Date:
20130326
Docket:
IMM-6353-12
Citation:
2013 FC 308
Ottawa, Ontario,
March 26, 2013
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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SERKAN ETIZ
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Mr.
Serkan Etiz (the applicant) is seeking a judicial review of a decision of the Immigration
and Refugee Board (the Board or the Board Member) dated June 14, 2012, in which
the Board determined that he was neither a Convention refugee nor a person in
need of protection under sections 96 and 97 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act].
[2]
For
the reasons that follow, I find that this application for judicial review
should be dismissed.
I. Context
[3]
The
applicant is a citizen of Turkey. He seeks protection in Canada under sections 96 and 97 of the Act as a conscientious objector who fears
persecution and cruel treatment due to his refusal to serve in the Turkish
military, as required by law.
[4]
Turkey
requires all male citizens aged 19 to 40 years old to perform compulsory
military service. The applicant claims that he is a pacifist who has held
pacifist beliefs since he was in high school. He refuses to take part in or to
be associated with the military in any way, particularly in light of the army’s
alleged involvement in human rights abuses and war crimes. He is also concerned
that he could be forced to serve in Eastern or South-Eastern Turkey, where he
submits that many of the alleged abuses are committed.
[5]
The
applicant argues that if he is sent back to Turkey, he will be imprisoned
because he is a deserter and because he will refuse to complete his military
service. Furthermore, the applicant argues that as a result he would be submitted
to harsh and cruel prison conditions which would amount to cruel and unusual
punishment.
[6]
Since
turning 19, the applicant has been able to defer military service by
registering for and completing an undergraduate degree, registering in an MBA
post-graduate program (of which he completed five months), and coming to Canada
on a work-study permit that was valid until March 31, 2009. He was able to
extend his work-study permit in Canada until November 17, 2010, but an
application to further extend his work permit was refused, first in January
2011 and again in May 2011. He alleges that, at that point in time, he had no
further options to defer his military service and decided to submit an
application for refugee protection.
II. Decision under review
[7]
The
Board found that the applicant was neither a “Convention refugee” under section
96 of the Act nor a person “in need of protection” within the meaning of
paragraphs 97(1)(a) or (b).
[8]
At
the outset of his decision, the Board Member indicated that he had concerns
with the applicant’s credibility. He stated that he was not convinced that the
applicant’s motivation was not more related to his desire to remain in Canada than to his fear of returning to Turkey where he would be forced to serve in the military.
The Board Member held that the applicant had not established, on a balance of
probabilities, that he has the “depth of conviction with respect to his desire
to avoid compulsory service which reaches the level of a ‘conscientious
objector’.”
[9]
The
Board Member based this finding on the following elements:
- The
applicant never participated in any activities, either in Canada or in Turkey, to confront the Turkish government’s conscription policy;
- The
applicant has not been a member of any organization, such as a student
organization, which confronts the government’s conscription policy;
- The
applicant made no efforts to seek relief from military service and made no
attempt to lengthen his military exemptions by any means or strategy;
- There
exists a policy in Turkey that sets out that in circumstances such as the
applicant’s – being almost 30, having a job and having lived abroad for
more than three years – the applicant might be able to shorten his
military service by paying a fine. The Board Member was not satisfied with
the applicant’s statement that he was not aware of that policy.
[10]
In
addition, the Board Member found that the applicant had not exhibited a level
of subjective fear consistent with a fear of persecution arising from
compulsory military service. To support this conclusion, the Board Member
reiterated that the applicant had failed to act proactively in order to find a
way, by any means possible, to avoid military service. The Board Member also
seems to have been concerned by the applicant’s statement that he was not aware
of the policy that could ease the burden of his service by paying a fine. In
this regard, the Board Member was of the view that the applicant appeared
“solely focussed on remaining in Canada.”
[11]
The
Board Member also discussed the possibility that the applicant would not be
able to avoid military service upon returning to Turkey and noted that this
Court has concluded that mandatory military service in Turkey does not necessarily amount to persecution. The Board Member referenced Ozunal v
Canada (The Minister of Citizenship and Immigration), 2006 FC 560, 291 FTR
305 [Ozunal], in which Justice Shore held that an applicant must meet
two requirements: first, he (or she) must show that that the depth of his
belief is such that he can be described as a conscientious objector; and,
second, he must show that if he were forced to serve in the Turkish military
forces there would be “a reasonable chance that he, if conscripted, would be
required to participate in military activities considered illegitimate under
existing international standards” (at para 17).
[12]
The
Board Member then discussed the documentary evidence regarding punishments
imposed on those who refuse to serve in the military. In this regard, the Board
Member was of the view that there was evidence that people who refused service
but did not demonstrate “strong views” on the subject did not face “persecution
level severity” as a result of the application of the Turkish Law. He
referenced an excerpt from the UK Guidance Notes for Turkey from which he
understood that the punishment for refusing to serve in the military imposed by
the Turkish government “is not normally of a quality that would necessitate a
grant of asylum unless there is some other ‘convention reason;’ for example
that the claimant were a Kurd.” The Board Member noted that the applicant is a
Sunni Muslim and that when his brother served in the military, he served in the
west part of the country, a region where there was no conflict.
[13]
At
paragraph 20 of the decision, the Board Member summarized his findings:
- The
applicant has not exhibited a level of conviction consistent with a
conscientious objector;
- The
applicant has not convinced the Board that he would be forced to perform
military service, or that, by refusing to perform military service, he
would face a prison sentence;
- The
applicant has asserted, but failed to provide evidence that in his
particular circumstances he would be forced into a situation where his
pacifist beliefs would be challenged because he could be required to
participate in a conflict;
- The
applicant has asserted, but failed to provide evidence that in his
particular circumstances, if he were to be sent to prison, “his treatment
in prison would reach a level of severity of punishment consistent with
persecution or that in prison he would face a risk as understood in
section 97 of IRPA.”
[14]
The
Board Member concluded his reasons by stating that the applicant had not “met
his burden of showing that he would face a serious possibility of persecution
if he were to return to Turkey or a risk as understood in section 97 of IRPA.”
III. Issues
[15]
This
case raises the following issues:
(1) Was
the Board’s conclusion that the applicant did not demonstrate that he is a
genuine conscientious objector reasonable?
(2) Did
the Board err in failing to conduct a proper analysis under section 97 of the Act
or provide sufficient reasons in that regard?
(3) Did
the Board Member’s refusal to recuse himself following the incident that
occurred during a hearing break constitute a violation of natural justice?
IV. Standard of review
[16]
With
respect to the first issue, it is well established that the assessment of the
genuineness of an applicant’s conscientious objector claim is reviewable on a
standard of reasonableness (Ozunal, above, at para 14).
Reasonableness is concerned with justification, transparency and
intelligibility within the decision-making process and 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 at
para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
[17]
Regarding
the second issue, in reviewing the Board Member’s analysis under section 97 of the
Act, questions regarding his assessment of danger or risk will be subject to a
reasonableness standard of review (see Dunsmuir, above). However, where
a Board Member fails to consider and comment on evidence relevant to its
determination, his failure to do so has been held to constitute a reviewable
error, whether the standard applied is one of reasonableness or correctness (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, 83
ACWS (3d) 264 (TD) [Cepeda-Gutierrez]; Baranyi v Canada (Minister of Citizenship
and Immigration), 2001
FCT 664 at
para 14,
106
ACWS (3d) 506). Nevertheless, on the basis of Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] SCR 708 [Newfoundland Nurses], the Board Member’s reasons
are not required to be perfect, nor do they need to be comprehensive. The reasons
must be reviewed in the context of the evidence, the parties’ submissions and
the decision-making process and they must
set out a line of analysis that reasonably supports the conclusion reached.
[18]
With
respect to the third issue, it is well established that the standard of review
applicable to a question of fairness or natural justice is one of correctness (Dunsmuir,
above, at para 129; Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 72, [2009] 1 SCR 339).
V. Arguments of the
parties
A. The applicant’s
submissions
[19]
The
applicant argues that the Board erred in its assessment of the evidence
regarding his status as a conscientious objector.
[20]
First,
the applicant argues that although the Board Member stated that he had “some
concerns with the credibility of the claimant”, he failed to identify any
contradictions or omissions raising credibility concerns. The applicant submits
that his sworn testimony was uncontradicted and is presumed to be true.
[21]
Next,
the applicant argues that his uncontradicted evidence clearly establishes that
he is a pacifist and conscientious objector. The applicant insists that the
Board Member mischaracterized the evidence when he said that the applicant was
unaware of the policy that would allow him to reduce the duration of his
military service by paying a fine. The applicant testified that he was aware of
the policy, but that he would refuse to serve even one day in the military, and
would refuse to pay a fine that would be used to fund military activities. The
applicant argues that the Board Member’s erroneous impression that the
applicant was unaware of the policy had an important bearing in his finding
that he is not a conscientious objector.
[22]
In
addition, the applicant argues that the Board Member failed to consider the
totality of the evidence by ignoring the fact that he was considered a deserter
by the Turkish military and that paying a fine would not prevent him from being
recalled for military services in the future.
[23]
With
respect to the section 97 analysis, the applicant recognizes that a separate
section 97 analysis is not always required. However, he argues that the Board
should have made such a separate analysis in this case, considering that there
was convincing evidence that he would face a prison sentence due to his refusal
to perform military service and he would be submitted to very harsh prison
conditions. The applicant acknowledges that section 97 of the Act is addressed
at paragraphs 20 and 21 of the Board Member’s decision, but argues that the Board
Member failed to refer to any evidence for its “cursory dismissal” regarding the
potential mistreatment that he would suffer in prison. The applicant submits that
this is particularly troubling in light of the fact that the Board Member agreed
that cruel and unusual punishment was an issue at the beginning of the hearing
(see page 269 of the Tribunal Record), that there was evidence dealing with the
harsh prison conditions in Turkey, including abuses and violence, and that counsel
for the applicant addressed the issue in his closing submissions. Therefore,
the applicant submits that the Board Member failed to address highly relevant
evidence which contradicted his finding and he is left not knowing whether the
Board Member even considered that evidence.
[24]
Finally,
the applicant raises an issue with respect to an exchange between the Board
Member and the Tribunal Officer that occurred during a break in the hearing
before the Board. It appears from the record that when the applicant and his
counsel returned from a break, they realized that the Tribunal Officer was
telling the Board Member that he intended to submit new evidence.
[25]
The
applicant argued that this ex parte discussion constituted a violation
of natural justice and a breach of Rule 60 of the Board’s Refugee Protection
Division Rules (SOR/2002-228) [Repealed, SOR/2012-256, s. 73], in force
until December 14, 2012, which stated that “[r]epresentations made by a party
or a refugee protection officer must be made orally at the end of a hearing
unless the Division orders otherwise.” He relies on Lopez Aguilar v Canada (Minister of Citizenship and Immigration), 2011 FC 908 at
para 10 (available on CanLII), which cites a prior finding that: “Whoever is to
adjudicate must not hear evidence or receive representations from one side behind
the back of the other” (applicant’s submissions, para 43).
B. The
respondent’s submissions
[26]
The
respondent submits that, in light of the evidence, it was reasonable for the
Board Member to conclude that the applicant failed to demonstrate that he was a
genuine conscientious objector or that the possible prison sentence that he would
face for evading military duty would expose him to a serious possibility of
persecution, a danger of torture or a risk to his life, or to cruel and unusual
treatment or punishment.
[27]
The
respondent contends that the punishment that can be imposed by a government on
its citizens for failing to perform compulsory military service cannot be
categorized as a per se source of persecution or risk under sections 96
or 97 of the Act.
[28]
The
respondent argues that applicants who refuse to perform military service cannot
generally claim refugee status, but acknowledges that those who are able to
demonstrate that they have principled objections to mandatory military service
may, in certain circumstances, be recognized. An applicant must first establish
that he is a conscientious objector. The respondent contends that the Board
Member’s assessment of the evidence in that regard was reasonable and insists
that the Board Member identified several reasons to doubt the applicant’s
convictions.
[29]
In
response to the applicant’s submissions regarding credibility, the respondent
notes that the Board Member was not required to rely on omissions or
contradictions to assess the applicant’s credibility, but could instead focus
on his behaviour as an indicator of the sincerity of his convictions.
[30]
Counsel
for the respondent admitted that the Board Member erred in stating that the applicant
indicated he was not aware of the policy allowing persons to pay a fine in
order to shorten their military service, but argues that this was not a
reviewable error as the Board did not draw any negative inferences from this
alleged lack of knowledge.
[31]
Regarding
the section 97 analysis, the respondent argues that the Board Member made a
section 97 assessment and that, in the circumstances of this case, his reasons
in that regard are sufficient. The respondent insists that it was the applicant’s
responsibility to establish that he would face a risk of torture, a risk to his
life, or a risk of cruel and unusual treatment, or punishment, and cites
authority for the proposition that imprisonment does not constitute per se persecution
in the case of military deserters (Ates v Canada (Minister of Citizenship
and Immigration), 2004 FC 1316, 261 FTR 318; confirmed in Ates v Canada
(Minister of Citizenship and Immigration), 2005 FCA 322, 343 NR 234 [Ates]).
[32]
The
respondent notes the Board Member’s conclusion that the documentary evidence
indicated that persons who refuse to perform military service but who do not
demonstrate “strong views” on the subject are not subjected to treatment
amounting to persecution was reasonable. Further, the respondent highlights the
Board Member’s finding that the punishment imposed on those who refuse to serve
in Turkey is not normally of a quality that would necessitate the granting of
asylum unless a convention reason exists, and submits that such a reason was
not found in this case.
[33]
In
addition, since the applicant had not demonstrated that he fell into the
category of persons that would be subjected to harsh treatment, the respondent
submits that it was reasonable for the Board to conclude that the applicant
could not rely on documentary evidence relating to the treatment of
conscientious objectors.
