MB3-02639

RAD File No. / Nº de dossier de la SAR : MB3-02639; MB3-02640 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX XXXX XXXX XXXX Appelant(e)(s) Appeal Considered / Heard at Montréal, Quebec Appel instruit à Date of Decision October 3, 2013 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the Appellant(s) Me Jean-François Bertrand Conseil(s) du (de la/des) appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre I. INTRODUCTION [1] XXXX XXXX XXXX, the principal appellant, and XXXX XXXX, his wife, citizens of Turkey, are appealing against a decision of the Refugee Protection Division (RPD), alleging that the RPD rendered a decision on the basis of errors in its assessment of their credibility and its analysis of the risk they would face if they were to return to live in Turkey. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Act, the Refugee Appeal Division (RAD) allows the appeal and sets aside the determination of the RPD. Consequently, the matter is referred to a differently constituted panel for re-determination, including consideration of whether the appellants are members of a group, that is, the Kurds, who, in Turkey, face persecution as members of a particular ethnic group or nationality. III. BACKGROUND A. Basis of the claim [3] In the form entitled Basis of Claim Form (BOC Form), which he signed on May 3, 2013, the principal appellant states that he is a citizen of Turkey, was born on XXXX XXXX, 1970, is of Kurdish nationality or belongs to the Kurdish ethnic group and is a Muslim, and is married and a father to four children, with his wife and one of his daughters living in Canada and two sons and another daughter living in Turkey at the time that he signed his BOC Form.1 [4] In his BOC Form, writing in the plural in reference to his wife and himself, the principal appellant states that should they return to their country, Turkey, they would again have the same problems as Kurds-they would again be arbitrarily arrested, beaten, tortured and maybe even killed without anyone knowing why, as they were persecuted by Turkish nationalists and Turkish police.2 [5] In his BOC Form, the principal appellant states that, in the past, he and the members of his family were harmed, mistreated and threatened, and that their problems started as soon as he was born. He also states that his father was killed in 1974, when he was four years old, that they have always been persecuted, and that he had problems during his military service-one of his friends was killed when he said that he was a Kurd.3 [6] In his BOC Form, the principal appellant states that in the past, he and the members of his family had trouble renting apartments because they are Kurds, that his son XXXXwas not accepted by the police school because he is a Kurd and that, in late XXXX 2010, they were extorted by individuals and the police did not do a thing apart from insulting and belittling them. He also states that, in XXXX2011, while he was in Izmir as a XXXX XXXX, some Turks beat them and again the police did nothing; in XXXX2012, in Diyarbakir, he participated in Newroz, and the police attacked the crowd and he was arrested, detained and beaten; and in XXXX2012, while he was XXXX XXXX XXXXand entering the city of Konya, the police arrested him, accused him of being a terrorist, beat him, detained him for about four hours, injured him and threatened him with death.4 [7] In his BOC Form, the principal appellant states that they had asked the authorities, such as the police, to protect them, but that the state itself and its police force were persecuting them and that every time they tried to obtain help, they were persecuted by the police itself.5 [8] In his BOC Form, the principal appellant states that they moved to other parts of their country several times, first from their village, XXXX XXXX, to Sarayonu in 2002, and then to Konya in 2007; in this last city, they moved several times because they were persecuted and no one wanted to rent them housing, and they were evicted when the landlords would find out that they were Kurds.6 [9] In his BOC Form, the principal appellant states that they left their country on XXXX XXXX, 2013, and not sooner or later, because of the events they experienced in 2010, 2011 and 2012, and also because their daughter Hatice had immigrated to Canada and married there, and they had taken this opportunity to obtain visitor visas, leaving their two minor children behind because they had no other choice.7 [10] In his BOC Form, the principal appellant adds as an important detail for their refugee protection claims the fact that their history as Kurds is a tragic one, that the Kurds are constantly persecuted, be it by the army in villages, by the police in cities or by Turkish nationalists throughout Turkey. He also states that when they decide to live as Kurds, a life of freedom and safety is impossible in Turkey and that, for these reasons, they had no other choice but to immigrate to Canada and to claim refugee protection here.8 [11] In her BOC Form, which she signed on May 3, 2013, the principal appellant's wife states that she is a citizen of Turkey, was born on XXXX XXXX, 1964, is of Kurdish nationality or belongs to the Kurdish ethnic group and is a Muslim, and is married and a mother to four children, with her husband and one of her daughters living in Canada and two sons and another daughter living in Turkey at the time that she signed her BOC Form.9 As for the other information that should appear in her BOC Form, she replied to refer to her husband's BOC Form.10 B. RPD decision [12] The hearing before the RPD was held on July 8, 2013. In its decision dated July 17, 2013, after declaring that it was satisfied with the appellants' identities, the RPD identified the appellants' credibility as being the determinative issue in this case.11 [13] In its reasons, the RPD found that the principal appellant testified in a vague, evasive manner and provided contradictory information during his testimony; consequently, his credibility was undermined.12 [14] In its reasons, the RPD found that the appellants' behaviour was inconsistent with the behaviour of individuals fearing persecution.13 It also concluded that, when analyzed as a whole, the various elements of their testimony and their behaviour did not warrant giving them the benefit of the doubt, and it found that the appellants were not credible.14 [15] In its reasons, the RPD also analyzed the risk the appellants might face as Kurds if they were to