Date: 20100401
Docket: IMM-2198-09
Citation: 2010 FC 359
Ottawa, Ontario, April 1, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
AKYOL,
SENER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
Mr.
Sener Akyol came to Canada from Turkey in 2004. He sought
refugee protection on the basis that he was at risk of persecution on political
and religious grounds at home. He also maintains that he is a conscientious
objector and would be imprisoned on his return for having failed to perform his
mandatory military service.
[2]
A
panel of the Immigration and Refugee Board dismissed Mr. Akyol’s claim. The
Board did not believe his account of events and concluded that his conduct was
inconsistent with the behaviour of a person who fears persecution.
[3]
Mr.
Akyol argues that the Board erred in its treatment of the evidence before it
and he asks me to order another panel of the Board to reconsider his claim. I agree
that the Board erred and will, therefore, allow this application for judicial
review.
II. Issue
[4]
There
is only one issue here: Was the Board’s decision unreasonable?
III. Analysis
(1) Mr. Akyol’s
evidence
[5]
Mr.
Akyol claimed that he was a member of a political party called the Freedom and
Solidarity Party (ODP). He supported the ODP while in university. He says he
was arrested in 2002 for putting up ODP posters. The police questioned and
tortured him. Two years later, he was arrested again for participating in a
demonstration. Again, he was questioned and tortured. After his release, he
decided to flee to Canada.
[6]
Mr.
Akyol came to Canada in 2004 on a student
visa. He did not apply for refugee status until 2006. His claim was based on
his fear of political persecution due to his support of the ODP. He also
alleged that he would be imprisoned under extremely harsh conditions on his
return for having failed to perform military service, as required under Turkish
law.
(2) The Board’s
decision
[7]
The
Board made several main findings:
[8]
At
the hearing of his claim, Mr. Akyol said that he and two friends had been
arrested in 2002. In his written narrative, however, he had said that it was he
and three friends. Based on the discrepancy, the Board concluded that Mr. Akyol
was not credible.
[9]
Mr.
Akyol was unable to supply any written evidence of his ODP affiliation. He
explained that he was never a member, so he could not produce a membership
card. He tried to get a letter from the ODP but, out of fear, no one wanted to
get involved. The Board found his explanation unreasonable because the ODP was
an official party and probably kept records of supporters who had been
mistreated.
[10]
Mr.
Akyol returned to Turkey in 2005 to visit his
mother, who was ill. The Board concluded that his behaviour was inconsistent
with a subjective fear of persecution. The Board felt that other evidence
reinforced its conclusion on this point – Mr. Akyol’s delay in applying for
refugee status in Canada, and his decision to take a vacation in Brazil before making his
application.
[11]
While
in Turkey, Mr. Akyol reinstated
his exemption from military service. The Board concluded that if Mr. Akyol was
really at risk of political persecution, authorities would have apprehended him
at that point.
[12]
Turkish
law allows a person to pay a fee in lieu of military service. Mr. Akyol
explained that he did not take advantage of this provision because he did not
want his parents to pay the fee and did not want to support the military
financially. The Board found his explanation unreasonable.
[13]
As I
read the Board’s decision, its findings are interconnected. For example,
because the Board did not believe Mr. Akyol’s evidence about his political
activities, it did not believe he was a conscientious objector either. In turn,
because he was not a genuine conscientious objector, the Board found that his
actions were inconsistent with those of a person who fears returning to his
country of origin.
A. Was the Board’s decision
unreasonable?
[14]
I
can overturn the Board’s decision only if it was unreasonable.
[15]
The
Board disbelieved Mr. Akyol’s claim of political persecution because he
testified that two friends had been arrested with him, which contradicted his
written narrative where he mentioned three friends. The Board is entitled to
rely on discrepancies in evidence when making an assessment of a person’s
credibility, but this minor contradiction was not a reasonable basis for the
Board’s overall conclusion that Mr. Akyol was not a credible witness.
[16]
The
Board also relied on the absence of documentary evidence from the ODP to
conclude that Mr. Akyol was not at risk of political persecution. Mr. Akyol
gave an explanation – that he could not find someone willing to prepare a
letter for him - but the Board did not respond to it. Instead, the Board
concluded that the ODP probably had records of any mistreatment suffered by its
supporters. But Mr. Akyol did not say the ODP had no records.
[17]
Regarding
the Board’s finding that Mr. Akyol had no subjective fear of persecution, the
Board found that Mr. Akyol’s mother would not have wanted him to come back to Turkey. Mr. Akyol said that he
wanted to make a personal visit to reassure her. He did not say that it was his
mother’s idea. With respect to delay in claiming refugee protection in Canada, Mr. Akyol explained
that he arrived on a student visa so he had status in Canada. There was no rush to
make a refugee claim. Regarding his holiday in Brazil, I see no contradiction
between a student taking a vacation in South America and a subjective fear of
returning to Turkey.
[18]
Finally,
regarding Mr. Akyol’s military service, there was no evidence to support the
Board’s finding that a request for an exemption would expose Mr. Akyol to
political adversaries. His request was made to the university he was attending,
not to the military or any government authority. Mr. Akyol also explained his
reasons for not paying a fee to be exempted from service. The Board noted that
Mr. Akyol did not mind his parents paying for other things, including his
holiday. This observation was not responsive to the main explanation Mr. Akyol
had given – that he did not want to support the military financially.
[19]
In
my view, in light of the evidence before it, the Board’s conclusions were unreasonable
in the sense that they fall outside the range of possible acceptable outcomes
based on the facts and the law.
IV. Conclusion and Disposition
[20]
I
find that the Board’s treatment of the evidence resulted in unreasonable
conclusions about Mr. Akyol’s risk of political persecution and his claim to be
a conscientious objector. I must, therefore, allow this application for
judicial review. Neither party proposed a question of general importance for me
to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT IS
that
1.
The
application for judicial review is allowed. The matter is referred back to the
Board for a new hearing before a different panel.
2.
No
questions of general importance are stated.
“James W.
O’Reilly”
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