Date: 20080714
Docket: IMM-145-08
Citation: 2008 FC 869
Ottawa, Ontario, July 14,
2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
YUSUF BAYSAL
OZLEM BAYSAL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Yusuf
Baysal is a Turkish national of Kurdish ethnicity. He taught music in Polatli, Turkey without a business
licence. He taught Kurdish music to Kurdish children. He conducted a public
concert of his students and was immediately detained by the police. He was
detained by the police on another occasion. The police beat, tortured, and
threatened him with death. The police searched his business premises many
times. The police searched him when he was in the street. Mr. Baysal fled
with his wife to Canada. After he left Turkey the police
continued to be interested in him, asking his family and neighbours where he
was and whether he would be returning. The Immigration and Refugee Board found
that this police “harassment” more likely occurred because Mr. Baysal operated
an unlicensed business, than because he was a Kurd. Was that decision
reasonable?
[2]
For
the brief reasons that follow, I am of the view that the decision was not
reasonable based on the totality of the evidence before the Board, significant
parts of which the Board failed to reference in its written reasons. That
failure, in the circumstances, is an error of law.
BACKGROUND
[3]
Mr.
Baysal’s refugee claim is based on allegations that he had been persecuted while
in the Turkish military and subsequently when he owned a music store where he
taught Kurdish music. He described having suffered mistreatment at the hands
of the military when he was a part of it. His evidence was that he was
eventually detained in a military jail after a complaint that he and a friend
had been making “separatist propaganda”. The two were held for 28 days, the
first three days of which they were kept in a building with no heating. Mr.
Baysal subsequently deserted the army although he turned himself in two years
later and spent another 120 days in detention as a result of his desertion. He
stated that his experience in the military made him sympathetic to the Kurdish
issue and after he was released from jail and had resigned from military he began
visiting the DEHAP office in Polatli, although he did not become a member of
that political party. He also opened a music store, although he was unable to
get a business permit due to his military history.
[4]
On
March 21, 2005, he was detained during the Kurdish New Year celebrations in Polatli.
He was leading his students in a public music concert at the time. He
testified that during his detention two plainclothes police officers slapped him,
hit him with their fists and cursed at him. He asked them what his crime was
and why he was being detained and they told him “you know very well why you are
here and what's your crime". He was then beaten for about 10 minutes
during which time he was kicked, his hair was pulled and his lip was smashed.
During this interrogation he was warned to close his business otherwise it
would not be good for him. He recalled one of the officers asking him “why
only Kurdish, why don't you teach Turkish". He told them that he did not
think it was a crime to teach Kurdish music to which one replied “you know what
happens to those who don't love this country". Mr. Baysal testified that
he told the officers that he did love his country; he just wanted to practice
his language and his culture. He told the Board that it was then that one of
them “hold my head with my hair and hit the table and I was threatened that only
Turks can live here, nobody else". He was also threatened that if he did
not close his business they would come and arrest him again. He was released
the following morning.
[5]
After
his release, Mr. Baysal continued to operate his music store, although police
officers came to his business a number of times and searched the store and he
was stopped by the police in the street many times. In May 2006, Mr. Baysal was
once again taken into police custody where he states that he was beaten badly.
He was kicked, punched and beaten with truncheons. He was stripped naked, made
to lie down on the floor, and beaten on the soles of his feet - a procedure known
as “falaka”. His evidence was that the police also threatened to close down
his business and there were threats made to him concerning what would happen to
his wife if he did not close it. He testified that during this interrogation
the police officers accused him of teaching Kurdish music and making Kurdish
and separatist propaganda. Following this detention, his wife began receiving
threatening phone calls and was questioned by police at her workplace. Mr. Baysal
and his wife left Turkey on July 18, 2006, for Canada.
ANALYSIS
[6]
The
Board found that there was nothing that happened to Mr. Baysal while serving
the military that could reasonably support his refugee claim. I agree.
