Date: 20080526
Docket: IMM-4609-07
Citation: 2008 FC 668
Ottawa, Ontario, May 26, 2008
PRESENT: The Honourable Mr. Orville Frenette
BETWEEN:
ONUR
MAHMUTYAZICIOGLU
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review arises from a decision of Gordon McKenzie of
the Refugee Protection Division (RPD). That decision held that Mr.
Mahmutyazicioglu (the Applicant) is not a refugee or a person in need of
protection because he does not, subjectively or objectively, have reason to
fear persecution or a risk of cruel and unusual treatment or punishment or
torture based on his ethnicity, religion, or political views if he were
returned to Turkey.
I. The Refugee Claim
[2]
The
Applicant is a citizen of Turkey, a member of the Kurdish ethnic group, and
is of the Alevi religion. He claimed refugee status in Canada in March
2005, stating in his Personal Information Form (PIF) that he feared abuse or
mistreatment by the police if he were to return to Turkey. He claims
this fear based on grounds of religion, ethnicity, and political opinion.
[3]
The
Applicant’s PIF and the documentary evidence demonstrate that discrimination
against Kurds is ongoing in schools and other institutions. For example, throughout
his education, the Applicant was compelled to take Sunni religious instruction
and to recite songs and slogans which denigrated the Kurdish people. The
Applicant stated in his PIF that at his university in Ankara, Kurdish and
Alevi students were frequently stopped and questioned by police.
[4]
The
Applicant stated that on November 6, 2001, while at university, he participated
along with other minority students in a protest against the education policies
of the Higher Education Council. The police arrested some of the demonstrators
after government supporters began attacking the demonstrators. The Applicant
stated that he was arrested and held overnight, questioned and beaten before
being released the next day.
[5]
In
March 2002, he participated in an annual Kurdish celebration which he testified
was often interpreted by Turkish security forces as a political demonstration.
The Applicant stated that he was arrested at random as the police dispersed the
crowd. The police, once he was identified, became aware of his previous
detention. He stated that they questioned him about his associations, beat him,
and released him the next day.
[6]
After
his second year of university, the Applicant decided to take time off and leave
the country. He received a student visa in December 2002 to come to Canada to study English
as a Second Language (ESL). He only planned to stay in Canada temporarily.
He returned to Turkey in July 2003, apparently at the encouragement
of his parents and to see his father who had recently undergone surgery.
[7]
The
Applicant stated that, upon his return to Turkey, his bags
were searched and he was interrogated for three hours at the airport. Because
of this, he stayed in Turkey for just one month
and was nervous to leave his home during that
period. He returned to Canada in August 2003 and claimed refugee status
in March 2005. His claim is based on his religion, ethnicity and political
opinions.
[8]
The
Applicant added to his claim at the RPD hearing the explicit allegation that he
was a conscientious objector. He said that he objected to serving in the
Turkish army, but would be required to do so if he were to return to Turkey. Military
service is compulsory in Turkey for all Turkish citizens. However, an
exception can be obtained, inter alia, for educational purposes. The
applicant did obtain such an exemption for the duration of his studies.
However, but the Applicant claimed at the RPD hearing that there was now an
arrest warrant out for him because he had not shown up for his military service.
The Applicant provided no other evidence of this claim.
II. The decision under
review
[9]
The
RPD member, whose decision was accompanied by twenty-one pages of reasons, did
not find the Applicant to be credible or trustworthy and as a result concluded
that there was no subjective fear of persecution. He accepted that the claimant
may have been detained, but did not accept the allegations of abuse. Nor did
the RPD member accept that the Turkish police forces would be looking for him,
as he was able to get a passport and leave Turkey twice
without incident. The RPD member noted the lateness of the Applicant’s claim to
be a conscientious objector and the lack of substance behind this claim. The
RPD member therefore rejected the aspect of the claim based on conscientious
objector status. The RPD member also found that, if the Applicant was detained,
it was part of a general police initiative to preserve public order and that
this was not the result of targeting the Applicant on the basis of his
religion, ethnicity, or political views.
III. Issues
[10]
The
Applicant alleges the following errors in the RPD member’s decision, which I
have re-phrased slightly:
a.
The RPD erred in finding that the Applicant was not credible and
therefore that
i)
the Applicant did not have a subjective fear of persecution; and
ii)
the Applicant’s detention was not for Convention reasons;
- The RPD erred in failing to
assess the possible future risk if the Applicant returns to Turkey and
participates in activities that promote Kurdish culture, religion, or
politics;
- The RPD erred in finding that the
Applicant was not a conscientious objector; and
- The RPD did not conduct a
separate analysis of section 97 risk.