return to live in Turkey.15 In its final conclusion rejecting the refugee protection claims, the RPD writes as follows: [translation] [21] Having analyzed all of the evidence, the panel concludes that the claimants did not discharge their burden of establishing that there was a serious possibility of their being persecuted on one of the Convention grounds. Moreover, they failed to demonstrate, on a balance of probabilities, that should they return to Turkey, they would be personally subjected to a danger of torture, a risk to their lives or a risk of cruel and unusual treatment or punishment.16 C. Grounds of appeal [16] In their memorandum,17 the appellants submit that the RPD's decision contains many errors with respect to the assessment of their credibility and the analysis of the risk they would face if they were to return to live in Turkey: - The RPD erred with respect to the nature of the answers given by the principal appellant from the outset of the hearing and drew a negative inference that persisted. - The RPD erred in finding it implausible that the appellants were evicted from their apartments because of their Kurdish origins. - The RPD erred in finding that the attack that the principal appellant was subjected to in Izmir in XXXX 2011 did not have ethnic dimensions. - The RPD erred in finding that the principal appellant was not tortured during his detention in Diyarbakir, and its failure to explain its reasoning in more detail makes the decision reviewable on the standard of correctness. - The RPD erred in finding that there was a lack of subjective fear on the part of the appellants. - In its analysis of the risk the appellants might face as Kurds if they were to return to live in Turkey, the RPD failed to consider the fact that the principal appellant is a Kurd who is open about his Kurdish identity. D. Remedy sought [17] The appellants did not clearly specify what they are asking of the RAD. In their memorandum, the appellants nonetheless state that, in their opinion, part of the RPD decision does not satisfy the standard of review of reasonableness and that another part does not satisfy the standard of correctness.18 IV. HEARING BEFORE THE RAD A. The appellants requested a hearing [18] The Refugee Appeal Division Rules provide that the record of the person who is the subject of the appeal must include a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act and a memorandum that includes full and detailed submissions regarding why the RAD should hold such a hearing if the appellant is requesting that a hearing be held.19 [19] In his written statement, the principal appellant states that no evidence under subsection 110(4) of the Act was being filed on appeal. He adds, however, that the evidence filed in the memorandum raises important questions regarding credibility, and he consequently requests that a hearing be held as part of this appeal proceeding. [20] It should be noted that, under subsection 110(3) of the Act, the RAD generally proceeds without a hearing, on the basis of the record of the proceedings of the RPD: 110. (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 110. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d'audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s'agissant d'une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. B. Subsection 110(6) test [21] Pursuant to subsection 110(6) of the Act, when evidence presented on appeal is found to be admissible, it should be determined whether it raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim and whether it would justify allowing or rejecting the refugee protection claim. If the answer is affirmative, the RAD may hold a hearing. 110. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 110. (6) La section peut tenir une audience si elle estime qu'il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; b) sont essentiels pour la prise de la décision relative à la demande d'asile; c) à supposer qu'ils soient admis, justifieraient que la demande d'asile soit accordée ou refusée, selon le cas. C. No cause to hold a hearing before the RAD [22] In this case, the appellants did not present any evidence on appeal, and no evidence was therefore found admissible on appeal. Consequently, it is impossible to hold a hearing. [23] For these reasons, I find that there is no cause to hold a hearing before the RAD. VI. STANDARDS OF REVIEW [24] The standard of review analysis need not be conducted in every instance. Where the standard of review applicable to a particular question is well settled by past jurisprudence, it may be adopted. Based on the case law, only where this search proves fruitless is it necessary to perform this analysis.20 [25] In the case before us, it is worth noting that the RAD is not a court of law and that it does not review RPD decisions, but rather determines appeals in an administrative and non-judicial context. In fact, the RPD and the RAD are two separate divisions of the Immigration and Refugee Board.21 Sections 162 to 169 of the Act identify the provisions that apply to them both, particularly that each "has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction";22 that the members of both divisions have the powers and authority of a commissioner and may do any other thing they consider necessary to provide a full and proper hearing;23 and that hearings before both divisions are held in the absence of the public, although each may conduct a proceeding in public, or take any other measure that it considers necessary to ensure the appropriate access to the proceedings.24 Sections 169.1 to 170.2 of the Act are specific to the RPD, while sections 171 and 171.1 are specific to the RAD. [26] Under subsection 110(1) of the Act, ...a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person's claim for refugee protection. [27] When analyzing the respective roles of two administrative tribunals and deciding which standard of review the Law Enforcement Review Board should apply in determining an appeal against a decision rendered by the officer tasked with hearing a complaint about a police officer's behaviour, the Alberta Court of Appeal noted that the mere presence of a right of appeal, including appeals within an administrative structure, does not in any way mean that no deference is owed to the first-level decision-maker.25 [28] In its decision, the Court of Appeal referred to the example of the relationship established between a trial judge and an appeal judge: The presumption underlying the