Date: 20091204
Docket: IMM-2137-09
Citation: 2009 FC 1240
Ottawa, Ontario, December 4, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
KRISTIN TETIK
EDJER TETIK
CEDAY TETIK
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants Ejder, his spouse Kristin and their son Ceday are all citizens of Turkey. They seek
judicial review of a decision of the Refugee Protection Division of the
Immigration and Refugee Board (“RPD”) dismissing their claim for refugee
protection.
[2]
For
the reasons that follow, I have come to the conclusion that this application
must be granted, first because the RPD did not consider whether the incidents
of discrimination, taken together in their totality, amounted to cumulative
persecution, and second because the RPD did not address the availability of state
protection within the context of the applicants’ specific situation.
a.
Background
[3]
Edjer
Tetik was born September 22, 1964 in Eskisehir, Turkey. He is
Muslim. His spouse, Kristin Tetik, was born November 26, 1960 in Istanbul, Turkey. She is an
Armenian Christian. Their son, Ceday Tetik, was born January 27, 1994 in Istanbul.
[4]
Ejder’s
family was not strictly adherent to the Muslim faith but they did recognize
religious holidays and celebrations. Ejder attended mosque on special occasions
but not on a regular basis. Kristin’s family is Armenian and has lived in Turkey for four
generations. She attended Armenian schools in Istanbul. Her first
language is Armenian, and she was raised according to Armenian culture,
tradition and religion, within the Armenian community.
[5]
In
1978, Kristin started university; she completed an undergraduate degree and
then started a Master’s degree. She stopped because one of her professors told
her she would not be able to finish her thesis and suggested that she join him
in a hotel room to finish her thesis there. He knew that she was Armenian and
that if she complained to university officials about his behaviour her
complaints would not be taken seriously.
[6]
Ejder
was attending university in Eskisehir and met Kristin during
the summer of 1984. When they told their families about their relationship,
both families had very negative reaction because of the ethnicity and religion
of the person their child was dating. Due to the pressure from their families,
the couple stopped seeing each other several times.
[7]
After
they had told people of their plan to marry, Kristin’s father received several
threatening phone calls, general threats and insults against Armenians. Kristin
and Ejder were eventually married on April 10, 1989. Their families did not
attend the wedding. At the city hall where the ceremony was to be held, they
were told there had been a bomb threat. They claim the threat was meant to
intimidate them because theirs was the only wedding remaining that day.
[8]
After
their marriage, the couple settled in Istanbul. Ejder continued his
work at the university in Eskisehir; when the director of
the university learned he was married, however, he was denied advancement and
promotions and was told that his relationship with an Armenian was unacceptable.
His roommates at the school also asked him to move out when they found out that
he had married an Armenian.
[9]
Ejder’s
employment at the university became miserable. Academic board members told
Ejder that he could no longer work on his Master’s degree in Istanbul, and that he
had to transfer fully to the university in Eskisehir. He was told
that the university in Istanbul, where he was doing all his research and
writing his thesis, would end his program and that he would have to start over
at the university in Eskisehir. Due to these
unreasonable demands and attitudes, Ejder quit his position as assistant
professor and stopped his Master’s degree studies in March 1990.
[10]
In
April 1990, Ejder started his military service. He felt he was treated
differently due to his known marriage to an Armenian. His spouse was denied
entry for wives visits when she showed her identity card indicating her
ethnicity. Due to a medical problem, Ejder was discharged in September 1990,
allegedly in a very humiliating way.
[11]
In
the summer of 1993, the couple’s landlord, a conservative Muslim, told them
they would have to move out unless Kristin converted to Islam, covered her hair
and lived like a Muslim. They decided to move out.
[12]
In
January 1994, their son Ceday was born. He was automatically registered as a
Muslim due to the religion of his father. With this identification, his parents
could not register him in an Armenian school. Because they believed their son
would have suffered greatly at public Muslim schools, they decided to send him
to private schools instead.
[13]
In
1998, the couple opened a home furnishing store. They experienced harassment on
several occasions. A group of four or five young men would insult Kristin and
intimidate her by making a mess in the store, and they would be loud and
aggressive. Ejder once complained to the police; they came and wrote notes but
took no further action.