IV. Standard of Review
[11]
Most
of the issues above are based in the member’s credibility finding, which is to
be reviewed on a standard of reasonableness: see Dunsmuir v. New
Brunswick,
2008 SCC 9; Khokhar v. Canada (MCI), 2008 FC 449, [2008] F.C.J. No. 571
at paras. 17-23 (QL). With respect to the obligations to conduct a separate
analysis under section 97 and to deal with future risk, these are questions of
pure law for which less deference is required by the Court. They are reviewable
on a correctness standard: Choudhary v. Canada (MCI), 2008 FC 412,
[2008] F.C.J. No. 583 at para. 13 (QL).
V. Analysis
- Did the
decision-maker err in finding that the Applicant was not credible and that
he did not have a subjective fear of persecution?
[12]
The
RPD member considered the Applicant’s claims but determined that, contrary to
those claims, the Turkish authorities were not attempting to persecute the
Applicant. At para. 33 of his reasons, the member stated:
In summary, given the totality of my
negative findings respecting the central elements of the claimant’s refugee
protection claim, and my analysis of the documentary evidence before me on the
treatment of Kurdish and Alevi citizens of Turkey, I do not believe that the
claimant was the victim of systematic ethnic, religious or political harassment
at the hands of Sunni Muslim fundamentalists, Turkish nationalists or that he
was subjected to acts of police brutality in November 2001 and March 2002 by
reason of his partial Kurdish ethnicity, Alevi religion and his leftish or
pro-Kurdish political views and activities in Turkey as is alleged.
[13]
The
RPD member based this conclusion on the fact that the Applicant was allowed a
passport and was permitted to leave the country twice; on the inconsistencies
in the Applicant’s evidence; and on the Applicant’s considerable delay and
re-availment before claiming refugee protection.
[14]
The
Applicant submits that the RPD member erred in basing his negative credibility
finding on his conclusion that the Turkish officials would not have issued him
a passport or allowed him to leave the country if he was wanted by the police. The
Applicant submits that this is in error because there is no evidence that those
who are arrested but not charged for being involved in Kurdish activities would
be denied passports. The Applicant submits that “if one is not the subject of
an investigation, the passport will be issued.”
[15]
With respect to subjective fear, the Applicant submits that the
RPD decision fails to explain how it could find no subjective fear when it has
already found plausible that he was detained. The Applicant also submits that it
was an error for the member to consider re-availment in 2003, when the
Applicant testified that he did not begin to have a subjective fear until
later.
[16]
The Applicant alleges that the RPD member erred in finding that
the police arrested the Applicant for the purpose of preserving public order.
The Applicant submits the purpose of his detainment was to suppress the
promotion of Kurdish cultures and leftist political opinion.
[17]
The Respondent submits that the issuance of a passport was not the only
reason why the Board did not believe the Applicant’s allegations of beatings
and torture. The Respondent submits that other omissions, inconsistencies and
implausibilities were considered: the delay in leaving Turkey; re-availment;
and the delay in claiming protection in Canada all contributed to the negative
credibility finding. The Respondent submits that it was not an error to rely on
the omission from the Port of Entry (POE) notes of the harassment and of his
objection to military service as demonstrative of a lack of credibility.
[18]
The Respondent notes that the Applicant does not challenge the
finding that the delay between 2003 and 2005 was significant. The Respondent
also argues that the delay from 2002 is significant.
[19]
I
agree with the Respondent that the passport issue was not the sole basis from
which the RPD member drew his conclusion that the Applicant was not credible.
Although it is somewhat convoluted, I am also convinced that the passport
aspect of the decision was reasonable.
[20]
The
essence of the RPD member’s decision with respect to the passport is that if
the Applicant was under any kind of serious watch by the authorities, then he
would not have been free to obtain a passport and leave the country twice.
Since he was able to do these things, the member said, it is implausible that
the police would still be looking for him and persecuting him if he were to
return. As the Applicant himself pointed out, if he were under investigation,
they would not have allowed him to leave. This leads to the inference that the
police have no serious interest in the Applicant. This is not an unreasonable
conclusion.
[21]
With
respect to detainment, the documentary evidence suggests that freedom of
assembly is not a well-protected right in Turkey. The Country of Origin report
of 2005 (several years after the Applicant alleges that he was detained) notes
that public demonstrations are less restricted than in the past, but noted that
there is cause for concern. In 2005 a Women’s day march was dispersed with
teargas and violence; with respect to other public gatherings, police had
“repeatedly used unnecessary force to break up peaceful demonstrations”,
“police killed demonstrators during the year… Police beat, abused, detained, or
harassed some demonstrators”; “police with batons held back hundreds of Kurdish
demonstrators”.
