Date: 20021119
Docket: IMM-311-02
Neutral citation: 2002 FCT 1192
Ottawa, Ontario, Tuesday, this 19th day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
ISMAIL KIRBYIK
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an applicationfor judicial review, pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of the Convention Refugee Determination Division ("Board") of the Immigration and Refugee Board, dated December 21, 2001, wherein the applicantwas found not to be a Convention refugee.
FACTS
[2] The applicant is a man from Turkey who claims Convention refugee status based on his Kurdish ethnicity and religious beliefs as a member of the Alevi faith. He alleges that he was the target of persecution from Sunni Muslims and Turkish authorities beginning in 1992, including a knife attack that left him severely injured. From 1996 until 2000, the applicant worked abroad for a number of Italian companies, only returning to visit Turkey for short periods until he took over his brother's marble business in 2000. Two of his brothers had left Turkey after being detained and tortured by authorities on false accusations that the marble business was providing logistical support to the Kurdistan Worker's Party (the "PKK").
[3] The applicant alleges that in November 2000 the police raided his factory in search of one of his brothers and his nephew. When they could find neither, the applicant was arrested and questioned. He was released and warned that if his cousin did not surrender, he would be arrested instead. His cousin fled the country in early December 2000 and the applicant soon followed. He traveled through New York on his way to Canada, where he stayed for five days to visit a friend who promised to help him get to the Canadian border at Niagara Falls.
[4] The Board concluded there was insufficient credible or trustworthy evidence that the claimant has a well-founded fear of persecution by reason of either of the Convention grounds he identified. This determination was based on a negative assessment of the applicant's credibility. The Board concluded he lacked a subjective fear of persecution based on five factors:
- (a) the applicant was not questioned at the airport upon his return to Turkey in 2000 and was allowed to take over a business alleged to have connections with the PKK;
- (b) the applicant re-availed himself of Turkey's protection after working abroad despite the alleged persecution;
- (c) the applicant had difficulty in relating the precipitating incidents in a straightforward and consistent manner;
- (d) the police were not interested in the applicant because they released him after questioning him and determining that he had no information on the whereabouts of his brother or nephew; and,
The Board also found there was no objective basis for a well-founded fear of persecution based on documentary evidence indicating Alevis practice their faith freely in Turkey and Kurdish Turks are not subject to group persecution.
STANDARD OF REVIEW WITH RESPECT TO CREDIBILITY FINDINGS
OF THE REFUGEE BOARD
[5] The only issue in this application is whether the panel erred by making a patently unreasonable finding with respect to credibility. The applicant submits that the case hinges solely on credibility findings of the panel that are not sustainable. It is submitted that the Board erred by drawing unreasonable inferences from the evidence, failing to question the applicant on alleged inconsistencies, speculating on the probable conduct of persecutors and victims in other countries, and instituting its own determination on when the difficulties faced by the applicant became unsustainable.
[6] The Board is an expert tribunal in determining refugee claims. In 2001, the Board heard over 22,000 refugee claims, allowing 13,336 claims and denying 9,551 claims. Moreover, the Board has direct access to the testimony of the witness, and is in the best position to assess the credibility of the witnesses. Accordingly, the standard for reviewing findings of credibility made by the Board is that of patent unreasonableness, see Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.). In Aguebor, the Federal Court of Appeal said:
Who is in a better position than that Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the Tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
Before a credibility finding of the Board is set aside (and before leave is granted for an application with respect to a credibility finding), one of the following criteria must be established (or fairly arguable in the case of the leave application):
6. the Board did not provide valid reasons for finding that an applicant lacked credibility;
7. the inferences drawn by the Board are based on implausibility findings that in the view of the Court are simply not plausible;
8. the decision was based on inferences that were not supported by the evidence; or,
9. the credibility finding was based on a finding of fact that was perverse, capricious, or without regard to the evidence.
See Bains v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1144 at para. 11 per Madam Justice Reed.