[14]
The
first five years of elementary school were mostly positive and peaceful. But
when Ceday was in grade 6, the school was purchased by a more religious group
and Ceday was no longer allowed to opt out of religion class as he had in the
past. He had to start memorizing passages from the Coran and the teacher told
him that he “would become a Muslim”. He was also told to use the Turkish word
for “mother”. Several times he was slapped by the teacher. Ejder went to the
school to complain about the teacher but nothing was done in response.
[15]
In
January 2007, Hrant Dink, a famous Turkish-Armenian intellectual and advocate
for minority rights in Turkey, was murdered by ultranationalists. After
Hrant Dink’s assassination, tensions rose in Turkey between ultra-nationalists
and Armenians, and threats were made to Armenian schools.
[16]
In
March 2007, Kristin was physically assaulted in her home by the brother of her
housecleaner, an ultranationalist. The following day, Ejder was assaulted on
the street by strangers. They insulted his wife, pushed and threatened him with
a knife. The applicants complained to the police. The police arrived an hour
and a half later and wrote a report on a plain piece of paper which did not
look very official; the applicants claim the police did not take the complaint
seriously and never did a follow-up.
[17]
After
these incidents, the applicants started receiving threatening telephone calls
about two or three times a week at home, and Ejder received similar threats at
work.
[18]
In
August 2007, the applicants moved to a new home. While at home one day, Kristin
noticed three young men wearing white woollen hats (which had become the symbol
of all those who supported the teenager who initially claimed responsibility
for the murder of Hrant Dink and, by extension, of the ultranationalist
movement) walking around the building. They were chanting “we are Turkish” and
threw rocks through the window.
[19]
After
that incident, the applicants felt that they had no choice but to leave Turkey in order to
be safe. In September of 2007 they applied for visitor visas at the U.S.
Embassy in Istanbul. On October
12, 2007 they left Turkey for the U.S. and, on or about October 15, 2007,
applied for visitor visas at the Canadian Consulate in New York. They
arrived in Canada on October
20, 2007 and initiated refugee protection claims on October 29, 2007.
II The impugned decision
[20]
The
RPD acknowledged the problems faced by minorities in Turkey, more
particularly the Armenians. It also recognized the difficulties personally
faced by the applicants as an intermarried couple. It did not question the fact
that their families have ostracized them, and that their child’s identity as a
non-practicing Muslim and Christian in Turkey is a concern
for the couple, who also fears that military service may be difficult for their
child since he is not circumcised and does not wish to be. The RPD also
accepted that the applicants experienced discrimination in their career, by
their family and by their landlord.
[21]
The
RPD nevertheless found that the discrimination experienced by the applicants
does not amount to persecution, and that they do not face a serious possibility
of persecution. The RPD came to that conclusion because in its view, the harm
suffered or anticipated by an individual must be serious and systematic to be
considered persecution. To quote from the RPD, “[T]he seriousness of the harm
and the cumulative effect of a number of discriminatory acts distinguish
persecution from conduct which is merely discrimination or harassment.” (at
para. 21).
[22]
The
RPD then reviewed the incidents of discrimination encountered by the applicants
and made the following findings:
·
The
ostracism they experienced from their family is not the kind of cumulative
discriminatory acts which are taken into account by the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA)..It is an
emotional strain for the applicants, but they were never threatened with any
physical harm by their families, and therefore they never faced a serious
possibility or reasonable chance of persecution by their families.
·
The
applicants were discriminated against when they pursued their Masters’ Degrees.
Documentary evidence indicates that non-Muslims are excluded from important
positions in some sectors of the job market, but this kind of discrimination
faced by minorities is not systematic and collective, but ad hoc and
individual. It is therefore not surprising that certain individuals in the
applicants’ universities made it too difficult for them to continue their
studies, but there is no evidence that the discrimination they both faced is
systemic and serious. Despite the discrimination in some higher level of
governmental and security positions, minorities in Turkey are not
persecuted in the workplace.
·
The
incidents experienced by Ceday in kindergarten do not even constitute
discrimination. It may be insensitive of the teacher to force the child to use
the Turkish word for mother, but it is not discriminatory. Likewise, religious
expressions are common in countries where a certain religion is the majority
religion.