[22]
The RPD member’s reasons on this aspect could have been more
explicitly set out, but nonetheless I find his decision on this record
reasonable. The
member accepted that the Applicant may have been detained. However, the member
then made a clear finding that the Applicant’s detention both times was for
reasons of public peace and was unrelated to any Convention ground for
persecution. I think that this is a reasonable finding. Although it is
likely that the police could have imputed a particular political opinion or
ethnicity to the Applicant based on his presence at a rally for education and
at a Kurdish celebration, it is not clear that the Applicant’s detention was in
reaction to these perceived political opinions or ethnicity. The Turkish
authorities do not seem to treat Kurdish gatherers any differently than they
treat any other sort of gathering. In fact, the record suggests that anyone
gathering, even peacefully, in Turkey is liable to be harassed or detained. The
Applicant therefore has not demonstrated that it was because of a Convention
ground that he was detained, and given the documentary evidence this
justification for his detainment cannot be inferred. I cannot interfere with
the RPD member’s conclusion that any detention was not for Convention grounds.
[23]
The
member’s acknowledgement of other inconsistencies lends strength to his
conclusion that the Applicant was not credible. The Applicant’s POE notes did
not mention the years of discrimination and harassment which he has faced in Turkey. The RPD
member asked for an explanation for this omission, heard it, and then concluded
with reasons that he did not accept that explanation. This is exactly the
process which this Court has held should be followed before using omissions
towards a credibility finding and this aspect of the decision is not in error.
[24]
Similarly,
the Applicant only mentioned his objection to military service in the last
paragraph of his PIF and did not provide much in the way of evidence to support
his objection. It was reasonable for the member to have found that this was
merely a fact added to bolster the refugee claim. If the Applicant had wanted
to make this a central aspect of his claim, he ought to have included it in his
POE notes and provided more substantial evidence documenting his objections and
the persecution which he would face.
[25]
The
RPD member was entitled to consider delay and re-availment as potentially
indicative of a lack of subjective fear: see Nimour v. Canada (MCI) (1999), 93 A.C.W.S. (3d) 732 (F.C.T.D.), F.C.J. No. 1356
(QL) and Heer v. Canada (MEI), [1988] F.C.J. No.
330 (C.A.) (QL). It is not clear from the parties’ submissions exactly when
the Applicant claims he began to fear persecution, but in this case, it is not
necessary to determine the exact moment. Even if the member erred in
considering the delay and re-availment until 2003, his conclusion would still
be reasonable on the basis of the Applicant’s delay in claiming in Canada. The
Applicant’s reason for more than two years’ delay - that he did not know how to
apply - is not particularly compelling.
[26]
The
Applicant’s inconsistency in identifying when his fear began only serves to
further undermine his claim. He testified that he did not fear persecution in 2002,
and therefore, he argues in his memorandum, reavailment and delay before 2003
should not be relevant. In my opinion, this claim puts in doubt his entire
refugee claim, which is based primarily on events occurring in 2001 and 2002.
Without some significant intervening factor, it is unsustainable to suggest
that subjective fear did not develop until years after the events underlying
the fear. I note that this court has acknowledged the possibility of fear
arising after a series of individual events, and that it need not arise from
one particular moment. Even taking this into consideration, there is still no
reason for a subjective fear based on a Convention ground.
[27]
As
was noted by Justice Robert Barnes in Sundararajah v. Canada (MCI), 2007
FC 1148, 161 A.C.W.S. (3d) 966 at para. 17, the assessment of credibility is
generally based on a cumulative assessment of the evidence and rarely
turns on any one particular piece of evidence. The RPD member in the case at
bar considered a number of factors and applied them completely in accordance
with the jurisprudence. His determination that the Applicant was not credible
was reasonable and therefore is immune from judicial interference.
[28]
The
credibility finding of the RPD member extends, as described above, to the
finding of a lack of subjective fear, lack of Convention grounds, and also to
the finding that the Applicant was not abused by the police while in custody.
[29]
At
this point I note that the Applicant raised an issue regarding whether,
objectively speaking, mistreatment of detainees by police is acceptable. This
question responds to the documentation which states that abuse is not
infrequent while in policy custody. However, since the member found the
Applicant not to be credible regarding mistreatment by the police, and I have
found this decision to be reasonable, there is no need to discuss this issue.
b. Did the RPD err in failing to deal with
the question of whether the Applicant will face a risk of persecution or
mistreatment or torture (under ss. 96 and 97) if the Applicant perseveres with
activities that promote Kurdish culture, religion, or politics?
[30]
Canadian
courts, including the Supreme Court, have on many occasions observed that
hypothetical questions fail to meet the “live controversy” test and thus are
moot: see for example Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, 57
D.L.R. (4th) 231 at para. 16. In my opinion, this argument must fail for
mootness.
