Toronto, Ontario, April 18, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Tamtamis seeks judicial review of the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board. The RPD concluded that Mr. Tamtamis is neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Its finding turned on credibility. I agree with Mr. Tamtamis that this application should be allowed.
[2] Mr. Tamtamis is a 27-year-old citizen of Turkey. His claim is based on his Kurdish ethnicity and his leftist political opinion. He asserts that he was actively involved with the People's Democracy Party (HADEP) and the Democratic People's Party (DEHAP). Alternatively, he relies on a blood feud between his family and a nationalist family that supports the MHP (the Nationalist Action Party).
[3] Mr. Tamtamis' personal information form (PIF) is comprehensive. He describes, in considerable detail, the oppression facing Kurds in Turkey. He particularizes the circumstances regarding the five occasions upon which he claims to have been arrested and detained for periods ranging from two days to one week. He also describes, in detail, the treatment that he sustained during those detentions.
[4] The RPD based its decision on two premises: delay in making a claim and credibility.
[5] In relation to delay, the board drew a negative inference from the fact that Mr. Tamtamis did not make a claim immediately upon arrival at the airport. The delay (three days), in the board's view, suggested a lack of subjective fear. The board noted an inconsistency between the PIF and Mr. Tamtamis' oral testimony regarding his knowledge of making a refugee claim. The noted inconsistency is not borne out by the transcript. There was no inconsistency between the PIF and the oral testimony. Whether the board could, nonetheless, have drawn a negative inference is questionable. However, as counsel for both parties acknowledged, the finding with respect to "delay" was not determinative and more need not be said about it.
[6] Regarding credibility, the RPD stated that the "oral testimony was generally consistent with [the] PIF narrative". Nevertheless, it noted some credibility concerns.
[7] The first concern was the lack of documentation to support Mr. Tamtamis' nine-year involvement with HADEP and DEHAP. At the hearing, Mr. Tamtamis was asked, by counsel, why he did not have any corroborating documentation. He responded that the organizations would only provide documents to the individual in question and not to anyone acting on his behalf. The board accepted this explanation as reasonable. No further questions were asked. However, in its reasons, the board concluded that Mr. Tamtamis had ample time to obtain the documents before leaving Turkey. There was no evidence before the board that contradicted Mr. Tamtamis' involvement in HADEP and DEHAP activities. While the board is not obliged to provide an applicant with an opportunity to address every credibility concern and the onus is on the applicant to establish the claim, in the particular circumstances of this matter, in my view, it would have been preferable for the board to have provided Mr. Tamtamis with an opportunity to address this concern. Its failure to do so, however, is not patently unreasonable.
[8] Next, the RPD took issue with the fact that Mr. Tamtamis did not "elaborate or explain what he meant when he said that he was tortured or subjected to psychological and physical pressure". Having carefully reviewed the PIF, I find this determination to be patently unreasonable. To define "torture", in the context of Mr. Tamtamis' claim, would necessitate that he reiterate, for the purpose of providing a definition, the detailed comments already contained in the PIF. The only omission from the PIF is the threat to the lives of his children. While this omission is not insignificant, in view of the detail he provided, I do not regard it material. It does not, in any event, relate to the board's concern. The treatment (considered by Mr. Tamtamis to be torture) is set out specifically and comprehensively in his PIF.
[9] The board additionally drew a negative credibility inference from the fact that Mr. Tamtamis lied to a visa officer, offshore, to gain entrance to Canada. The respondent concedes that the RPD erred in this respect.
[10] These noted findings constitute the basis upon which the RPD arrived at its negative credibility determination and its penultimate conclusion that Mr. Tamtamis was not politically active.
[11] Given my misgivings regarding the "documentation" issue, combined with the noted errors of the board in relation to its other credibility findings, in my view, the credibility determination cannot be sustained. This conclusion is dispositive and I need not deal with the peripheral issues.
[12] Counsel did not suggest a question for certification and none arises.
JUDGMENT
IT IS ORDERED AND ADJUDGED THAT the application for judicial review is allowed and the matter is remitted to a differently constituted Refugee Protection Division for determination.
"Carolyn Layden-Stevenson"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4531-05
STYLE OF CAUSE: IBRAHIM TAMTAMIS v.
MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 18, 2006
AND JUDGMENT: Layden-Stevenson J.
APPEARANCES:
| Mr. Lorne Waldman |
|
| Ms. Neeta Logsetty |
SOLICITORS OF RECORD:
| Waldman & Associates Barristers and Solicitors Toronto, Ontario
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |