Date: 20080418
Docket: IMM-3776-07
Citation: 2008 FC 478
Ottawa, Ontatio, April 18, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
RAHIM
YURTERI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of Refugee Protection
Division of the Immigration and Refugee Board (the Board), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (Act), in which the Board found that the applicant, Mr. Yurteri,
is not a Convention refugee or a person in need of protection.
ISSUES
[2]
The
present application raises the following issue: are the Board’s credibility
findings reasonable?
[3]
The
applicant also raises the question of whether the Board erred in determining
that the treatment faced by the applicant did not amount to persecution.
[4]
For
the following reasons, the application for judicial review shall be dismissed.
FACTUAL BACKGROUND
[5]
The
applicant is a citizen of Turkey who claims refugee protection from Canada on the
grounds that he fears persecution at the hands of Sunni Muslim fundamentalists
and police and security forces because of his Kurdish ethnicity, Alevi religion
and pro-Kurdish political opinions and activities. He claims to have faced
discrimination and abuse for the majority of his life due to his ethnicity. He
claims that as a student he was often teased, insulted and beaten by Sunni Turk
students, and that he faced similar problems while performing mandatory service
in the Turkish army.
[6]
The
applicant’s claim is primarily premised on four incidents in which he was
detained, interrogated and beaten by the Turkish police while attending
pro-Kurdish events. First, on March 21, 2000, the applicant attended a Kurdish Newroz
event organized by the People’s Democratic Party (HADEP). He alleges that
participants were randomly approached and taken into custody by local police. He
was detained at the station for two days, interrogated and beaten. The police
questioned him about his background and political sympathies. Following the
incident, the applicant claims that he was stopped more frequently on the
street by police performing random security checks.
[7]
The
second incident he reported occurred on March 13, 2001, when he attended
a commemoration of the “Gazi incident”, in which several Alevis were shot by
gunmen suspected to be Sunni fanatics. The applicant was arrested and taken into
police custody once again. He was interrogated and beaten. The police accused
him of raising money for the Kurdistan Worker’s Party (PKK), considered by
Turkish officials to be a terrorist organization. He was released the following
day and was not charged.
[8]
On
May 1, 2004, the third incident occurred at an event held by the Democratic
People’s Party (DEHAP), the successor party to HADEP. The applicant was
arrested, detained for 24 hours, interrogated and beaten by the police, who
believed the Kurds attending the event were supporting the PKK. Before being
released, the applicant claims that the police warned him that he would be
subjected to police scrutiny as long as he was in Turkey.
[9]
In
March 2005, the final incident occurred at the Newroz celebration, where
the applicant was arrested, detained overnight, interrogated and beaten by the
police.
[10]
A
Turkish passport was issued to the applicant on May 24, 2005, and a Canadian
Temporary Resident Visa was issued to him on July 11, 2005. He left Turkey for Canada
on August 13, 2005 and gave notice of his intention to make a refugee claim
in Canada on August
24, 2005.
DECISION UNDER REVIEW
[11]
In
the decision dated August 23, 2007, the Board rejects the applicant’s claim and
finds that his fear of persecution by reason of his Kurdish ethnicity, Alevi
religion and pro-Kurdish political views lacks credibility and is not
subjectively or objectively well founded. The Board concludes that there was
insufficient credible evidence to establish a well founded fear, and that it is
more likely than not that the applicant’s removal to Turkey would not subject
him to a risk to his life, a risk of cruel and unusual treatment or punishment,
or to danger of torture. The following reasons are given in support of this
conclusion:
a) The Board draws
a negative inference from the applicant’s failure to mention the mistreatment
he endured during his mandatory military service to the immigration officer who
conducted the port of entry interview of September 29, 2005. The Board finds
that this allegation, contained in his Personal Information Form (PIF), is
central to his claim.
b) The Board
draws a negative inference as to the applicant’s credibility from his failure
to obtain medical reports from the doctors who he claims examined him on two
occasions following torture by the police, and from his failure to seek medical
attention on the other two occasions he claims to have been tortured. The
documentary evidence did not substantiate the applicant’s claim regarding his
inability to seek medical attention and to obtain medical records of the
torture. The Board rejects the applicant’s explanation for his failure to seek
medical attention following the last two incidents of torture. The Board notes
that the applicant and his counsel had been put on notice to file evidence
respecting central evidence of the claim because there was credibility in issue.