·
Ceday
will not be persecuted in the military for being considered a Christian. While
one document mentions that Christians are often discriminated against and
physically attacked in the Turkish military, the RPD prefers to give probative
value to a document prepared by the Netherlands embassy. That document
states that Christians experience harassment in the military very occasionally
and no forced circumcisions have occurred for some years.
[23]
The
RPD also found that there is adequate state protection in Turkey from the
harm the applicants fear from ultranationalists. In this respect, the RPD came
to the following conclusions:
·
The
documentary evidence establishes that in the last ten years an increase of
violence against Christians occurred in Turkey. In 2007 the
Turkish government acknowledged the increase of attacks against non-Muslims. In
2008, the government issued a report accusing the security forces of knowing
about the plot for the murder of Hrant Dink and doing nothing to prevent it. However,
the evidence also demonstrates that the government took all necessary measures
to prevent further anti-minorities incidents.
·
No
state can provide perfect protection. There were instances where the police did
not investigate crimes perpetrated against Christians. Nonetheless, the
authorities for the most part take this situation seriously.
·
The
applicants did not take sufficient steps to obtain state protection. Kristin
never contacted the police for protection with respect to the assaults and
threats they were subjected to, even if she had a very good idea of who
assaulted them. Even when Ejder allegedly reported to the police the assault
that occurred on the street, he did not say in his PIF nor did he testify that
he ever told the police the identity of at least one of the men who he strongly
suspects had attacked him, and did not follow up on the investigation with the
police.
III The Issues
[24]
The
applicants have raised two issues in their application for judicial review:
1)
Did the RPD err by failing to consider whether the various incidents of
discrimination experienced by the applicants cumulatively amounted to
persecution?
2)
Did the RPD err in finding that state protection was available to the
applicants?
IV Analysis
[25]
There
is no issue between the parties as to the applicable standard of review. The
identification of persecution behind incidents of discrimination or harassment
is a question of mixed fact and law and, as such, is reviewable on a standard
of reasonableness: Liang v. Canada (Minister of Citizenship
and Immigration), 2008 FC 450, [2008] F.C.J. No. 572 at paras. 12-15; Mohacsi
v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 429, [2003] F.C.J. No. 586, at
para. 35. It is also well-established that the appropriate standard of review
on the issue of state protection is also one of reasonableness: Mendez v.
Canada (Minister of
Citizenship and Immigration), 2008 FC 584, [2008] F.C.J. No. 771, at
paras. 11-13. When reviewing a decision on the standard of reasonableness, the
analysis must be concerned with the existence of justification, transparency
and intelligibility within the decision-making process, and also with whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law: Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] S.C.J. No. 9 at para. 47.
[26]
It
is by now well established in the jurisprudence of this Court and of the Court
of Appeal that where the evidence establishes a series of actions characterized
as discriminatory, there is a requirement to consider the cumulative nature of
these actions. The United Nations High Commissioner for Refugees has published
the Handbook on Procedures and Criteria for Determining Refugee Status under
the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHC
Handbook) to provide guidance for the consideration of refugee and asylum
claims, including those involving persecution based on the cumulative effects
of discrimination. The relevant paragraphs read as follows:
(2)
“well founded fear of being persecuted”
(b)
Persecution
(…)
52.
Whether other prejudicial actions or threats would amount to persecution will
depend on the circumstances of each case, including the subjective element to
which reference has been made in the preceding paragraphs. The subjective
character of fear of persecution requires an evaluation of the opinions and
feelings of the person concerned. It is also in the light of such opinions and
feelings that any actual or anticipated measures against him must necessarily
be viewed. Due to variations in the psychological make-up of individuals and in
the circumstances of each case, interpretations of what amounts to persecution
are bound to vary.
53.
In addition, an applicant may have been subjected to various measures not in
themselves amounting to persecution (e.g. discrimination in different forms),
in some cases combined with other adverse factors (e.g. general atmosphere of
insecurity in the country of origin). In such situations, the various elements
involved may, if taken together, produce an effect on the mind of the applicant
that can reasonably justify a claim to well-founded fear of persecution on
“cumulative grounds”. Needless to say, it is not possible to lay down a
general rule as to what cumulative reasons can give rise to a valid claim to
refugee status. This will necessarily depend on all the circumstances,
including the particular geographical, historical and ethnological context.
(c)
Discrimination
54.
Differences in the treatment of various groups do indeed exist to a greater or
lesser extent in many societies. Persons who receive less favourable treatment
as a result of such differences are not necessarily victims of persecution. It
is only in certain circumstances that discrimination will amount to
persecution. This would be so if measures of discrimination lead to
consequences of a substantially prejudicial nature for the person concerned,
e.g. serious restrictions on his right to earn his livelihood, his right to
practise his religion, or his access to normally available educational
facilities.
55.
Where measures of discrimination are, in themselves, not of a serious
character, they may nevertheless give rise to a reasonable fear of persecution
if they produce, in the mind of the person concerned, a feeling of apprehension
and insecurity as regards his future existence. Whether or not such measures of
discrimination in themselves amount to persecution must be determined in the
light of all the circumstances. A claim to fear of persecution will of course
be stronger where a person has been the victim of a number of discriminatory
measures of this type and where there is thus a cumulative element involved.
(my
emphasis)
[27]
This
requirement reflects the fact that prior incidents are capable of forming the
foundation for present fear. In the case at bar, this analysis was particularly
important not only because of the number of discriminatory actions committed
against the applicants, but also in light of the RPD’s conclusions that
Christians in Turkey often face
discriminatory practices. The RPD was obviously aware of the cumulative
persecution test, but in fact did not review the discriminatory acts as a whole
and proceeded sequentially through the chronology recounted by the applicants
without appreciating the totality or cumulative effect of their uncontradicted
evidence about the treatment that they had endured. This was a crucial error. In
a similar case involving a Turkish refugee status claimant who had converted
from Islam to Christianity, Justice Eleanor R. Dawson wrote:
9. However, it is insufficient for the RPD
to simply state that it has considered the cumulative nature of the
discriminatory acts. The reasons of the RPD are to the following effect:
- to be considered persecution, the
mistreatment suffered or anticipated must be serious;
- the incidents referred to by the
claimant each may amount to discrimination or harassment, for example social
isolation by family, or shunning by society. They do not amount to persecution;
and
- the harm feared does not amount to
persecution because it does not violate a fundamental right, the harm feared is
not serious and the documentary evidence does not support the harm feared on an
objective basis.
10. Such analysis completely failed to
consider the cumulative effect of the conduct characterized by the RPD to be
discriminatory or harassing, as required by the Federal Court of Appeal in
Retnem, and as explained in the Handbook on Refugee Status. Finding that the
current situation facing Christians in Turkey does not violate a fundamental right is
a separate issue from the issue the RPD was required to determine: whether the
cumulative effect of discriminatory acts amounted to persecution.
Mete v. Canada (Minister of Citizenship and
Immigration),
2005 FC 840, [2005] F.C.J. No. 1050. See also: Munderere v. Canada (Minister of Citizenship and
Immigration),
2008 FCA 84, [2008] F.C.J. No. 395 at para. 39; Tolu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 334, [2002] F.C.J.
No. 447 at paras. 19-20.
[28]
Even
in the individual analysis of some of the discriminatory acts, the reasoning
was deficient. In paragraph 23 and 24 of the decision, the RPD discussed the
discrimination of minorities in the job market and in the academic field. The
RPD found that there is no cumulative persecution in this context because the
discrimination against minorities is not systematic and collective, but ad
hoc and individual. In other words, the RPD inferred that the harm
resulting from the discrimination to which the applicants were exposed was not
serious and systematic because the group to which they belong is not
collectively and systematically discriminated against. But these criteria are
no where to be found in the UNHC Handbook or in the jurisprudence of this Court
or of the Court of Appeal. What must be assessed is whether the incidents of
discrimination give rise to a reasonable apprehension of persecution in the
minds of the applicants. The fact that other members of the same minority to
which they belong have been exposed to similar measures of discrimination may reinforce
their feeling of persecution and insecurity, but it is not an essential
ingredient of the analysis.