[7] Credibility findings of the Board are entitled to the highest degree of curial deference, and the Court will only set aside credibility decisions, or grant leave for applications for judicial review of credibility findings, in accordance with the criteria outlined above. The Court should not substitute its opinion for that of the Board with respect to credibility or plausibility except in the clearest of cases. For this reason, applicants seeking to set aside credibility findings have a very heavy onus to discharge both at the stage of seeking leave, and at the hearing if leave is granted.
ANALYSIS
[8] The Court finds the Board did not err in negatively assessing the applicant's credibility. It is entitled to make an adverse finding of credibility based on the implausibility of an applicant's story, provided the inferences drawn by the panel are reasonable, see Boye v. Canada (Minister of Employment and Immigration) (1994), 83 F.T.R. 1. The panel's inference that the authorities were not genuinely interested in the applicant was reasonable. It was also open to panel to infer from the applicant's return to Turkey, his failure to leave earlier and his failure to claim refugee status while in New York that he lacked a subjective fear of persecution. Many of the applicant's actions were not consistent with those of an individual fearing persecution. And his testimony concerning events that may have supported a finding of a subjective fear was inconsistent.
[9] The Board did not err by failing to question the applicant on inconsistencies in his testimony. In Ngongo v.Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1627(T.D.)(QL), Madame Justice Tremblay-Lamer outlined the factors a Court should examine when determining whether inconsistencies should have been put to an applicant. The applicant's representation by counsel and the apparency of the inconsistencies indicate the Board was not required to put all of the inconsistencies to the applicant. The inconsistent statements that could be regarded as "slips", including his statements regarding the date he went into hiding and why he spent five days visiting New York, were put to the applicant during the hearing. The panel acted reasonably in not finding the applicant's explanations satisfactory. The Court is satisfied the applicant had an adequate opportunity to clear up any inconsistencies.
[10] It is argued by the applicant that the jurisprudence of this Court recognizes it is dangerous for a panel to speculate on the probable conduct of persecutors and victims in other countries or to institute its own determination on when the difficulties faced by an applicant became unsustainable. The Court has reviewed the jurisprudence cited by the applicant. There is no firm rule regarding a panel's use of speculation or its decision to implement its own determination for that of the applicant. The question is whether the inferences made by the panel were reasonable, see Giron v. Canada (Minister of Employment and Immigration) (1992), 143 N.R. 238 (F.C.A.), Mahmood v. Canada (Minister of Citizenship and Immigration) (1995), 91 F.T.R. 200, and Badri v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1979 (QL).
[11] The applicant submits that the panel erred by speculating that if the applicant or his brothers were truly wanted by the authorities, the authorities would not have allowed the marble factory to continue to operate. There is no basis to conclude that this inference was not reasonably open to the panel. Further, the panel did not err by finding that if the applicant's fear was genuine, he would have left Turkey earlier. The applicant argues this is the same type of error made in Giron, supra., where the panel commented adversely on the applicant's failure to leave Guatemala earlier when he possessed a valid passport. Mr. Justice MacGuigan concluded the panel erred by not accepting a reasonable explanation for the delay given by the applicant. The panel in the case at bar did not make the same error as the panel in Giron. No reasonable explanation was provided by the applicant for why he returned to Turkey after working abroad or why he waited a month to leave Turkey after he was arrested in November 2000.
[12] For these reasons, the Court finds the Board acted reasonably in dismissing the applicant's claim for refugee status.
[13] Neither counsel proposed a question for certification.
ORDER
IT IS HEREBY ORDERED THAT:
This application for judicial review is denied. No question is certified.
(Signed) Michael A. Kelen _________________________
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-311-02
STYLE OF CAUSE: ISMAIL KIRBYIK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, NOVEMBER 5, 2002
REASONS FOR ORDER
& ORDER BY: KELEN J.
DATED: TUESDAY, NOVEMBER 19, 2002
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Ms. Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD: Mr. Lorne Waldman
Barrister & Solicitor
281 Eglinton Ave. East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021119
Docket: IMM-311-02
BETWEEN:
ISMAIL KIRBYIK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER