Sunday, February 19, 2012

Cetinkaya—wrong definition of torture, reasonable explanation for lack of corroborating documents

Cetinkaya v. Canada (Citizenship and Immigration), 2012 FC 8

Judge: Justice Russell; Date heard: December 8, 2011; Date decided: January 4, 2012; Counsel for Cetinkaya: Alla Kikinova; Counsel for Minister: Julie Waldman; Place of Hearing: Toronto, Ontario.

The Applicant was a Turkish citizen of Kurdish ethnicity. He alleged a profile as a Kurdish activist who had been tortured by the Turkish authorities. The RPD said that he was not credible, because he had not corroborated his participation in demonstrations with documentary evidence. Furthermore, the RPD found that he had not corroborated his allegations of torture and mistreatment (beatings). This lead the RPD to find that the Applicant was intentionally misleading them. The RPD stated that if the Applicant had been tortured, he would have been more severely hurt.

The Court took issue with a number of the RPD’s findings. The court found that the RPD had unduly relied on the port-of-entry notes to impugn the Applicant’s credibility, noting:

It is an error of the RPD to impugn the credibility of the Applicant on the sole ground that the information provided by the Applicant at the POE interview lacks details. The purpose of the POE interview is to assess whether an individual is eligible and/or admissible to initiate a refugee claim. It is not a part of the claim itself and, consequently, it should not be expected to contain all of the details of the claim (see also Hamdar v Canada (Minister of Citizenship and Immigration) 2011 FC 382 at paragraphs 43 through 48, and Jamil v Canada (Minister of Citizenship and Immigration) 2006 FC 792 at paragraph 25.) (para. 51)

The Court also found that, contrary to the RPD’s findings, it was not the Applicant who said at the hearing that he was not tortured, but that rather this was a statement of the panel, and furthermore that it was statement based on a lack of understanding of what torture is.

M: So why I am trying to ask you this question. Being beaten is one thing. Being abused by the police is one thing. Torture is a very serious word. So if you were tortured you would have been very severely hurt. But since you just said there was no sign of torture that means you were beaten up by the police, correct.
I: I was beaten, they were beaten to my soft tissues, they were careful not to break my bones, when I gave in answer, and they did not like my answer, they would beat me.

So the Applicant says he was “beaten” by the police. In fact, he explained in some detail what they did to him, including falaka. It is the RPD who says he was not tortured and who makes a desperate and unavailing attempt to make the Applicant agree with its own mistaken view of what torture is. In any event, the Applicant testified that he was severely hurt. The RPD’s logic is that someone can only be tortured if the signs of the torture are visible; being severely hurt without marks on the body is not enough. There is no authority for this conclusion in law or common sense. It is also difficult to understand why the RPD thinks that being beaten up by the police cannot be torture: “Being abused by the police is one thing. Torture is a very serious word.” Torture is a serious word and, accordingly to all the evidence before the RPD, it happened to the Applicant. (paras. 52-53)

The Court noted that the Applicant’s signature at the end of the PIF does not include “declaration at the end of the document that the
information is complete, true and correct”, nor in signing it has a claimant sworn that the narrative if complete or that he has written the narrative himself (para. 55). The Applicant had, however, made such a oath about the fact that he had been tortured (para. 56). The RPD’s findings on credibility were unreasonable and therefore overturned (para. 58).

Furthermore on the RPD’s alternative findings that there was no documentary evidence to support the Applicant’s findings, the Court noted that there was corroborating evidence in that the documentary evidence described the same kind of mass arrests at Newroz as detailed by the Applicant.

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