[7]
There
was documentary evidence before the Board that torture and ill-treatment by law
enforcement officials is a common practice in Turkey and that “police
also regularly used disproportionate force against demonstrators, particularly
targeting leftists, supporters of the pro-Kurdish party DEHAP, students and
trade unionists....". As noted above, the Applicant was a supporter of
the DEHAP, although not a member. The Applicant taught Kurdish music to Kurdish
children. He had them perform in public. Accordingly, the Applicant’s
detention and mistreatment by the police was exactly the sort of conduct the
evidence indicated was likely to occur to a Kurdish supporter. There was no
evidence that such detention and disproportionate force is used by law
enforcement officials on owners of unlicensed businesses.
[8]
Mr.
Baysal and his students performed publicly during the Newroz celebration, an
important Kurdish day of celebration. The police observed the performance and when
the crowd became disruptive, the police started into the crowd. Mr. Baysal was
detained and taken to the security directorate. During his detention he was
slapped, cursed at, and punched. Is it reasonable to conclude that he was
detained at a Kurdish celebration conducting children singing Kurdish songs
because he did not have a business license? I think not.
[9]
The
Board held that “it is not credible that he would be identified as a ‘dangerous
person’ because of the music lessons he gave”. The Board notes that his
business cards and advertising did not identify his business as one teaching
Kurdish music. Yet, the uncontradicted evidence before the Board was that the
Applicant did teach Kurdish music and that the police knew it. Whether he
advertised this is irrelevant. If teachers of Kurdish music are persecuted in Turkey, they would
be foolhardy to advertise that fact.
[10]
During
his interrogation the police asked Mr. Baysal why he only taught Kurdish music
and not Turkish music. If the issue for the police was that he was running an
unlicensed music business, why would they even suggest that he should be
teaching Turkish music? This exchange, when he was under detention, is not mentioned
by the Board in its reasons. Because it is so telling, the Board ought to have
addressed it directly and indicated why they concluded that it was not relevant
or why it was being discounted. While the Board does not need to review all
the evidence in its decision, it does need to review evidence that directly
contradicts its conclusions and indicate why it has discounted that evidence.
[11]
The
Board also failed to address other evidence that supported the testimony of Mr.
Baysal and countered the Board’s conclusion. One of the police officers told Mr.
Baysal “you know that those who don't love this country, what happens to
them". It is hard to believe that operating a business without a license
would be seen as a mark of a lack of love for Turkey. Based on
the evidence of the insistence of the Turkish government that there be a single
designation for its citizens and its failure to recognize ethnic groups, this
statement strongly supports the Applicant’s assertion that he was targeted
because of his ethnicity.
[12]
The
Board also fails to address evidence that even after Mr. Baysal had closed his
business and left Turkey the police continued to make inquiries of his
family and neighbours as to his location and whether he would be returning to Turkey. Again,
this evidence supports the Applicant and runs counter to the Board’s
conclusions.
[13]
The
Board appears to have examined the conduct of the local Turkish police through
North American eyes. A Canadian would not likely view teaching music of a
minority as an activity that would attract police attention, while operating a
business without a licence would. There is no evidence that the same holds
true in Turkey. In fact,
there was no evidence before the Board that operating an unlicensed business
attracts any police attention in Turkey. There was significant
evidence that being a Kurdish supporter does attract police attention.
[14]
For
these reasons, I find that the decision of the Board is not reasonable and must
be set aside.
[15]
Since
this application was filed, Ozlem Baysal has returned to Turkey and counsel
asks that the style of cause be amended to remove her as a party. The Minister
consents and an order will issue amending the style of cause.
[16]
Neither
party proposed any question to be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The style
of cause is hereby amended as follows:
YUSUF BAYSAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
2.
The
decision of the Immigration and Refugee Board dated December 11, 2007, is set
aside and the Refugee claim of Yusuf Baysal is referred to a different Member
for determination.
3. No
question is certified.
“Russel W. Zinn”
Email this Content