c) The Board
draws a negative inference from the applicant’s failure to mention in his PIF
narrative that he had paid a bribe through his cousin in order to obtain a
Turkish passport in May 2005. The Board finds the applicant’s explanation of
this omission to be unreasonable. The Board finds it implausible that the applicant
could have obtained a genuine passport by paying a bribe given his alleged
arrests, detentions and claims that the police were monitoring his activities. The
documentary evidence reveals that thorough security checks are performed prior
to issuing a passport and leaving the country. The Board determines it is
implausible that the applicant would have had no difficulties leaving Turkey with a
fraudulently procured passport.
d) The Board
draws a negative inference from the delay in leaving Turkey, despite the
alleged mistreatment, and despite the fact that he had both a Turkish passport
and a Canadian Temporary Resident Visa for over a month before he left. The Board
also draws a negative inference from the eleven-day delay in claiming refugee
protection. The Board finds these delays to be inconsistent with a subjective
fear of persecution.
e) The Board
finds that the lengthy delay in obtaining a letter dated March 5, 2007 from the
Democratic Socialist Party (DTP), a pro-Kurdish party, corroborating the
applicant’s pro-Kurdish political support, undermines the authenticity of the
letter. The Board determines that the claimant should have been able to obtain
such a letter earlier than March 5, 2007, since the applicant was put on notice
to provide evidence of his political activities in Turkey almost one
and a half years prior.
f)
The
Board examines the documentary evidence regarding the country conditions in Turkey and finds
that it does not corroborate the applicant’s claim that he was subject to
arrests, detentions and torture at the hands of Turkish police because of his
Kurdish ethnicity. The Board finds that the documentary evidence does not
indicate that Turkish citizens of Kurdish ethnicity are victims of systematic
mistreatment amounting to persecution. The Board also finds that the
documentary evidence does not corroborate the applicant’s claim of persecution
on the grounds of religion; while the Turkish government’s religious policies
are somewhat discriminatory, the Board determines that Alevis are not
prohibited from or denied the rights to freely and openly practice their
religious beliefs. The Board finds that conditions have improved in recent
years. The Board states that the documentary evidence is preferred to the
applicant’s evidence.
g) The Board
concludes, based on the documentary evidence, that while the applicant may have
been detained by the police in Turkey on the occasions alleged, they were a part
of a police initiative to preserve public order and protect the public. They
were not for the purposes of targeting the claimant because of his Kurdish
ethnicity, Alevi religion or because of his pro-Kurdish political views and
activities. The Board considers the applicant’s personal circumstances and
determines that the events alleged do not amount to persecution.
h) Finally, the
Board considers the possibility of the applicant being subjected to persecution
as a failed asylum seeker if he were to return to Turkey. The Board
considers the documentary evidence and determines that there is no such risk.
ANALYSIS
Standard of Review
[12]
The
standard of review applicable to a decision of the Board on questions of fact
is reasonableness. The jurisprudence of this Court has consistently found that
findings of fact, and more particularly credibility, made in the context of a
refugee claim, are subject to the highest level of deference (Aguebor v. (Canada) Minister of
Employment and Immigration, [1993] F.C.J. No. 732 (F.C.A)). Following the
Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick,
2008 SCC 9, determinations regarding the credibility of a refugee claimant made
by the Board, should continue to be subject to deference by the Court, and are
reviewable on the standard of reasonableness (Dunsmuir, above at
paragraphs 55, 57, 62, and 64).
[13]
For
a decision to be reasonable, there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, above at paragraph 47).
Omission of Military
Service in Port of Entry Interview
[14]
The
applicant submits that the issue of the difficulties encountered by the
applicant during his military service was peripheral to his claim, and that the
Board therefore erred by drawing a negative inference from this omission. The
applicant argues that adding details in the PIF which were not mentioned at the
port of entry interview does not indicate a lack of credibility.
[15]
The
conclusion of the Board on this point does not, in my opinion, constitute an
unreasonable error. Whether the abuse the applicant experienced while he was
performing mandatory military service in Turkey is a matter
which is central to the refugee claim, is a question of fact. In light of the
fact that the applicant’s reason for leaving Turkey is based on the continuous
and cumulative nature of the hardship he suffered, it was open to the Board to
draw a negative inference based on this omission.
