Date: 20050506
Docket: IMM-3946-04
Citation: 2005 FC 612
BETWEEN:
EREN KURSAD ATAGUN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated April 2, 2004, wherein the Board found the applicant not to be a Convention refugee or a "person in need of protection" as defined in sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Eren Kursad Atagun (the applicant) is a citizen of Turkey. He alleges a fear of persecution and torture in Turkey on two grounds: his background as an Alevi and as a result of his evasion of military service because he claims he is a conscientious objector.
[3] The Board found the applicant not to be a credible witness, and denied his claim for refugee status.
[4] With respect to the applicant's claim based on his fear of persecution because of his Alevi religion, he testified that he had no problems in this regard in Turkey. The applicant did not contest the Board's finding on this aspect.
[5] The combination of whether the applicant had done his military service and whether he was a conscientious observer are central to his claim.
[6] The Board's finding that the applicant had done his military service in 1994 was not unreasonable, since the applicant's explanations do not adequately account for what he was doing in 1994. The applicant alleges working as a journalist, yet had no articles that he had written to prove this. Nor did the applicant have an adequate explanation as to why his father would have a press pass, and why he would not have one. It was therefore logical for the Board to conclude that the lack of documentation in regards to the applicant being a journalist undermines his credibility since it was no longer plausible that it took him longer to finish his program because he was working. That being said, it logically follows that it was also reasonable for the Board to conclude that the applicant did not attempt to express his alleged anti-State and anti-military views as a journalist and as a result was not sanctioned.
[7] Regarding the applicant's allegations that he is a conscientious objector, the Board noted that as a partial or circumstantial objector, the applicant is required to demonstrate not only the possession of such conviction but also the existence of a reasonable chance that he, if conscripted, would be required to participate in a military activity considered illegitimate under existing international standards. The circumstances under which persecution for conscientious objection can constitute persecution were laid out in Zolfagharkhani v. Minister of Employment and Immigration, 155 N.R. 311, where Justice MacGuigan, for the Federal Court of Appeal, quoted the U.N.H.C.R. Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1988, at paragraph 26 :
Where ... the types of military action with which an individual does not wish to be associated is condemned by the international legal community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could ... in itself be regarded as persecution.
[8] The applicant argues that the Board did not perform an adequate analysis as required by Zolfagharkhani, supra, however, at page 11 of its decision the Board noted that the documentary evidence does not support the fact that the Turkish military are currently engaged in such atrocities (Bakir v. Minister of Citizenship and Immigration (January 19, 2004), IMM-5709-02, 2004 FC 70). This conclusion, coupled with the Board's finding that the applicant had already done his service, reinforces the reasonableness of the Board's decision that there is no risk of persecution should the applicant be returned to Turkey.
[9] Furthermore, the applicant's two-year delay in claiming refugee status undermines his subjective fear of persecution in Turkey.
[10] It is for the aforementioned reasons that I dismiss the application for judicial review.
JUDGE
OTTAWA, ONTARIO
May 6, 2005
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3946-04
STYLE OF CAUSE: EREN KURSAD ATAGUN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 5, 2005
REASONS FOR ORDER BY: PINARD J.
DATED: May 6, 2005
APPEARANCES:
Ms. Leigh Salsberg FOR THE APPLICANT
Ms. Marianne Zoric FOR THE RESPONDENT
SOLICITORS OF RECORD:
WALDMAN & ASSOCIATES FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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