Date: 20081127
Docket: IMM-5395-07
Citation: 2008 FC 1328
Ottawa, Ontario, November 27,
2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ERTAN
AYILAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ertan
Ayilan applies for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (the “Board”) dated December 3,
2007. The Board decided that Mr. Ayilan had not established a well founded
fear of persecution, or of risk of cruel or unusual treatment or punishment, or
of torture under sections 96 and 97 of the Immigration and Refugee
Protection Act, (the Act) 2001, c.27.
[2]
I
have decided that the application for judicial review succeeds in part for reasons
that follow.
BACKGROUND
[3]
Mr.
Ayilan is a Kurd from Bingol in southeast Turkey. He was an
active supporter, though not a member, of HADEP a pro-Kurdish party; he says he
became a member of DEHAP, a successor party. Mr. Ayilan says that he was
arrested and detained first in 1995 when he was rounded up along with other
villagers by the military and again in 1999 when he was arrested by the police in
Istanbul during Newroz
celebrations. In 2001, he says he fled the police in Bingol while distributing
protest flyers for HADEP and he decided to leave Turkey after a
companion was arrested.
[4]
Mr.
Ayilan left Turkey for Israel in 2001. He
returned in 2005, stayed two months and left again for Israel. In June
2005, he travelled to Canada on a false passport and made his claim for
protection in Canada on July 3,
2005.
[5]
Mr.
Ayilan claims that as a supporter of HADEP he has been subject to attention by
Turkish authorities. He fears he would be persecuted if he returned to Turkey.
[6]
The
Board accepted that Mr. Ayilan was a Kurd from southeast Turkey. The Board
found that Mr. Ayilan did not give a credible account of his association with
HADEP. It found he did not provide credible evidence to prove the police’s
interest in him. The Board gave no weight to his DEHAP membership form noting
discrepancies in the document which were not sufficiently explained. The Board
found it significant that Mr. Ayilan had not lived in Turkey since
February 2001 except for a two month period in 2005. Since there was
insufficient credible evidence that the police had an interest in Mr. Ayilan
because of his political activities, the Board decided that he was not a Convention
refugee, nor a person in need of protection.
ISSUES
[7]
The
issues in this judicial review are:
1.
Did
the Board err in deciding the evidence was insufficient to prove Mr. Ayilan was
the subject of police interest?
2.
Did
the Board fail to consider relevant evidence in the section 97 analysis?
STANDARD OF REVIEW
[8]
The
Board’s assessment of factual evidence is to be reviewed on the standard of
reasonableness. Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427, at para. 15.
[9]
The
Board’s assessment of the factual evidence with respect to the risk of
persecution that Mr. Ayilan would face on return to Turkey should also be
assessed on the standard of reasonableness. Sivanathan v. Canada (Minister
of Citizenship and Immigration),
[2006] F.C.J. No. 1199, at para. 7.
ANALYSIS
Did
the Board err in deciding the evidence was insufficient to prove Mr. Ayilan was
the subject of police interest?
[10]
Mr.
Ayilan submits that the Board erred in that it failed to give due weight to his
membership documentation, in particular:
a. The
genuineness of the application form was not questioned;
b.
The
original, filed at the hearing, bore a DEHAP stamp overlaying a photo of Mr.
Ayilan;
c.
The Board
ought not to have disregarded the DEHAP documentation simply because his
address was listed as Karakocan, Turkey when he claimed to be
living in Israel. Mr. Ayilan explained that
the membership form lists a member’s home town for membership purposes. He
submits there is nothing implausible about DEHAP requiring a home address.
He submits that the evidence of DEHAP membership
was reliable and relevant to his claim and that the Board did not refer to any
evidence to call his membership into question.
[11]
The
Board based its decision on more than just the evidence of DEHAP membership.
It considered his treatment in school and in the military to be less than
persecutory. It found his claim of political activism was not credible because
Mr. Ayilan had been vague and unable to provide specific answers about HADEP,
not only at the hearing but also at the Port of Entry. The Board dealt with the
2003 DEHAP membership form by questioning why Mr. Ayilan’s home address was
listed in Turkey at a time
when he lived in Israel. The Board rejected his explanation of the
contradiction.
[12]
In
Rahmaty v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 635, at para. 7, an applicant’s
claim was rejected for lacking credibility where the applicant did not
demonstrate sufficient detailed knowledge of the circumstances claimed. Considering
the deference due to the Board on findings of fact, Dunsmuir at paras.
47-48, I consider the Board’s findings reasonable.
Did the Board fail to
consider relevant evidence in the section 97 analysis?
[13]
Mr.
Ayilan submits the Board erred in giving little or no weight to his evidence
with respect to the risk he faced on return to Turkey. The
evidence was:
a.
his membership
in DEHAP; including an affidavit by an acquaintance;
b.
the
medical evidence submitted in support of a claim to being abused by Turkish
authorities.
c.
the
documentary evidence concerning treatment of Kurds.
[14]
I
have found the Board’s finding, that the evidence of Mr. Ayilan’s political activities
was insufficient, to be reasonable. My view does not change with specific
consideration of either the acquaintance’s affidavit or the medical evidence.
The affiant attests to Mr. Ayilan’s political activity but the Board based its
finding on Mr. Ayilan’s own lack of knowledge about HADEP which has a high
level of relevance to the issue. The medical evidence is of limited probative
value given the medical examination of a scar was done years after the alleged
event. The doctor had stated that the injury was compatible with the claim of
mistreatment. The medical report was not contemporaneous with the time of
injury and mere compatibility was not proof in itself that the injury was
caused by mistreatment.
[15]
What
remains, and is of importance, is the Board’s treatment of the documentary
evidence. As a result of the Board’s finding that Mr. Ayilan would not be of
interest to the police, he was left with a profile of being a Kurd from
southeast Turkey who spent
time outside of the country.
[16]
Mr.
Ayilan referred to a number of country documents related to the situation of
Kurds and Kurdish political parties in southeast Turkey. In Mr.
Ayilan’s documentation package, a number of documents address this subject matter:
TUR42991.E – Turkey National Documentation
Package
During the
period covered by this Response (January 2003 to September 2004) numerous DEHAP
members and supporters were detained or arrested by Turkish authorities for
shouting pro-PKK slogans during demonstrations (Anatolia 26 Jan. 2003; ibid. 11
Nov. 2003; ibid. 21 Feb. 2004; ibid. 9 June 2004; Turkish Daily News
12 June 2004), for "propagandizing for the [PKK] terrorist
organization" (Anatolia 29 Mar. 2003; Turkish Daily News 31 Mar.
2003; Anatolia 19 Sept. 2003a), for protesting against the prison conditions of
the PKK leader, Abdullah Ocalan (AFP 19 Sept. 2003; ibid. 12 Nov. 2003), for
engaging in an advocacy campaign towards a general amnesty for detained DEHAP
members (Anatolia 19 June 2003; ibid. 28 June 2003), for holding illegal
demonstrations (Anatolia 6 July 2003; ibid. 5 Jan. 2004; ibid. 21 Feb. 2004)
and other related reasons (Anatolia 19 Sept. 2003b; ibid. 24 Oct. 2003; ibid.
17 Apr. 2004; Turkish Daily News 19 Apr. 2004; Country Reports 2003
25 Feb. 2004, Sec. 2.a). The Economist reported that according to Diyarbakir's DEHAP
mayor, Feridun Celik, 600 DEHAP members and supporters were arrested between
January and August 2003 (2 Aug. 2003). Between September and November 2003,
DEHAP alleged that over "1,000 participants in a DEHAP campaign calling
for an amnesty for PKK/KADEK members" were detained by the police and
although most were released, charges were laid against more than 100
participants (Country Reports 2003 25 Feb. 2004, Sec. 3).
Amnesty
International – Application Record at 78
Police also regularly used disproportionate
force against demonstrators, particularly targeting leftists, supporters of the
pro-Kurdish DEHAP, students and trade unionists…
US
Department of State Report,
Turkey 2006 - Application
Record at 50
c.
Torture and Other Cruel, Inhuman, or Degrading Treatment or punishment
The
constitution and law prohibit such practices; however, members of the security
forces continued to torture, beat, and otherwise abuse persons.
Incidents
of torture and abuse declined during the year but remained a problem. There was
a decline in the severe ill-treatment that prisoners encountered in prior
years, but incidents of ill-treatment during police/gendarmerie custody
continued, according to the Council of Europe's September 6 report on the
European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT). Courts rarely convicted security officials
accused of torture and tended to issue light sentences when they did convict
(see section 1.d.).
According
to the HRF, there were 338 cases of torture or abuse reported at its five
national treatment centers during the year. Of these, 227 cases involved
torture or abuse inflicted during the year; the rest involved incidents that
occurred previously. HRF stated that there were 10,449 credible reports of
torture or abuse from 1990 to 2005. A number of human rights observers claimed
that only a small percentage of detainees reported torture and abuse because
they feared retaliation or believed that complaining was futile.
Asylum
Seekers from Turkey, November 2002 – Certified Tribunal
Record:
…Returned person are at risk of mistreatment
in order to ascertain with whom they have been consorting during their period
of asylum application…the police can detain and mistreat a returnee on
the grounds of coming from a notorious district, for example Pazarcik in
K.Maras, or of implicitly being an Alevi Kurd, or of being a supporter
of HADEP…
…Being Kurdish places a returned asylum
seeker at greater risk of mistreatment than being Turkish. Without travel
documents he will be thoroughly checked, first at the airport and if there is
an apparent need for further investigation, at the notorious
political/anti-terror police headquarters on Vatan Cadessi. Torture is likely
in either location. It is not actual anti-State activities either in Turkey or Europe which place a
returned asylum seeker at risk. It is a wider danger, for example, the
suspicion that returnee holds anti-State views or may have committed anti-State
activities, or the activities of a returnees relatives or his place of birth
which may place a returnee in jeopardy of torture. (underlining added)
Mr. Ayilan submits that the above country
documentation supports his submissions that he is at risk if returned to Turkey.
[17]
The
Board’s negative credibility finding that Mr. Ayilan had not proved he was politically
active means that the documentary evidence relating to Kurdish political
activity is irrelevant.
[18]
The
Board makes a very brief reference to the document package. It stated:
“The documentary evidence does not
support a finding that, on a balance of probabilities, he will be persecuted
for being of Kurdish ethnicity.”
[19]
The
Respondent submits the Board is presumed to have taken all the evidence into
consideration whether or not it indicates having done so in its reasons. Florea
v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598, (F.C.A.). Further, the
Respondent submits “the fact that some of the documentary evidence is not
mentioned in the Board’s reasons is not fatal to its decision.” Hassan v. Canada (Minister of
Employment and Immigration) (1992), 147 N.R. 317 at para. 3.
[20]
The
Board did accept that Mr. Ayilan was a Kurd from southeast Turkey. It
accepted that he may have been discriminated against in the past but that
discrimination had not risen to the level of persecution. What the Board has
not done is address the documentary evidence that suggests Kurdish returnees
who are from southeast Turkey may face risks not faced generally by other
individuals in that country. In Kilic v. Canada (Minister of
Citizenship and Immigration), 2004 FC 84, at para. 27, Justice Mosley stated:
27. In my opinion, the Board in this
case did not address the country documentation and other evidence related to
prison conditions in Turkey and failed to consider whether the applicant could
be a "person in need of protection" if returned to that country, in
light of the possibility that he may face a "serious prison sentence"
for evading Turkish military service. Despite the Board's negative
credibility findings, a separate analysis, along the lines described in
Bouaouni, supra, and having regard to the legislative wording of section 97,
may have produced a finding that Mr. Kilic was a person in need of protection.
Therefore, the result of the Board's error is unknown, and accordingly, this
application should be sent back for redetermination on this ground.
(underlining added)
[21]
Section
97(1) of the Act is to be assessed in the present or prospective sense. In Sanchez
v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 99, at para. 15, Chief Justice
Richard of the Federal Court of Appeal stated:
As such, a determination of whether a claimant is in need of
protection requires an objective assessment of risk, rather than a subjective
evaluation of the claimant's concerns. Evidence of past persecution may be a relevant factor in
assessing whether or not a claimant would be a risk of harm if returned to his
or her country, but it is not determinative of the matter. Subsection 97(1)
is an objective test to be administered in the context of a present or prospective risk for
the claimant. (underlining added)
[22]
Mr.
Ayilan presented some documentary evidence that as a Kurd from southeast Turkey he faced a
risk on return. The Board has not shown it weighed the documentary evidence of
present or prospective risk despite documentary evidence that tends to support
Mr. Ayilan’s claim to being a person in need of protection. As such, the Board
decided unreasonably. The Board’s failure to weigh the documentary evidence in
the context of a present or prospective risk under a section 97 analysis is an
error.
[23]
Given
that I have found the Board’s findings on the section 96 analysis to be
reasonable, the matter will be referred back to the Board for re-determination
on the question of present or prospective risk under a section 97 analysis
only.
[24]
I
do not consider that any question of general importance need be certified in
this application.
ORDER
THIS COURT ORDERS that
- The application for
judicial review is granted.
- The matter will be
referred back to the same or other Board for re-determination on the
question of present or prospective risk under a section 97 analysis only.
- No question of
general importance is certified.
“Leonard
S. Mandamin”
Email this Content