Medical Treatment
[16]
The
applicant submits that the Board made a reviewable error by concluding that the
claimant’s explanation for his failure to seek medical attention in May 2004
and March 2005 was unreasonable, when the Board did not set out the explanation.
The applicant submits that his explanation was that no medical treatment was
required on these two occasions, and that this explanation was reasonable.
[17]
While
it is preferable for the Board to explicitly state the explanation being
rejected, the Board’s conclusion is not unreasonable. The negative credibility
finding made by the Board did not rest solely upon the applicant’s failure to
provide a reasonable explanation for not seeking medical treatment. Rather, the
credibility findings were based on the objective documentary evidence regarding
the medical treatment of police detainees, the applicant’s failure to provide
documentation for the occasions upon which he did seek medical attention, and
the failure to seek medical attention on two other occasions.
[18]
The
Board was entitled to draw a negative inference from the whole of the
applicant’s evidence on this point. The Board’s inference is clearly based on
the evidence before it.
Bribery to Obtain
Passport
[19]
The
applicant submits that the Board erred by drawing a negative inference from the
omission from his PIF of the fact that the applicant’s passport was obtained
through bribery. The applicant further submits that the Board seized on a minor
or peripheral omission, and displayed excessive zeal in order to undermine the
applicant’s credibility. The applicant argues that there was nothing in the
evidence to support an inference that a person in his circumstances would have
been prevented from exiting Turkey, and that the Board engaged in mere
speculation.
[20]
As
determined above, it is not the role of this Court to reweigh the importance of
the evidence. Whether the omission of the fact that the passport was obtained
using bribery is central to the claim is a determination of fact, and is best
assessed by the Board. In its reasons, the Board conducted a thorough analysis
of the documentary evidence regarding the requirements for obtaining a genuine
passport in Turkey, as well as
the security measures in place at the border. It is my opinion that the
negative inference drawn by the Board with regard to the applicant’s
credibility was justified and intelligible.
[21]
Further,
I accept the respondent’s submission that even if the omissions were peripheral,
the Board’s overall finding of credibility would not change.
Delays in Leaving Turkey and Making
Refugee Claim
[22]
The
applicant submits that he was not given the opportunity to make submissions
responding to the Board’s conclusion that a one-month delay in leaving Turkey was
inconsistent with a subjective fear of persecution. The applicant argues that
the rules of natural justice and procedural fairness require that a claimant
should be confronted with an issue before the Board makes an adverse finding of
credibility.
[23]
The
applicant further submits that the Board ignored his evidence regarding the
availability of flights; in his PIF, the applicant stated that it took a few
weeks to reserve a plane ticket.
[24]
The
applicant also contends that the Board erred by determining that the 11 day
delay in claiming refugee status after arriving in Canada was inconsistent with
a subjective fear of persecution. The applicant cites Chuop v. Canada (Minister of
Citizenship and Immigration), 2006 FC 37, at paragraph 6, in which the
Court found that the Board erred by making adverse findings based upon a short
delay.
[25]
In
addition, the applicant alleges that his explanation, that he followed the
advice of the smuggler not to make a refugee claim at the port of entry because
he would be sent back, was reasonable, and that it was unreasonable for the
Board to reject his explanation.
[26]
I
accept the respondent’s submission that the negative determination made from
the delay must be viewed in context; the decision was based on the delay to
leave Turkey earlier than August 2005 given the applicant’s history of
detentions and torture dating back to 2000, the delay to leave Turkey earlier
than August 13, 2005 given that a visa was issued on July 11, 2005, and finally
the delay in claiming refugee status. It was open to the Board to draw a
negative inference regarding the existence of subjective fear in light of these
multiple delays.
[27]
With
regard to alleged violation of natural justice arising from the applicant’s
inability to respond to the findings of the Board, I cannot conclude that there
was any such violation. While the principle remains true that the Board should
afford a claimant an opportunity to clarify any apparent contradictions or
inconsistencies in his or her testimony upon which the Board intends to
rely, the Board has no obligation to confront a claimant with its conclusions
regarding the sufficiency of the evidence. In Sarker v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 987, Justice MacKay found
the following at paragraphs 13 through 15:
[13] It is true that where the panel
is concerned or has doubt as to credibility arising from contradictions or
inconsistencies in the applicant's evidence, written and oral, it is obliged,
in fairness, to indicate those doubts or concerns, and to give an applicant a
chance to explain them, before relying on inconsistencies as a basis for
disbelieving the evidence provided (see: Ta Wei Li v. M.E.I., (1996),
109 F.T.R. 178, and Gracielome v. Canada (MEI) (1989), 9 Imm. L.R. (2d)
237 (F.C.A.)).
