Date: 20050125
Docket: IMM-2005-04
Citation: 2005 FC 116
Ottawa, Ontario, this 25th day of January, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
OSMAN YASAR DAVARCI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Osman Yasar Davarci is a 29 year old citizen of Turkey and claims to be an observant Sunni Muslim, as well as a Fethullah Gulen follower. The Applicant states that by the time he left high school in 1992, he was an objector to military service because he saw his male relatives beaten by soldiers during a coup in 1980. The Applicant also objected to what the military was doing to the Kurds and claims that several of his relatives were abused for their religious beliefs.
[2] He fled Turkey after he received his draft notice, once his educational deferments had expired. He claimed a well-founded fear of persecution due to his religion, political opinion and his conscientious objection to compulsory military service and consequential draft evasion.
[3] The Board rejected the Applicant's claim due to credibility concerns.
[4] The Applicant is appealing the Board's decision in respect of the Board's treatment of his claim of conscientious objection. The Applicant asserts that the Board's assessment failed to distinguish between:
a) the Applicant's claim based on conscientious objection; and
b) the Applicant's claim based on being a military evader and the treatment he would suffer within the military.
STANDARD OF REVIEW
[5] In Bakir v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 57, 2004 FC 70, the court stated at paragraph 13, in reference to a conscientious objector claim:
In the context of this case, the issue raises a question of mixed law and fact. The standard of review applicable on questions of mixed fact and law is generally reasonableness simpliciter.
As this is the key issue, I will apply the reasonableness simpliciter standard.
ISSUE
Did the Board fail to properly analyse the Applicant's claim based on his conscientious objection?
ANALYSIS
[6] The Applicant's contention is succinctly set out in paragraphs 14 to 16 of his Memorandum of Argument which state:
14. The Board seemed to confuse to separate aspects of the claim. The Applicant claimed to be a conscientious objector due to the violations committed by the Turkish military against basic human rights. In addition, he also feared persecution if he were forced to join the military due to his religion. The Board combined these separate issues and believed he claimed to be a conscientious objector due to this feared persecution:
The Claimant fears he will be persecuted because he is an observant Muslim and would therefore not be able to practice religious observances such as namaz or fasting during Ramadan. He claims that he is a conscientious objector on the basis of his observant Muslim religion, and his following of the FG movement.
Reasons for Decision, Application Record, page 23
15. The claimant did not claim he is a conscientious objector on the basis of his observant Muslim religion or his following of the FG movement. This was a separate issue.
16. The Board had the obligation to decide the applicant's claim based on his conscientious objector claim and his fear of persecution within the military. These are two separate issues and do not overlap.
[7] It is true that the Board, in treating the Applicant's conscientious objector issue, referred to both the Applicant's aversion to the Turkish military due to human rights violations, as well as his fear of treatment within the military.
[8] An examination of the Tribunal Record shows that the Board was entirely justified in doing so, as the Applicant referred to both when asked why he fled from Turkey. He stated at p. 699 of the Tribunal record :
Q: And why didn't you want to serve in the military?
A: Reasons for not wanting returned? First reason is the Turkish military does not show respect for human rights, because I am anti-sympathetic, and third reason I am - - -
Q: Sorry, what's the second reasons.
A: Anti-sympathetic, I have no sympathy from the past, these roots from the past, non-sympathizer.
Q: Can you tell us briefly what that means?
A: The military overthrow, coup de tau of 1980, that's what I saw, I was about seven-years old. The military came to our village when I was about seven-years old, my grandfather; my father; my uncle; and my cousins; and also collecting the other male members of the village and taking us to the Centrum. They beat us - - they beat them there in the centre of the village, during those years this affects me quite a lot. Since that age I have always had no sympathy towards the military.
Q: So perhaps the English term is had antipathy toward?
A: Antipathy or hatred, yes.
Q: Very negative feeling toward. I interrupted you, you were giving us a list. You had antipathy towards the military; the military doesn't show respect for human rights.
A: Especially in the South and Southeast regions. The third reason was because I was a member, or person that dealt with Hizmet. The fourth reason would be that I cannot live my religion within the military.
[9] The Applicant further stated, in answer to a question following an account of detention as a student:
Q: So why did this make you not want to serve in the military?
A: Because the military constantly uses force, severe force. With from what I've learned and from the philosophy of life, especially from the group, Fatou la Ghulan, towards people not to use strength and I accepted this. I learned this and I accepted this, that's why my ani-sympathy grew, or antipathy grew day by day.
Q: What about your religious beliefs do they have anything to say about serving in the military?
A: My religious belief is God has given life and it will only be taken away by God, no one else has the right to, and says do not torture people.
Q: What says?
A: Islam
PRESIDING MEMBER: Who says that you can't torture?
INTERPRETER: The religion of Islam?
Q: Is that in the Koran or is this the teaching of Fatou la Ghulan; or where did it come from?
A: This was in the Koran but also taught to me by Fatou la Ghulan
[10] The Applicant's testimony shows that the issues of human rights violations by the Turkish army, (his ground for conscientious objection,) and his religious beliefs and draft evasion, (his grounds for fearing treatment within the army,) did not fall into two separate categories in his mind, but were interconnected, forming his reason for opposing military service.
[11] Not surprisingly, the Board dealt conjunctively with both issues; his conscientious objection and his fear of persecution within the military. If one segregates the issues, the Board's decision reveals that it found, with respect to his conscientious objection:
(a) The Applicant failed to demonstrate on a balance of probabilities that the childhood experience, while regretful and remembered with a sense of fear, sadness, and hatred for the military, was an overriding significant factor in his allegation that he is a conscientious objector;
(b) The Board found it implausible that a bona fide conscientious objector would remain in Turkey accepting additional education deferrals in lieu of either manifesting his objections in the country or by leaving the country to do so;
(c) The Board found the Applicant's decision to seek education deferrals to the maximum date allowed before leaving the country did not fit the profile of a conscientious objector;
(d) The Board found the Applicant's fear of extra-judiciary killings, disappearances and torture in the military to be unfounded;
(e) The Board found insufficient credible and convincing evidence to establish the genuineness of the Applicant's political, religious or moral convictions, or of the Applicant's reasons of conscience for objecting to performing military service.
Furthermore, the Board found in respect of his claim regarding treatment within the military and as a draft evader:
(a) There was no evidence before the Board to demonstrate that the punishment for military evasion was cruel or unusual;
(b) The law with respect to military evasion is a prosecutory law of general application and is not inherently prosecutory in that it applies to all Turkish citizens irrespective of their religion or political opinion;
(b) There was no evidence before the Board that the Applicant would be treated other than in accordance with the law as a military evader; and
(d) There was no evidence before the Board, which indicated that the military imposed differential restrictions on certain Muslim religious expressions and practices such as Namaz and fasting.
[12] Consequently, I fail to see how it was unreasonable for the Board to treat these two issues together, rather than treating them as separate, sequential issues as the Applicant suggests. Further, I fail to see how the Board's conjunctive treatment of these two matters in any way makes its decision unreasonable. The issues are very closely interrelated, the Board analysed both claims and rejected them on the basis of lack of credibility. A separate treatment of these allegedly separate issue would not have led to a different result.
[13] The Applicant also points to Bakir, supra, as evidence that treatment in Turkish military prisons is inhumane and amounts to persecution. However, that case made no such findings, it merely dealt with the Board's failure to consider certain evidence tendered by the Applicant regarding conditions in Turkish military prisons. As no such allegation (regarding failure to examine pertinent evidence) was raised in the present case, that case does not assist the Applicant.
[14] As the Board's decision is reasonable in this case, this application cannot succeed.
ORDER
THIS COURT ORDERS that this application be dismissed.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-2005-04
STYLE OF CAUSE: OSMAN YASAR DAVARCI v. MCI
PLACE OF HEARING: Ottawa and Toronto via videoconference
DATE OF HEARING: January 20, 2005
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice von Finckenstein
DATED: January 25, 2005
APPEARANCES:
SOLICITORS OF RECORD:
|
Mr. Alex Billingsley
Toronto, Ontario
|
FOR THE APPLICANT
|
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Mr. John H. Sims
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
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