisfactory answer was given. In each of these instances, the CRDD cannot be said to have over-scrutinized the applicant's testimony as each of these instances bears an impact on the objective basis for the applicant's claim. These examples are not similar to the matter in Attakora where the CRDD overly-scrutinized the applicant's testimony and made a credibility finding against the applicant due to insignificant matters, unrelated to the essence of the claim. Accordingly, the CRDD did not err in making the credibility finding against the applicant.
[23] The second issue raised by the applicant is that there was sufficient evidence before the CRDD to establish that he is a Convention refugee, even in the absence of his own personal and verbal testimony. The applicant points to a number of documents which were given to the CRDD which demonstrate the involvement by several of the applicant's family members in the PKK.
[24] The concept in indirect persecution has already been ruled upon by the Federal Court of Appeal. In Pour-Shariati v. Canada (Minister of Employment and Immigration) (June 10, 1997)(A-721-94) Mr. Justice MacGuigan writing for the unanimous court adopted the reasoning of Mr. Justice Rothstein [1995] 1 F.C. 767 at page 2 to 3, where he stated:
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Having considered all the cases referred to in Bhatti, and the provisions of the Immigration Act, to which I have referred, I do not see how indirect persecution as described in Bhatti arises. I conclude therefore that the panel in the case at bar did not err by not considering the question of indirect persecution or by not raising indirect persecution in the proceedings before it. |
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We accordingly overrule Bhatti's recognition of the concept of indirect persecution as a principle of our refugee law. In the words of Nadon, J. in Casetellanos v. Canada (Solicitor General) (1994), 89 F.T.R. 1, 11, "since indirect persecution does not constitute persecution within the meaning of Convention refugee, a claim based on it should not be allowed." |
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[25] There must be a nexus between the personal situation of the applicant and the general situation in Turkey with respect to members of the PKK. While certain members of the PKK may face persecution, it is for the applicant to demonstrate that he falls within that class of individuals who may face persecution. It is not sufficient to adduce evidence that members of the PKK are being persecuted without providing the necessary link between the applicant's activities and the persecution feared. Even in the situation of a perceived political opinion, a link must be made between the applicant and the political opinion which may be attributed to him.
[26] In Sheikh v. Canada, [1990] 3 F.C. 238 (C./A.) Mr. Justice MacGuigan made the following comments in regard to the necessity of linking an applicant to his claim for persecution at page 244:
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The concept of "credible evidence" is not, of course, the same as that of credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to "country reports" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. |
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I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient. |
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[27] Having not demonstrated that link and in light of the negative credibility finding, the absence of which may have provided that link, the CRDD did not err in concluding that the applicant does not face more than a mere possibility of persecution.
[28] The applicant's third argument is that the CRDD breached the duty of fairness owed by failing to expedite the applicant's claim after it had satisfied himself as to the
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applicant's personal identity and ethnicity. |
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[29] Sections 18 and 19 of the Convention Refugee Determination Division Rules (SOR/93-45) provide for the determination of a refugee claim on an expedited basis. These relevant subsections provide that:
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(3) After the preliminary conference, the refugee hearing officer shall make a report, and |
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(a) where the Minister has given notice of the Minister's intention to participate at a hearing within the periods referred to in subrule 8(2) or where the refugee hearing officer is of the opinion that the person cannot be determined to be a Convention refugee without a hearing, shall notify the registrar so that a date for a hearing may be fixed; or |
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(b) where the Minister has not given notice of the Minister's intention to participate at a hearing within the periods referred to in subrule 8(2), and where the refugee hearing officer is of the opinion that the person could be determined to be a Convention refugee without a hearing, shall forward the file to a member so that the member may decide, in accordance with subsection 69.1(7.1) of the Act and rule 19, whether the person concerned is a Convention refugee, without a hearing into the matter. |
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19. (1) Where a member receives a file pursuant to paragraph 18(3)(b), the member, before determining that the person concerned is a Convention refugee without a hearing into the matter, shall verify that |
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(a) the Minister has not given notice of the Minister's intention to participate at the hearing within the periods referred to in subrule 8(2); and |
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(b) the information with respect to the claim that is provided by the person concerned is sufficient to enable the member to determine that the person concerned is a Convention refugee, without a hearing into the matter. |
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(2) Where, after verification of the matters in subrule (1), a member determines that the person concerned is a Convention refugee, the member shall forthwith render the member's decision and shall send the file to the registrar. |
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(3) Where a member decides that the person concerned cannot be determined to be a Convention refugee without a hearing into the matter, the member shall send the file to the registrar so that a date for a hearing may be fixed. |
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[30] As the above subsections indicate, the decision to refer the matter to a hearing is a discretionary one, which ought not to be quashed by this Court unless it can be demonstrated that in exercising the discretion, the refugee hearing officer or the tribunal member, as the case may be, did not exercise the discretion in good faith or failed to act in accordance with the principles of natural justice: Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2. This, the applicant has not demonstrated.
[31] The applicant appears to presume that there is some inherent unfairness or disadvantage if the applicant is not referred to the expedited hearing process. However, as subsection 19(3) indicates, even if a recommendation is made by a refugee hearing officer that the claim be expedited, a CRDD member is permitted to set that decision aside and require that a full hearing into the merits of the claim be set. Thus, there is no "guarantee" that an applicant who is recommended to have an expedited hearing will, in fact, be found to be a Convention refugee and therefore, there are no substantive rights created by the expedited process. Accordingly, the applicant's argument on this point fails.
[32] The applicant's final argument is that the CRDD erred in making a negative decision with respect to the applicant's credibility when it knew, from the applicant's statutory declaration that there were questions as to the quality of interpretation. The issue of the quality of interpretation was only raised after the applicant's hearing, which lasted two days, was concluded and there was no specific reference made as to how the quality of interpretation was poor. A mere statement by the applicant that the quality of interpretation was poor is not sufficient to trigger an inquiry into the interpretation unless it can be demonstrated that interpretation affected in any manner the various inconsistencies in the applicant's evidence which gave rise to the adverse finding of credibility: Banegas v. Minister of Citizenship and Immigration (IMM-2642-96) (June 30, 1997). This has not been demonstrated by the applicant and accordingly, this argument fails.
[33] In this kind of proceeding the applicant bears the onus of demonstrating the validity of his complaints.
[34] For the above reasons, this application for judicial review is dismissed.