Date: 20040921
Docket: IMM-7834-03
Citation: 2004 FC 1288
Ottawa, Ontario, this 21st day of September, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
BULENT KOCAK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Bulent Kocak, the Applicant, is a 28-year old citizen of Turkey. He claims to have a well-founded fear of persecution by reason of his political opinion, membership in a particular social group and his conscientious objection to all wars. The Applicant also claims to be a person in need of protection owing to the risk that he will suffer cruel and unusual treatment or punishment in prison due to his desertion from military service.
[2] By decision dated September 10, 2003, a panel of the Immigration and Refugee Board (Refugee Protection Division) (the _Board_) determined that:
· the Applicant is not a conscientious objector but, in fact, a deserter;
· the Applicant would not suffer disproportionately severe punishment for the offence of desertion since the _sentence [of up to three years] for military evasion is not excessive, is not persecutory and is not cruel and unusual_; and
· there was no reliable documentary evidence to back up the Applicant's assertion that he would be subjected to torture during his term of imprisonment.
[1] The Applicant seeks judicial review of this decision.
Issues
[2] This application raises the following issues:
1. Did the Board err by misconstruing certain evidence and then relying on it in support of its decision?
2. Did the Board err by ignoring material evidence?
Analysis
[3] The standard of review in this case is that of patent unreasonableness. That is, I can only overturn the decision if I find that it is totally unsupported by the evidence. For the reasons that follow, I find that the decision of the Board was not patently unreasonable and must, therefore, stand.
Issue #1: Did the Board err by misconstruing certain evidence and then relying on it in support of its decision?
[4] The Applicant submits that the Board misstated the maximum term of imprisonment to which he would be subject upon his return to Turkey. In the Applicant's submission, Article 67 of the Turkish Military Penal Code, which provides that the penalty for leaving Turkey for more than three days without permission is imprisonment for three to five years, would be applicable. In finding that the maximum sentence would be three years, rather than five years, the Board erred. The Applicant submits that this misstated fact is central to the Board's reasoning (Abarajithan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 54 (F.C.A.) (QL); Osman v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 322 (F.C.A.) (QL). However, in my view, there was no reviewable error.
[5] It was up to the Applicant to put forward evidence to support his claim. This included evidence on the possible term of imprisonment that he would face. It was not sufficient to simply put forward a section of the Turkish Military Code that sets out a maximum sentence of five years; the Applicant had to demonstrate that he would be subject to that particular provision.
[6] The evidence on this particular point was conflicting. In his Personal Information Form (_PIF_), the Applicant wrote that the sentence would be _3 to 5 years jail term_. However, during his oral testimony, the Applicant testified, at various times, that he could be subject to everything from 6 months imprisonment to the death penalty. In addition to Article 67, which provides for a three to five year term of imprisonment, the Board also was presented with Article 66, which sets out a penalty of between one and three years. At the end of the hearing, the Board, understandably, expressed concern about the confusing evidence on the possible penalty and asked parties to address that aspect of the claim in their written submissions. Very significantly, counsel for the Applicant in his final submissions stated that the punishment for desertion is one to three years of imprisonment, citing Article 66 and not Article 67. In these final submissions, there was no reference to Article 67 or why it could apply to the Applicant. On the basis of this record and, in particular, the final written submissions of the Applicant, it was not unreasonable for the Board to conclude that the maximum sentence would be three years.
[7] In summary, the Applicant bore the onus of showing that Article 67 applied to him. He failed to do so.
Issue #2: Did the Board err by ignoring material evidence?
[8] The Board found that there was no reliable documentary evidence to back up the Applicant's assertion that he would be subjected to torture during his term of imprisonment. The Applicant submits that the Board ignored relevant evidence confirming that the torture of military deserters is commonplace, thereby erring at law (Toro v. Minister of Employment and Immigration, [1981] 1 F.C. 652 (F.C.A.) (QL); Canadian Imperial Bank of Commerce v. Rifou, [1986] 3 F.C. 486 (F.C.A.) (QL); Rostamzadeh-Jahan v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 23 (F.C.A.) (QL); Amirthanathan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1258(F.C.T.D.) (QL)). In particular, the Applicant relies on a recent decision of Justice Blanchard in Bakir v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 57 (F.C.) (QL) as a case directly applicable to the facts before me.
[9] It is clear, on the basis of the jurisprudence cited, that a tribunal will err if it fails to consider relevant evidence that points to a conclusion contrary to that reached by the Board. However, in all of the cases to which the Applicant referred, the record contained documentary evidence that was reliable and that clearly and directly contradicted the conclusions of the Board. In this case, the Applicant did not refer me to any evidence that could be described in such terms. One article pointed out by the Applicant was an internet article referring to one case of torture. That can hardly be considered to be reliable documentary evidence. One other reference was to one sentence that I would describe as a generalized statement about prison conditions. That reference does not necessarily apply to military prisons. Accordingly, on the basis of the documentary evidence of this case, I am unable to conclude that the Board erred in its conclusion.
Conclusion
[10] For these reasons, the application will be dismissed. Neither party requested that I certify a question. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed.
2. No question of general importance is certified.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7834-03
STYLE OF CAUSE: BULENT KOCAK v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 15, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
DATED: September 21, 2004
APPEARANCES:
Mr. Alex Billingsley FOR APPLICANT
Ms. Alexis Singer FOR RESPONDENT
SOLICITORS OF RECORD:
Cintosun & Associate FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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