Date: 20041028
Docket: IMM-50-04
Citation: 2004 FC 1525
BETWEEN:
ARIF USTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
Overview
[1] The Applicant made his refugee claim on the basis of both his religion and of his conscientious objection to military service. These grounds were also intertwined with the claim that the Turkish law governing military service and treatment in jails were a basis of a claim being in need of protection. The Immigration and Refugee Board (the "Board") rejected the Applicant's claim which has lead to this application for judicial review.
Background
[2] Mr. Usta is a Turkish citizen and a believer in and member of Hizmet. Hizmet is said to be a movement which has Islamic, nationalist, liberal and modern characteristics and attempts to reconcile traditional Islamic values with modern life and science.
[3] Mr. Usta claimed that he had a well-founded fear of persecution in his country by reason of religion, political opinion and membership in a social group - Hizmet. He said that he fled Turkey because he was a conscientious objector who wished to avoid military service. He also claimed that if he refused to perform his military service, he would be jailed, that jails in Turkey were brutal, and that upon release, he would still be obliged to perform his military service.
[4] The Applicant outlined three incidents in each of 2000, 2001 and 2002 where he was detained by authorities because of his association with Hizmet. In two of those incidents he was also beaten with police batons.
[5] Mr. Usta married in May 2002 with the intent of he and his wife coming to Canada, however, she was unable to secure a visa. In June 2002 he was called up for duty in the military.
[6] Three days after receipt of his call-up notice, he received his Canadian study permit and arrived in Canada at the end of July. He continued to work on securing his wife's visa, which was unsuccessful. He then applied for refugee status in November 2002.
[7] The Board dismissed his claim; the basis of the dismissal can be summarized as follows:
a) the Board found his testimony to lack credibility. In particular when the Board asked him about the first and last incident that happened to him, he responded with the first and second last incident. If this had been the sole basis of rejection of the claim, this judicial review would have been granted. Of more relevance, the Board found that the lack of objective evidence of abuse and harassment of Hizmet members undermined his claim;
b) the Applicant's story was implausible since his claim of being wanted by the authorities was inconsistent with the fact that he had been released without conditions;
c) the Applicant delayed in leaving Turkey and delayed in filing his refugee claim in Canada;
d) the Applicant's fear of harm does not correspond to a Convention ground, and that documentary evidence does not show that Turkish military authorities systematically discriminate against Hizmet members;
e) the punishment which Mr. Usta faces is not disproportionate to the objectives of the law and the sentences are not so excessive as to be considered persecution;
f) that the documentary evidence does not support a claim that failed refugee claimants who attempted to evade military service, are discriminated against because of their failed claim;
g) the sanctions imposed on draft evaders are not imposed in disregard of accepted international human rights - the punishment was not so excessive as to outrage the standards of decency.
Analysis
[8] The issues raised by Mr. Usta are:
- whether the Board erred in its determination of conscientious objector;
- whether the punishment for military evasion invokes protection under section 97 of the Immigration and Refugee Protection Act (the "Act");
- whether there were sufficient cumulative errors as to justify this Court's intervention.
Conscientious Objectors
[9] The Board's finding in this respect is largely based on credibility and objective documents. This finding is subject to a standard of review of patent unreasonableness.
[10] The documentary evidence confirmed that members of Hizmet have served in the armed forces so that his objection was not based on religious grounds. His own evidence, where he expressed fear of being hurt in the military was based on the death of a Hizmet member due to a training accident and not due to deliberate action against Hizmet members.
[11] Mr. Usta's evidence was, at best, equivocal on his conscientious objector status. At times he objected to being in the military per se, at other times he claimed fear of persecution due to religion. Given the state of the evidence, it was open to the Board to make the finding it did.
Punishment
[12] The core of the Applicant's argument is that the requirement to complete military service even after serving prison time for refusing to serve, is contrary to section 97 of the Act.
[13] It must be noted that Mr. Usta would be punished because of his failure to serve, not for any beliefs he held. The Turkish law is not discriminatory per se, it is a law of general application.
[14] The Board gave proper consideration to the four principles applicable to determining whether an ordinary law of general application may constitute persecution:
After this review of the law, I now venture to set forth some general propositions relating to the status of an ordinary law of general application in determining the question of persecution:
(1) The statutory definition of Convention refugee makes the intent (or any principal effect) of an ordinary law of general application, rather than the motivation of the claimant, relevant to the existence of persecution.
(2) But the neutrality of an ordinary law of general application, vis-a-vis the five grounds for refugee status, must be judged objectively by Canadian tribunals and courts when required.
(3) In such consideration, an ordinary law of general application, even in non-democratic societies, should, I believe, be given a presumption of validity and neutrality, and the onus should be on a claimant, as is generally the case in refugee cases, to show that the laws are either inherently or for some reason persecutory.
(4) It will not be enough for the claimant to show that a particular regime is generally oppressive but rather that the law in question is persecutory in relation to a Convention ground. Zolfagharkhani v. Canada (Minister of Employment and Immigration, [1993] 3 F.C. 540, paras. 18-22 (F.C.A.).
[15] The Board also gave consideration to whether such law or its application constituted cruel and unusual treatment or punishment. The fact that the law is more harsh than laws in Canada or that Turkish prisons are not of the same standard as Canadian prisons is not sufficient to establish this ground under section 97.
[16] It is not for Canada to comment upon or give protection to those who break the law of their own land and would be subject to harsher treatment than in Canada unless such treatment rises to the level of torture, creates a risk to life or is inherently cruel. The requirement to meet one's citizenship duties, even after imprisonment, does not, in and of itself, rise to that level. It was open to the Board to find, on the evidence, that the Turkish law, its application and its consequences, including prison treatment, did not rise to the section 97 threshold.
Cumulative Errors
[17] While the Applicant relies on a number of errors in the Board's decision such as confusion over dates, number of incidents and some explanations proffered, none of these go to the core of the Board's decision. Nor do any of the errors (to the extent that they exist) constitute a denial of natural justice.
Conclusion
[18] For these reasons, this application for judicial review will be dismissed.
[19] The parties concur that this case does not give rise to a certified question.
"Michael Phelan
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-50-04
STYLE OF CAUSE: ARIF USTA v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO.
DATE OF HEARING: SEPTEMBER 1, 2004
REASONS FOR ORDER: PHELAN J.
DATED: OCTOBER 28, 2004
APPEARANCES BY:
Ms. Sylvia Valdman FOR THE APPLICANT
Ms. Sonia Barrette FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Sylvia Valdman
Ottawa, Ontario.
FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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