Date:
20120829
Docket:
IMM-5854-11
Citation:
2012 FC 1034
Calgary,
Alberta, August 29, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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ALI ALTUN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
The
Applicant, Mr. Ali Altun, a Turkish citizen of Kurdish descent, submitted a
refugee claim based on alleged persecution, stemming from a criminal court
conviction and sentence in Turkey. According to the Applicant, this was due to
an alleged forgery of a document which the Applicant, a medical doctor and one
other medical doctor, had prepared and signed. Both individuals were sentenced
to two and a half years in prison in regard to a certificate of sick leave to
which the two had attested for a teacher whose identity had allegedly not been
adequately verified. The Applicant has appealed the conviction in his country
of origin but left before his appeal could be heard.
[2]
The
Applicant requests of this Court that the matter be returned to the Refugee
Protection Division [RPD] to be heard anew due to evidence which requires
analysis as to whether the charges were false, motivated by ethnic persecution
in his regard.
[3]
After
having read and heard the pleadings subsequent to having analyzed the
documentary evidence of both parties, both of a subjective and objective
documentary nature, the Court considers that the RPD did not consider the
evidence, as a whole, and, thus, it had not rendered a reasonable decision,
both in light of the significant personal evidence and its country condition
documentary context. It is recognized by this Court that, if all the documents
had been adequately considered, the reasons would have demonstrated, at the
very least, a logical inherence derived from the analysis of significant,
pertinent, detailed evidence, thus, within a framework of potential outcomes as
set out by the Supreme Court in the Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 and Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 decisions;
however, the evidence in respect of the “forgery”, itself, central to the very
core of the Applicant’s claim, cannot be said to have been assessed.
[4]
The
RPD did not examine the specific evidence in its particularities but rather
assessed the evidence in generalities without an adequate assessment of most
pertinent detailed evidence.
[5]
The
RPD stated the matter was credible and expressed sympathy for the case. In
addition, the RPD stated the allegations were trustworthy. It is difficult to
understand how the RPD was of the opinion that there was not enough evidence.
The tribunal member considered the matter as one of prosecution rather than
persecution; however, a prosecution can be persecutory if clear evidence exists
that the prosecution is not fair.
[6]
Reference
is made to the Hernandez v Canada (Minister of Citizenship and
Immigration), 2010 FC 1323 wherein the applicant was convicted in Columbia;
she was convicted because she refused to cooperate with a prosecutor; and, the
conviction was considered to have been politically motivated
[40] In this case, as will be discussed below,
there were serious questions about corruption in Colombia’s legal system at the
time of the arrest and conviction of the principal applicant. Therefore, in
light of the fact that the applicant was alleging a wrongful conviction, she
merited for her case to be further analyzed, especially considering that she
comes from a country in which the respect for the rule of law was questionable.
[7]
In
regard to country condition evidence, reference is made to the Transparency
International Report (an independent report recognized as reliable without
country self-interest in respect of respective international needs,
expectations or diplomatic subtlety) which states:
The
relatively low level of recognised corruption in the judiciary in the first 60
years of the Turkish Republic has increased in the past 20 years to the point
where opinion surveys signal a growing lack of public trust in the institution.
According to TI’s Global Corruption Barometer 2005, respondents gave the
judiciary a score of 4 on a scale of 1 to 5 (where 5 is highly corrupt).
The
increasing number of scandals in the media that involve judges and prosecutors
informs this perception. This may reflect increased corruption rather than the
increased ability of the press to report corruption, since press freedom has
not significantly increased in recent years.
Judicial
corruption exists in spite of the fact that Turkey’s constitution specifically
identifies ‘equality under the law’ and ‘independence of the court and justice
for all’ as the governing principles of the rule of law. The increased level of
perceived corruption has prompted the public to view the judicial system as the
second most corrupt sector in Turkey after the tax department.
Some
evidence exists to back up these perceptions. In a 1999 survey by Professor
Hayrettin Ökçesiz of Akdeniz University in cooperation with the Istanbul Bar,
631 out of 666 lawyers surveyed (95 per cent) said that there was corruption in
the judiciary. Professor Ökçesiz was later subjected to investigation and no
one has dared do further research. [Emphasis added].
A Court must specify that which is the
evidence. Also, recognizing that it is a renowned fact that Turkey has never
acknowledged the Armenian genocide of a million and a half Armenians
perpetrated in that country, thus, the Transparency International Report is in
the same vein as is seen in the last lines underlined above of a denial of the
present as is the Armenian genocide a denial of the past.
[8]
For
all of the above reasons, the Applicant’s application for judicial review is
granted and the matter is returned for a hearing anew (de novo) before a
differently constituted panel.
ORDER
THIS
COURT ORDERS that the Applicant’s application for
judicial review be granted and the matter be returned for a hearing anew (de
novo) before a differently constituted panel of the Refugee Protection
Division. No
question for certification.
“Michel M.J. Shore”
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