[29]
Furthermore,
I agree with the applicants that the RPD did not consider the most serious
harassment acts in the persecution analysis, but only in the state protection
part of its reasons. The RPD focused on the minor incidents and on the events
that do not even constitute discrimination (ostracism by the families, Ceday’s
treatment in kindergarten) in the part of its reasons dealing with persecution.
The more serious incidents of threats and assaults were discussed but only in
the context of state protection. The physical assaults they have suffered
should have been considered in the cumulative effect analysis; failing to do so
means that the RPD did not consider the totality of the circumstances before
concluding there was an absence of persecution.
[30]
For
all of the foregoing reasons, I am of the view that the RPD’s analysis was
flawed. Despite its assertion to the contrary, the RPD failed to apply the
proper legal test as to what constitutes persecution on cumulative grounds, and
its decision must therefore be set aside.
[31]
The
analysis of the RPD concerning state protection is also flawed in some respects.
In Canada (Attorney
General) v. Ward, [1993] 2 S.C.R. 689, the Supreme Court stated
that only in situations in which state protection might reasonably have been
forthcoming will the failure to approach the state for protection defeat a
refugee protection claim. A claimant will not meet the definition of Convention
refugee where it is objectively unreasonable for the claimant not to have
sought the protection of her or his home authorities. A presumption of state
protection can be rebutted by both the claimant’s own evidence concerning his
or her inability to obtain state protection, as well as by evidence of
similarly situated individuals who themselves were unable to obtain such
protection. The issue of the availability of state protection must be addressed
within the context of a claimant’s specific situation.
[32]
The
applicants claim that the RPD failed to address the question of whether it was
reasonable for the applicants to have sought protection or not. Indeed, this
was the crucial issue. While reports of some security measures being taken in
various cities are noted by the RPD, there is no indication that these same
measures are being taken in Istanbul, where the applicants
and the large majority of Armenians reside. Moreover, the RPD acknowledged that
the violence against non-Muslims has increased in Turkey during the last ten
years, but then stated that since 2007, the authorities are taking measures to
address this issue, that “the police, for the most part, do arrest suspects”,
“[t]he courts do convict suspects when appropriate, and offenders are sentenced
to lengthy jail terms”, and “the police and the courts are for the most part
taking these crimes seriously”. As important as these conclusions are, they
appear to be based on a vague reference to a document listed in the National
Documentary Package, without any details. There is no discussion of the
substantial body of evidence that undermines the RPD’s conclusions.
[33]
Although
the RPD had the discretion to give more weight to some evidence than others,
when it states that the authorities do not always act to protect minorities and
then jumps to conclude there is adequate protection available to the
applicants, something is missing in the reasoning. If, as the RPD claims, a
review of the documentary evidence shows that the police and the courts are
taking these crimes seriously, it should have substantiated its claim by
referring more precisely to the documentary evidence instead of merely
referencing the US Department of State Report of 2008 without even pointing to
a particular page or section of that document. Equally problematic in the RPD’s
examination of the supposed improvements in state protection is the fact that
it did not deal with the discrimination and persecution experienced by
Armenians in particular.
[34]
Finally,
the RPD erred in stating that the applicants complained only once to the police
and did not follow up on their complaint. Ejder complained twice, once after
Kristin was insulted and intimidated at their store and then after Ejder was
assaulted on the street. It is true that he did not give a lot of details about
the person he suspected and did not inquire about the investigation. But
considering the long history of discrimination experienced by the applicants, and
the fact that the complaints they had made to the police on two separate
occasions had produced no results, was it objectively unreasonable for the
applicants not to have approached the authorities again for protection when
their home was attacked? In failing to approach the issue in light of the
applicants’ specific situation and circumstances, the RPD committed a
reviewable error.
[35]
For
all of the foregoing reasons, this application for judicial review is granted. The
parties have not requested that I certify a serious question of general
importance, and I do not find that such a question arises in the instant case.
JUDGMENT
THIS COURT
ORDERS
that the application for judicial review is allowed, the decision of the
RPD is set aside, and the matter is remitted to another panel of the Board for
redetermination.
“Yves de Montigny”
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