[31]
The
RPD member determined that the Applicant would not face persecution or a risk
of serious harm if he were sent back to Turkey, based on
past and current evidence of country conditions and on the Applicant’s
activities. Once the member has determined that the Applicant would not be at
risk if returned, he is not required to consider whether or not a new risk
might arise based on hypothetical future events. The RPD member was correct in
not addressing this issue.
c. Did the RPD err in any way in relation to
the claim as based on evasion of military service?
[32]
The
Applicant mentioned in his testimony, but failed to substantiate, claims that
he has received documents suggesting that there is an arrest warrant out for
him because he did not report for military service. Unfortunately, the
Applicant did not submit any of these documents – neither his call-up for
service, nor any documentation or affidavit concerning his arrest warrant were
provided to the tribunal.
[33]
The
Respondent submits that, although the RPD decision omitted to mention several
of the details, its failure to mention every piece of evidence is not fatal.
Further, they submit that the RPD member found that the Applicant was not
credible.
[34]
The
RPD member noted in his decision that the Applicant had been able to defer his
service because he was at university, but that upon his return to Turkey, he
would be required to serve.
[35]
During
the hearing, the Applicant was questioned about the military. He acknowledged
that it may be possible to “buy himself out” of service by paying the
government, but said that this was dependant upon luck. Although he also
mentioned not wanting to use a gun against his own people, his primary fear
seemed to relate to his own background and the possibility that he would be
targeted and killed because of his ethnicity while he was in the military.
[36]
The
Applicant’s limited testimony and evidence was not sufficient to demonstrate
that he could meet the high burden to be a conscientious objector.
Conscientious objectors may be granted refugee status where it can be said that
the prosecution that they would likely face is so severe as to amount to
persecution. However, there is no evidence on the record to explain the extent
of the Applicant’s objections or what kind of treatment a conscientious
objector in Turkey would be
given. The Applicant failed to mention whether his unwillingness to serve was
full or partial – i.e., whether he would be willing to serve in a non-combat
role or against non-Kurdish enemies. Often, conscientious objectors are allowed
to serve in non-combat roles but Turkey’s policy on this is not
mentioned in the record. The evidence before the RPD member also left uncertain
the punishment for refusing to serve. Without these details, it is not possible
to evaluate whether a conscientious objector could face persecution.
[37]
In
short, the Applicant did not put in any evidence aside from his own brief
testimony on this issue. This is not an uncommon issue, and it is surprising
that the Applicant did not provide at least the documentation which he said was
in his family’s possession. The RPD member found that this claim was simply
added to bolster the Applicant’s refugee claim and that the Applicant had not
demonstrated his status as a conscientious objector. There is nothing
unreasonable on this record about such a decision.
d. Did the RPD err in relation to the separate analysis required under
section 97?
[38]
The
Applicant submits that there is no subjective fear component to a section 97
analysis, and therefore implies that the RPD member ought to have conducted a
full section 97 analysis, quoting Ozdemir v. Canada (MCI), 2004 FC 1008,
256 F.T.R. 154 and Kilic v. Canada (MCI), 2004 FC 84, 245 F.T.R 52.
[39]
The
Respondent submits that, having found no subjective fear, the RPD member had no
need to go on to complete a separate section 97 analysis. The Respondent also
cites Kulendrarajah v. Canada (MCI), 2004 FC 79, 245 F.T.R. 145 for the
proposition that, where no grounds other than the Convention grounds are put
forward, and where the Convention grounds are not sustainable for lack of
credibility, there is no need for a separate analysis.
[40]
I
note that the RPD member explicitly found that the claimant’s fear of
persecution was neither subjectively nor objectively well-founded. The RPD
member also considered the evidence on failed asylum-seekers returning to Turkey and found
that they are treated in the same way as other Turkish citizens. The Applicant
did not put forward any different reasons for claiming that he was a person in
need of protection than those he put forward for claiming persecution. Given
that those reasons were not accepted to be true, there is no basis upon which a
section 97 claim could have been grounded in this case. Thus I would follow
Justice Judith Snider in Nascimento v. Canada (MCI), 2005 FC 1078, 141
A.C.W.S. (3d) 1024 when she noted that:
[17]….Accordingly, there was nothing
before the Board that could have resulted in a different outcome or that
required separate analysis by the Board for purposes of s. 97. Even if the
Board erred in not undertaking a clear s. 97 analysis, there would be no
purpose served by sending this matter for re-determination.
Conclusion
[41]
For
the reasons discussed above, I find that the RPD member committed no reviewable
error in this decision. In the result, this Application for Judicial Review is
dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this Application for judicial review is dismissed.
“Orville Frenette”
Email this Content