structure of our court system is that a trial judge is competent to decide the case before him or her, and that a just and fair outcome will result from the trial process. Frequent and unlimited appeals would undermine this presumption and weaken public confidence in the trial process. An appeal is the exception rather than the rule.26 [29] In thus citing the Supreme Court of Canada, the Court of Appeal was emphasizing the importance of promoting the autonomy of the proceeding and its integrity, adding that the same principle applies within administrative structures: The same principle applies to the hearings before the presiding officers. If the Board was to continue to routinely rehear all matters on a de novo basis, and to extend no deference whatsoever to the decisions of the presiding officers, that would only undermine the apparent integrity of those hearings. As previously stated, that is inconsistent with the hybrid scheme of the Act. As the appellant noted, that approach undermines those hearings to the point that they become almost academic, and call into question the need of the interested parties to even participate in them. The hearing would be reduced to a type of preliminary inquiry.27 [30] I am of the opinion that the expertise and advantageous position of the first-level decision-maker should also be recognized, as did the Supreme Court regarding the trial judge: The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected.28 [31] After considering the respective roles of the decision-makers, their particular expertise and the general economy of the proceedings, the Alberta Court of Appeal identified which standards of review the Law Enforcement Review Board should apply to the decision rendered by the first-level decision-maker: [82] In conclusion, the decision of the Board to conduct a de novo hearing, and to assume that it owed no deference to the findings of the presiding officer was in error. The role of the Board is primarily to sit on appeal from the presiding officer. The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him. The focus of the appeal to the Board should be on its dual mandate of civilian oversight, and the correction of unreasonable results. [83] There is no general power to hold a de novo hearing in every case, and no requirement that a de novo hearing be held unless the parties consent to proceeding otherwise. Where a sufficient reason is shown or the issues on appeal warrant it, the Board has the power to admit fresh evidence. When sufficient cause is shown the Board can even rehear key evidence presented to the presiding officer. [84] The Board has a legitimate role to play in providing civilian oversight to the system of police discipline where oversight issues arise. The Board is not bound by the inferences and conclusions of the presiding officer, but it should be able to offer some articulable reason based in law, fact or policy when it interferes with a decision under appeal. The Board should proceed primarily from the record created by the hearing before the presiding officer. It should extend deference to the decision of the presiding officer on questions of fact, credibility, and technical policing issues. If the decision of the presiding officer was reasonable, the Board should not substitute its own view just because it might have come to a different conclusion. Where the appeal raises issues of acceptability of particular police conduct, or the integrity of the discipline process, the Board's mandate is more robust.29 [32] Relying on the reasoning of the Alberta Court of Appeal and the factors it identified in its analysis of the decision in Newton, and making the necessary adjustments to the particular context of the RPD and the RAD, I am of the opinion that, except for strict issues of law or natural justice, it is appropriate for us, as members of the RAD, to extend the same deference to RPD decisions. In fact, this deference is the same as that which courts of law are required to extend to decision-makers of first instance when the issue is a question of fact or a question of mixed law and fact. [33] In their memorandum,30 the appellants submit that the RPD made errors in its assessment of their credibility and its analysis of the risk they would face if they were to return to live in Turkey. They also indicate which standards of review, in their opinion, should apply: - Regarding aspects 1 to 3 and 5 to 6 of the RPD's decision, which concern the credibility assessment and the appellants' subjective fear, the appellants consider that these are reviewable against a standard of reasonableness. - Regarding aspect 4 of the decision, namely, that the RPD erred in finding that the principal appellant was not tortured during his detention in Diyarbakir and failed to explain its reasoning in this respect, in their opinion, the standard of review of correctness should apply. - With respect to aspect 7 of the RPD's decision, namely, that in its analysis of the risk the appellants might face as Kurds if they were to return to live in Turkey, the RPD failed to consider the fact that the principal appellant is a Kurd who is open about his Kurd identity, they are of the opinion that the RPD's reasoning is incomplete, but feel it would be excessive to find the decision to be unreasonable on the mere basis of such an omission. - Lastly, in their view, it appears from the whole of the decision that it satisfies neither the standard of correctness nor that of reasonableness.31 [34] In my opinion, the appellants essentially raise two grounds of appeal. [35] The first regards the RPD's assessment of their testimony and their behaviour with respect to their subjective fear of persecution, which, in my opinion, are questions of fact. Relying on the case law, I am of the opinion that the standard of review to be used in similar cases is that of reasonableness.32 [36] The second concerns the application of the concept of torture to the facts of the case and the adequate or sufficient nature of the reasons in this regard. Relying on the case law, it is my view that the standard of review that must be applied when a legal concept is applied to the facts is reasonableness,33 and I find that the same standard applies to the adequate or sufficient nature of the reasons for an RPD decision.34 [37] When a decision is reviewed on the standard of reasonableness, the analysis must relate to the justification, transparency and intelligibility within the decision-making process, as well as to whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.35 VII. ANALYSIS OF THE MERITS OF THE APPEAL A. First ground of appeal: Did the RPD make one or more errors in its assessment of the appellants' credibility and subjective fear? [38] With respect to this ground of appeal, I have arrived at the conclusion that the RPD made unreasonable errors. Here is why. [39] In their memorandum, the appellants submit the following: - The RPD erred with respect to the nature of the answers given by the principal appellant from the outset of the hearing and drew a negative inference that persisted.36 - The RPD erred in finding it implausible that the appellants were evicted from their apartments because of their Kurdish origins.37 - The RPD erred in finding that the attack that the principal appellant was subjected to in Izmir in XXXX 2011 did not have an ethnic dimension.38 - The RPD erred in finding that there was a lack of subjective fear on the part of the appellants.39 - In its analysis of the risk the appellants might face as Kurds if they were to return to live in Turkey, the RPD failed to consider the fact that the principal appellant is a Kurd who is open about his Kurdish identity.40 [40] In the reasons for its decision, the RPD found that the principal appellant testified in a vague, evasive manner and provided contradictory information during his testimony; consequently, his credibility was undermined.41 [41] At paragraph 12 of its decision, the RPD explains why it is of the opinion that the principal appellant's failure to spontaneously testify about the problems he personally experienced undermined his credibility: [translation] [12] When questioned about the problems experienced in Turkey, the principal claimant did not spontaneously speak of the events he experienced personally but rather of the problems experienced by the Kurds in general. The panel had to insist for the claimant to provide specific examples of the discriminatory incidents he allegedly experienced. For example, the panel asked him to describe the problems he experienced between 2003 and 2007, the period during which he decided to leave Turkey. The principal claimant testified that his children could not go to school because of their Kurdish origin and that he feared suffering the same fate as his father, who was killed under torture in 1974. When questioned about the problems he himself allegedly experienced between 2003 and 2007, the claimant evaded the question by mentioning incidents the Kurds have experienced, such as raids, interrogations and abuse.42 [42] At paragraphs 13 and 14 of its decision, the RPD explains why it is of the opinion that the principal appellant exaggerated the problems that he and the members of his family experienced and that it is implausible that the appellants were evicted from their apartments because they were of Kurdish origin: [translation] [13] The principal claimant eventually testified on some problems that he had personally experienced. However, the panel is of the view that the claimants exaggerated the problems they experienced. For example, the principal claimant testified that they were unable to find housing when they moved to Konya in 2007, even though his testimony later revealed that they found an apartment in 2007, but that they were evicted from it a year later. The principal claimant stated that they were evicted when the landlord found out that they were Kurds. The claimants were allegedly evicted from an apartment in 2012, after living there for four years. When asked about why the claimants believe that they were evicted from their apartments because they are Kurds, the principal claimant replied that he found out because the landlord did not want to talk to them and told them that he did not want them as tenants. The panel is of the opinion that this is not sufficient in itself to suggest that a landlord evicted them because they are Kurds. [14] In the absence of more convincing information, the panel concludes that it is implausible that the reasons that led to the claimants' eviction from their apartments were their Kurdish origins. The panel reaches this conclusion, among other things, by reason of the absence of evidence to this effect, other than the claimants' assumption. The panel also finds it implausible because of the time that elapsed before they were asked to leave their apartments as well as because of the fact that half the population of Konya is Kurd. Moreover, when asked how their landlord found out that they were Kurds, the principal claimant first testified that he did not know, but that it was possible that the landlord had spoken to people in the neighbourhood. The panel confronted the principal claimant with a statement made earlier during the hearing, namely, that their features and their accent betray the fact that they are Kurdish and that the landlord therefore should have known that he was renting to Kurds. The claimant thus adjusted his testimony by stating that the apartment was rented through an agency, but that when they met the landlord, for the first time, about a year after they rented the apartment, he knew that they were Kurds on sight.43 [43] At paragraph 15 of its decision, the RPD explains why it concluded that the Izmir incident was not a unilateral attack on the principal claimant because he is a Kurd: [translation] [15] In his Basis of Claim Form (BOC Form), the principal claimant states that he was beaten by Turks in Izmir in XXXX 2011 and that the police did not do anything. At the hearing, the claimant did not spontaneously state that he was beaten when testifying about the incident in Izmir. Rather, he explained that, in XXXX 2011, in Izmir, while he was working for a XXXX XXXX, there was a conflict between the truck drivers because the Turks wanted to unload their trucks first, despite the Kurds having arrived before them. The police were called. The police came, but did nothing apart from asking the Kurds to leave the premises. Later on during the hearing, the panel asked him why the police had been called. The claimant replied that the Turkish truck drivers had insulted the Kurdish drivers and that there had been a fight. Since the Turks were greater in number, a Kurd had called the police for protection. When confronted with the statement in his BOC Form that he had been beaten, the claimant replied that he wrote that they had been beaten because the Turks had been greater in number. The panel concludes that the Izmir incident was not a unilateral attack on the claimant as a result of his being Kurdish, but rather a conflict between two groups, despite the fact that the groups were of different ethnicities.44 [44] At paragraph 16 of its decision, the RPD explains why it concluded that the manner in which the principal appellant was treated during his detention in Diyarbakir in XXXX 2012 did not amount to torture: [translation] [16] At the hearing, the claimant testified regarding his detention in Diyarbakir in XXXX 2012, stating that he was arrested, insulted and beaten with other Kurds. Later, during the hearing, he stated, [translation] "We were tortured and beaten...." Yet the claimant did not mention in his BOC Form that he was a victim of torture, but rather that he was beaten. When asked about his personal experience, he stated that he was beaten, insulted and deprived of food. Even though the panel can accept that, in the principal claimant's mind, the way he was treated in detention amounted to torture, the panels finds, objectively, that it was not torture.45 [45] At paragraph 17 of its decision, the RPD explains that it drew a negative inference affecting the appellants' credibility because they did not include their children in their efforts to leave Turkey.46 At paragraph 18, it explains that, in its opinion, the appellants did not provide a satisfying explanation for the time that it took for them to leave their country.47 [46] It finally concluded that, when analyzed as a whole, the various elements of their testimony and their behaviour did not allow the panel to give them the benefit of the doubt and that it was of the opinion that the appellants were not credible.48 [47] The RPD then continued its analysis with respect to the risk the appellants might face as Kurds if they were to return to live in Turkey: [translation] [20] The tribunal has carefully analyzed the latest documentary evidence49 regarding the general situation of the Kurds in Turkey. This evidence refers to, among other things, ethnic tensions, violent incidents, arbitrary arrests and discrimination against Kurds to varying degrees depending on the profile of the person. Kurdish militants, Kurds who are open about their identity and those who do not speak Turkish seem to have more problems. From the personal circumstances of the claimants, the panel notes that, before coming to Canada, the principal claimant worked in Turkey for many years for the same employer. Moreover, the claimants have an apartment in Konya, in which their children still live. The claimants are not militants and chose to testify in Turkish at the hearing. The fact that the principal claimant was, sporadically, arbitrarily arrested on two occasions does not lead to the conclusion that he will be targeted by the police or by the army in the future. The tribunal also considered the profile of the female claimant as a Kurdish woman. According to the documentary evidence,50 some women in Turkey are the victims of spousal or other abuse and of discrimination. At the hearing, the female claimant stated that she was more afraid for her husband and her children but added that she had been afraid of speaking Kurdish. However, nothing in the evidence presented by the claimants suggests that the female claimant had been the victim of violence or of discrimination that could, cumulatively, amount to persecution. The panel concludes that there is insufficient evidence to establish that the claimants would be persecuted merely because they are Kurds should they return to Turkey.51 [48] As part of its demanding duties, the RPD must assess all the evidence presented before it, including the BOC Form, which is the primary source for understanding a claimant's personal situation. The case law indicates that the circumstances, situations and events within this document must not be overlooked; otherwise, a travesty to justice could be the consequence. Moreover, this document must be understood in its context, that is, in light of the documentary evidence on the country where the person seeking refugee protection fears returning to live.52 [49] That being said, it is permissible to disbelieve the testimony of a refugee protection claimant. However, this must be stated unequivocally.53 In other words, there is an obligation to give reasons, in clear and unmistakable terms, in support of a finding that a portion of testimony or evidence is not credible54 after assessing the credibility of the refugee protection claimant, taking into account all the evidence and testimony, as well as the fact that the refugee protection claimant has made his or her various statements under oath.55 [50] In his BOC Form, the principal appellant clearly presents a situation regarding him personally as the member of a family, but he also specifically refers to the situation concerning all Kurds, stating, for example, that his father was killed in 1974 while he was still a child and that, in the future, should he and his wife return to their country, they would risk re-experiencing the same problems as Kurds, and that they would again be arbitrarily arrested, beaten, tortured and maybe even killed without anyone knowing why, as all Kurds are persecuted by Turkish nationalists and the Turkish police.56 [51] The documentary evidence characterizes the situation of Kurds living in Turkey with respect to human rights as worrying: Citizens of Kurdish origin constituted a large ethnic and linguistic group. More than 15 million of the country's citizens identified themselves as of Kurdish origin and spoke Kurdish dialects. Kurds who publicly or politically asserted their Kurdish identity or promoted using Kurdish in the public domain risked censure, harassment, or prosecution, although significantly less so than in previous years.57 Sources place the number of internally displaced Kurds between approximately one million, to one to four million. According to MRG, these Kurds were mostly displaced in the "early 1990s" from the eastern and south-east region of Turkey. Sources state that these internally displaced persons migrated to western cities such as Izmir, Istanbul, and Ankara. According to the Coordinator of the Kurdish Studies Network, this migration was "politicized" and ethnic divisions became "much more visible". He added that there was an increase in Turkish nationalism while Kurds also became more radicalized, and that the Kurdish question, which used to be concentrated in Kurdish areas, moved to western cities.... In correspondence with the Research Directorate, a representative of the Human Rights Foundation of Turkey in Ankara indicated that since the March 2009 local elections, there has been an "atmosphere of pressure" against Kurds. According to the Human Rights Association, continued clashes and a stalemate in the Kurdish issue have led to a "culture of violence" and the "spread of nationalism and chauvinism". Similarly, in a telephone interview with the Research Directorate, an Associate Professor of History at the University of Akron in Ohio, United States, noted that there is "nationalist backlash" against Kurds living in western cities. The Coordinator of the Kurdish Studies Network stated that there are "tense ethnic relations" and an "inflamed atmosphere," and that when there's a clash between Turks and Kurds, it's reflected in western cities by Kurds being targeted. The Coordinator stated that there is "anti-Kurdish sentiment" in all western cities, but that this sentiment is especially strong in Izmir, Bursa and Trabzon. He added that Izmir and Trabzon are known to be particularly nationalist, and that Izmir has "recently" become very "anti-Kurdish". ... Sources indicate that Kurds often try to hide their Kurdish identity. The Coordinator of the Kurdish Studies Network indicated that Kurds who openly disclose their identity will face problems.... The Coordinator of the Kurdish Studies Network indicated that hate crimes against Kurds in western cities have taken place along with the rise of Turkish nationalism. Sources indicate that Kurds are often targeted with violence after incidents occur, for example, if there are clashes in Kurdish regions, or if Turkish soldiers have been killed. The Coordinator of the Kurdish Studies Network loot and firebomb stores that are assumed to be owned by Kurds.58 [52] Although refugee protection claimants must establish their case on a balance of probabilities, they are not required to show that it is more likely than not that they would be persecuted. In other words, it is not necessary for refugee protection claimants to establish that they were or will be subjected to persecution. What the evidence must establish is that a claimant has a well-founded fear of persecution on one of the grounds set out in the Act.59 Moreover, in order to conclude that there is a well-founded fear of persecution, or, in other words, a reasonable chance or serious possibility of persecution, there need not be more than a 50 percent chance (i.e. a probability), but there must be more than a minimal possibility,60 since between these two limits, there is no intermediate ground.61 [53] In light of the statements made by the principal appellant in his BOC Form, the documentary evidence concerning Kurds living in Turkey and the case law regarding the burden of proof in refugee protection claims, I find that the RPD's decision does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [54] First, the fact that the principal appellant chose to express himself in Turkish at his hearing does not limit the fact that he indicated in his BOC Form that he is of Kurd nationality or belongs to the Kurd ethnic group and that he speaks Kurdish. In its reasons, the RPD criticized the principal appellant for not spontaneously speaking of the incidents he experienced personally but for speaking of the problems experienced by Kurds in general. Such a criticism seems to be an error on the part of the RPD in the sense that it must analyze all the evidence and consider the personal characteristics of the person seeking refugee protection. That a person whose father was killed under torture when he was child and who states in his BOC Form that all Kurds are persecuted in Turkey and that his problems started when he was born speaks spontaneously of the problems faced by the Kurds at his hearing seems to be behaviour that can be reasonably expected. [55] While it is true that the RPD may find the facts alleged by a person claiming refugee protection to be implausible, it must, however, only do so in the clearest of cases and only after being very careful.62 Given its conclusion that [translation] "that it is implausible that the reasons that led to the claimants' eviction from their apartments were their Kurdish origins", I find that the RPD was not careful enough in its assessment of what may be deemed implausible in the context of Turkey nowadays given that the documentary evidence includes elements that tend to establish that one can reasonably expect that in Turkey today, people often do not rent houses to Kurds.63 [56] Furthermore, and I say this with full respect, the reasoning of the RPD that led it to conclude that "the Izmir incident was not a unilateral attack on the claimant as a result of his being Kurdish, but rather a conflict between two groups, despite the fact that the groups were of different ethnicities" seems hard to justify in the specific context of Turkey given that the documentary evidence includes information pointing to the existence of anti-Kurdish sentiment, hate crimes being committed against the Kurds, and violence resulting in a daily risk of being attacked.64 [57] Also, while it is true that the principal appellant did not specifically write in his BOC Form that he was tortured while he was detained in Diyarbakir in XXXX 2012, the fact remains that he alleged having been arrested there, accused of being a terrorist, beaten, kept in detention for about four hours, injured and threatened with death, which is what he testified to at the hearing. That the RPD concludes from this, with reason or incorrectly, that the events in question cannot be characterized as acts of torture does not undermine the principal appellant's credibility with respect to the facts themselves. [58] In the reasons for its decision, the RPD wrote that [translation] "[t]he fact that the principal claimant was, sporadically, arbitrarily arrested on two occasions, does not lead to the conclusion that he will be targeted by the police or by the army in the future."65 In my view, and according to the case law, this is not what the principal appellant has to establish. [59] But even more problematic is the following reasoning by the RPD: [translation] [19] In conclusion and even though each of the elements taken individually could have triggered the benefit of the doubt, when they are analyzed together, the panel is of the opinion that the claimants are not credible.66 [60] In my opinion, no explanation is given for the fact that, taken individually, each of the elements could have resulted in the appellants being given the benefit of the doubt, but that, once analyzed together, these elements lead to the conclusion that they are not credible. Moreover, as I have just demonstrated, some of the basic elements in the analysis performed by the RPD arise from errors on its part, which further weakens the grounds for its final reasoning. [61] Furthermore, in light of the information provided by the principal appellant in his BOC Form, I find that the RPD had to extend its analysis beyond the strictly personal situation of the appellants and ask itself whether they are part of a group, the Kurds, who are persecuted as a particular ethnic group or nationality. In this respect, the case law indicates that persecution under section 96 of the Act can be established by examining the treatment of similarly situated individuals: In the context of claims derived from situations of generalized oppression, the issue is not whether the claimant is more at risk than anyone else in his country, but rather whether the broadly based harassment or abuse is sufficiently serious to substantiate a claim to refugee status. If persons like the applicant may face serious harm for which the state is accountable, and if that risk is grounded in their civil or political status, then he is properly considered to be a Convention refugee.67 Unlike section 97 of the IRPA [the Act], there is no requirement under section 96 of the IRPA [the Act] that the applicant show that his fear of persecution is "personalized" if he can otherwise demonstrate that it is "felt by a group with which he is associated, or, even, by all citizens on account of a risk of persecution based on one of the reasons stated in the definition [of a Convention refugee].68 [62] I find that the RPD's failure to perform this analysis is an unreasonable error that results in its decision not falling within a range of possible outcomes which are defensible in respect of the facts and law. [63] Having said that, can the RAD, on its own, conclude that in Turkey today, the Kurds face persecution as a particular ethnic group or nationality, simply based on a reading of the documentary evidence on the record without at least hearing the appellant's arguments as expressed by their counsel? In my opinion, no. Therefore, in the circumstances, I am of the opinion that it is preferable for me to refer the matter to the RPD for re-determination by a differently constituted panel. [64] It must also be mentioned that if the RPD concludes that the Kurds, as a particular ethnic group or nationality, do not face persecution, it must then examine the appellants' refugee protection claims, taking into account the credibility of their allegations with respect to their personal situation. In that regard, in the context of this appeal, although I concluded that the RPD made errors that I find to be unreasonable and that its decision falls outside a range of possible outcomes which are defensible in respect of the facts and law, this does not mean that I can substitute the determination that, in my opinion, should have been made for the RPD's determination. In this case, although the recording of the hearing concerning the appellants' refugee protection claims is part of the record before me, the fact remains that I cannot substitute my own determination for the one rendered by the RPD without hearing the evidence presented before it. With respect to credibility, in my opinion, the case law is clear: credibility can be analyzed only on the basis of an oral hearing, and findings should be made only by a decision-maker who has participated in that hearing and who has heard all the evidence.69 VIII. REMEDY [65] For these reasons, I set aside the determination of the RPD and refer the matter to a differently constituted panel for re-determination, including consideration of whether the appellants are members of a group, that is, the Kurds, who, in Turkey, face persecution as members of a particular ethnic group or nationality. [66] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette October 3, 2013 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form) of the principal appellant, pages 24, 29 and 32 of the RPD record. 2 Idem, page 25 of the RPD record. 3 Idem, page 24 of the RPD record. 4 Idem. 5 Idem, page 25 of the RPD record. 6 Idem, page 26 of the RPD record. 7 Idem. 8 Idem, page 27 of the RPD record. 9 BOC Form of the principal appellant's wife, pages 14, 19 and 22 of the RPD record. 10 Idem, pages 14 to 17 of the RPD record. 11 RPD decision, paragraphs 9 and 10, page 5 of the RPD record. 12 Idem, paragraphs 11 to 16, pages 5 to 8 of the RPD record. 13 Idem, paragraphs 17 and 18, pages 8 and 9 of the RPD record. 14 Idem, paragraph 19, page 9 of the RPD record. 15 Idem, paragraph 20, pages 9 and 10 of the RPD record. 16 Idem, page 10 of the RPD record. 17 Appellants' memorandum, pages 15 to 34 of the appeal record. 18 Idem, paragraphs 89 to 92, page 34 of the appeal record. 19 Refugee Appeal Division Rules, SOR/2012-257, subrule 3(3). 20 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, at paragraph 62. Canada (Human Rights Commission v. Canada (Attorney General), 2011 SCC 53; [2011] 3 S.C.R. 471, at paragraph 16. Cetinkaya v. Canada (Minister of Citizenship and Immigration), No. IMM-3362-11, Russell, January 4, 2012; 2012 FC 8, at paragraph 16. 21 Section 151 of the Act: "The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division." 22 Section 162 of the Act. 23 Section 165 of the Act. 24 Section 166 of the Act. 25 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 55 and 56: [55] ...While H.L. was decided on the Housen principles, and Khosa was decided on the Dunsmuir/Pushpanathan principles, both cases clearly reject the argument that the mere presence of a right of appeal signals that no deference is called for. There is no principled basis on which to make an exception for appeals within an administrative structure, such as the one that is in issue in this appeal. [56] The mere presence of a right of appeal from the presiding officer to the Board does not warrant a correctness standard of review. 26 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, at paragraph 17, as cited by the Alberta Court of Appeal in Newton at paragraph 81. 27 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, at paragraph 81. 28 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, at paragraph 17. 29 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, at paragraphs 82 to 84. 30 Appellants' memorandum, pages 15 to 34 of the appeal record. 31 Idem, paragraphs 89 to 92, page 34 of the appeal record. 32 Parthipan Balasubramaniam v. Canada (Minister of Citizenship and Immigration), No. IMM-4243-12, Scott, June 21, 2013; 2013 FC 698, at paragraph 23. Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, at paragraph 26. 33 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, at paragraph 164. Gabor Miroslav v. Canada (Minister of Citizenship and Immigration), No. IMM-3466-09, Russell, April 12, 2010; 2010 FC 383, at paragraph 20. 34 Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62; [2011] 3 S.C.R. 708, at paragraphs 14 and 16. 35 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, at paragraph 47. Gabor Miroslav v. Canada (Minister of Citizenship and Immigration), No. IMM-3466-09, Russell, April 12, 2010; 2010 FC 383, at paragraph 22. Bethany Lanae Smith v. Canada (Minister of Citizenship and Immigration), No. IMM-5699-11, Mosley, November 2, 2012; 2012 FC 1283, at paragraph 19. 36 Appellants' memorandum, paragraphs 5 to 28, pages 16 to 20 of the appeal record. 37 Idem, paragraphs 29 to 46, pages 20 to 24 of the appeal record. 38 Idem, paragraphs 47 to 51, pages 24 and 25 of the appeal record. 39 Idem, paragraphs 63 to 80, pages 29 to 33 of the appeal record. 40 Idem, paragraphs 81 to 88, pages 33 and 34 of the appeal record. 41 RPD decision, paragraph 11, page 5 of the RPD record. 42 Idem, pages 5 and 6 of the RPD record. 43 Idem, pages 6 and 7 of the RPD record. 44 Idem, page 7 of the RPD record. 45 Idem, pages 7 and 8 of the RPD record. 46 Idem, page 8 of the RPD record. 47 Idem, pages 8 and 9 of the RPD record. 48 Idem, paragraph 19, page 9 of the RPD record. 49 Document 3: National Documentation Package on Turkey, May 3, 2013, Tab 13.1: TUR104096.E. 50 Document 3: National Documentation Package on Turkey, May 3, 2013, Tab 2.1: United States. Department of State, Turkey, Country Reports on Human Rights Practices for 2012. 51 RPD decision, pages 9 and 10 of the RPD record. 52 Junusmin v. Canada (Department of Citizenship and Immigration), No. IMM-4884-08, Shore, June 26, 2009; 2009 FC 673, at paragraph 1. 53 Maksud v. Canada (Department of Citizenship and Immigration), No. IMM-9459-03, Layden-Stevenson, February 10, 2005; 2005 FC 221, at paragraph 8. 54 Yves Ouellette, Les tribunaux administratifs au Canada. Procédure et preuve [administrative tribunals in Canada: procedures and evidence], Montréal, Les Éditions Thémis, 1997, at page 357, citing Moreno v. Canada, [1994] 1 F.C. 298, 315 (F.C.A.) and Namitabar v. Canada, [1994] 2 F.C. 42. 55 Ballesteros v. Canada (Minister of Citizenship and Immigration), No. IMM-3979-08, Lagacé, April 7, 2009; 2009 FC 352, at paragraph 22. 56 BOC Form of the principal appellant, page 25 of the RPD record. 57 United States Department of State, Bureau of Democracy, Human Rights and Labour, Country Reports on Human Rights Practice for 2012. Turkey, pages 111 to 158, at page 150 of the RPD record. 58 Immigration and Refugee Board of Canada (IRB), Research Directorate, Turkey: Situation of Kurds in western cities such as Ankara, Istanbul, Izmir, Konya and Mersin; resettlement to these cities (2009-May 2012), pages 159 to 179, at pages 159 to 162 of the RPD record (references and translation notations omitted). 59 Parampsothy v. Canada (Minister of Citizenship and Immigration), No. IMM-421-12, Mandamin, August 16, 2012; 2012 FC 1000, at paragraph 24. See also Mugadza v. Canada (Minister of Citizenship and Immigration), No. IMM-1324-07, Mandamin, January 30, 2008; 2008 FC 122, at paragraphs 20 to 22. 60 Idem. 61 Florea v. Canada (Minister of Citizenship and Immigration), No. IMM-5443-04, Lemieux, November 3, 2005; 2005 FC 1472, at paragraphs 21 to 24. Ceballo v. Canada (Minister of Citizenship and Immigration), No. IMM-773-04, Beaudry, January 21, 2005; 2005 FC 71, at paragraph 7. Canada (Minister of Citizenship and Immigration) v. Balogh, No. IMM-982-01, Heneghan, November 6, 2001; 2001 FCT 1210, at paragraph 21. Mariko v. Canada (Minister of Citizenship and Immigration), No. IMM-7190-03, Harrington, August 16, 2004; 2004 FC 1136, at paragraph 8. Arrinaj v. Canada (Minister of Citizenship and Immigration), No. IMM-224-04, O'Keefe, May 31, 2005; 2005 FC 773, at paragraph 43. 62 On the concept of implausibility, I am relying on the case law and the tests to be applied in this regard. Diaz Puentez v. Canada (Minister of Citizenship and Immigration), No. IMM-6022-06, Campbell, December 19, 2007; 2007 FC 1335, at paragraph 16, in which Justice Campbell refers to the remarks of Justice Muldoon in Valtchev v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1131, in particular at paragraph 7: "A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu (citations omitted)." 63 IRB, Research Directorate, Turkey: Situation of Kurds in western cities such as Ankara, Istanbul, Izmir, Konya and Mersin; resettlement to these cities (2009-May 2012), pages 159 to 179, at page 167 of the RPD record: "According to the political science professor at Missouri State University, Kurds do not face discrimination in access to housing anywhere in Turkey. However, according to the Former KHRP Officer, in western cities, people often do not rent out homes to Kurds. He added that Kurds have to search for sympathizers in order to find homes or shops to rent. According to the Human Rights Association, local civil authorities do not allow people to give Kurdish seasonal workers shelter in western provinces; they drive them out." (References and translation notations omitted.) 64 Idem, at pages 160 to 163 of the RPD record (citations and translation notations omitted). 65 RPD decision, paragraph 20, page 9 of the RPD record. 66 Idem, paragraph 19, page 9 of the RPD record. 67 Osama Fi v. Canada (Minister of Citizenship and Immigration), No. IMM-2091-06, Martineau, September 19, 2006; 2006 FC 1125, at paragraph 14, Justice Martineau citing a decision of the Federal Court of Appeal in Salibian v. Canada (Minister of Employment and Immigration, [1990] 3 F.C. 250, page 259 (F.C.A.), and a decision of the Federal Court in Ali v. Canada (Minister of Citizenship and Immigration), (1999), 235 N.R. 316. 68 Idem, paragraph 16, Justice Martineau's emphasis. 69 Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at paragraph 59: "...where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / Nº de dossier de la SAR : MB3-02639; MB3-02640 2