[14] Here the panel was not
concerned with inconsistencies in the applicant's evidence. Rather it found key
aspects of the applicant's story to be implausible given the panel's general
understanding from documentary evidence of country conditions in Bangladesh, and its own experience. The
finding that evidence is implausible is a conclusion based on assessment of its
likely veracity in all of the circumstances. That conclusion may only be
reached after the hearing is over, all the evidence has been submitted and the
panel has opportunity to consider it.
[15] In my opinion there is no
obligation on the panel to signal its conclusions on implausibility or on the
general credibility of evidence, in advance of a decision. Rather, the onus
remains on the applicant to establish by credible evidence his claim to be
considered a Convention refugee. The panel did not err, or fail to ensure
procedural fairness in concluding there were implausibilities in the
applicant's evidence without first bringing those to the attention of the
applicant and providing opportunity for him to respond. [Emphasis added]
[28]
Saker has been
cited with approval in Awoh v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1198, 2006 FC 945, at
paragraph 21 and Singh v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 1961, 2005 FC 1588, at paragraph 13.
[29]
For
these reasons, the Board did not err or violate the rules of natural justice in
its assessment of the delays in the applicant’s claim.
Delay in Obtaining
Corroborating Letter
[30]
The
applicant argues that the Board relied on an irrelevant consideration by
casting doubt on the genuineness of the letter from the DTP on the ground that
there was a delay in obtaining the letter. The applicant submits that the fact
that false documents are easily obtained in a particular country cannot
constitute a valid reason for rejecting the document submitted.
[31]
The
Board did not reject the letter simply because it determined from the
documentary evidence that false documents of this nature were easily procured
in Turkey. Rather, the
negative determination of the credibility of the letter was also based on the
incredible explanation offered by the applicant. The applicant testified that
the DTP had not been politically active in the year prior to the production of
the letter; however, the documentary evidence showed that the DTP’s
predecessor, the Democratic Society Movement (DHT) had been in existence since
October 2004. This was included in the Board’s reasons, which I find to be
justified, and intelligible.
Treatment did not Amount
to Persecution
[32]
Finally,
the applicant argues that the Board erred in law by determining that the
treatment faced by Kurds did not amount to persecution. He submits that the
Board accepted that “Kurds who publicly or politically asserted their Kurdish
identity or publicly espoused using Kurdish in the public domain risked
censure, harassment, or prosecution.” The applicant advances that persecution
can be defined as the violation of a fundamental human right, and that the
public assertion of one’s ethnic identity is such as right. Therefore, the
mistreatment of the applicant amounts to persecution.
[33]
The
respondent alleges that the applicant confuses persecution with
discrimination, and that the determination is a question of fact. It is my
opinion that the determination of whether behaviour constitutes persecution is
a mixed question of fact and law. As such, the determination of the Board on
this question must be subject to the deference of the Court, and is reviewable
on the standard of reasonableness (see Dunsmuir, above).
[34]
Persecution
has been defined by the Courts as an affliction of repeated acts of cruelty or
a particular course or period of systematic infliction of punishment. Mere
harassment or discrimination is insufficient (Rajudeen v. Canada (Minister
of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.), Olearczyk
v. Canada (Minister of
Employment and Immigration) (1989), 8 Imm. L.R. (2d) 18 (F.C.A.),
Murugiah v. Canada (Minister of Employment and Immigration) (1993), 63
F.T.R. 230 and Canada (Attorney General) v.
Ward,
[1993] 2 S.C.R. 689.
[35]
The
Board determined that the security checks and detentions of the applicant were
part of a police initiative to preserve public order and protect the public at
large, and not for the purposes of targeting the applicant because of his
ethnicity. In light of this conclusion, I believe it was open to the Board to
conclude that the incidents did not amount to persecution. The Board’s analysis
of the country conditions in Turkey and the existence of objective risk were
thorough. The Board’s determination was reasonable. The applicant asks this
Court, once again to substitute its own appreciation of the facts for that of
the Board. The Court's intervention is not warranted here.
[36]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review is dismissed. No question is certified.
“Michel
Beaudry”
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