[34]
With
respect to the ex parte conversation between the Tribunal Officer and
the Board Member, the respondent stated that this conversation was limited to
the Tribunal Officer saying that he intended to submit new evidence. Before any
additional comments were made, the applicant and his counsel walked into the
hearing room. The respondent further notes that the additional evidence that
the Tribunal Officer wished to adduce was not ultimately entered into evidence
and that no breach of natural justice stemmed from that ex parte
discussion.
VI. Analysis
(1) Was the Board’s
conclusion that the applicant did not demonstrate that he is a genuine
conscientious objector reasonable?
[35]
In
this judicial review, the first issue relates to the Board’s finding that the
applicant has not established that he is a conscientious objector. I am of the
view that the Board Member’s finding that the applicant failed to establish
that the depth of his conviction was sufficient to make him a conscientious
objector was reasonably open to him. It appears from the decision that the
Board Member assessed the applicant’s evidence in that regard and afforded
weight to elements that were relevant, namely that the applicant failed to make
any effort to seek relief from military service or to extend his exemption and
that he never participated in any activities or organizations confronting the
Turkish government’s conscription policy. The Board found that the applicant
had not exhibited the level of subjective fear that would be consistent with a
fear of persecution arising from compulsory military service. This finding is
reasonable in light of the totality of the evidence submitted to the Board.
[36]
I
am also of the view that the respondent was correct to assert that the Board
was not required to rely on omissions or contradictions to assess the applicant’s
credibility and was justified in focusing on his behaviour as an indicator of
the sincerity of his convictions.
[37]
Even if accepted, the applicant’s submissions
that the military
already considers him a deserter and that paying a fine would not prevent him
from being recalled in the future would not change the Board’s conclusions
regarding the depth of the applicant’s convictions. As such, the failure to
engage in these submissions cannot be considered a determinative error. In
addition, the Board is presumed to have considered the totality of the evidence
and is not required to refer to every piece of evidence in its decision (Cepeda-Gutierrez,
above, at paras 14-17).
[38]
I
acknowledge that the Board Member made a mistake in stating that the applicant
indicated that he was unaware of the policy allowing persons to pay a fine in
order to shorten their military service, but I find this error to be
insufficient to vitiate the Board’s general appreciation of the evidence.
[39]
In
light of the above, I believe that the applicant disagrees with the Board’s
finding regarding the depth of his conviction, and is asking the Court to re-weigh
the evidence. This is not the Court’s role.
[40]
I
also consider that it was reasonable for the Board to conclude that compulsory
military service is the result of a law of general application, and is not
inherently persecutory (Ozunal, above, at paras 22-23). The applicant
has not established any facts specific to his case that suggests that the law
in question is specifically persecutory against him in relation to a convention
ground.
[41]
I
find that the Board Member’s conclusion that “there is evidence that those who
refuse service but do not demonstrate ‘strong views’ on the subject are not
faced with persecution level severity because of the application of Turkish
law” (Decision, at para 18) is supported by the UK Guidance Notes for Turkey
referenced by the Board Member, as by other documentary evidence that was part
of the record.
[42]
Finally,
the Federal Court of Appeal has confirmed, in response to a certified question,
that imprisonment per se does not constitute persecution in the case of
military deserters, even where there is no alternative to compulsory service,
and a conscientious objector will be subject to repeated prosecutions and
incarcerations (Ates, above).
(2) Did the Board err in
failing to conduct a proper analysis under section 97 of the Act or provide
insufficient reasons in this regard?
[43]
The
Board did not fail to conduct a separate section 97 analysis. While the Board’s
reasons regarding its section 97 analysis could have been more extensive, I am
of the view that the reasons provided were sufficient to understand the basis
of the finding and to satisfy the test enunciated in Newfoundland Nurses,
above. Furthermore, I am of the view that the Board’s conclusion that the
applicant is not a person in need of protection falls within the range of
possible, acceptable outcomes which are defensible with respect of the
evidence.
[44]
It
is important to note that the Board Member’s decision clearly demonstrates that
he turned his mind to the question of whether the prison conditions to which
the applicant might be subjected would result in a risk of torture, or a risk
of cruel and unusual treatment or punishment in accordance with the
requirements of section 97 of the Act.
[45]
First,
the Board Member clearly indicated at the outset of his reasons that the
applicant was claiming protection under both sections 96 and 97 of the Act.
[46]
Second,
at paragraph 20 of his decision, the Board made a clear finding with respect to
section 97 of the Act:
[…] The claimant asserts but has not provided
evidence that in his particular circumstances [he] would be forced into a
situation where his pacifist beliefs would be challenged (involved in a
conflict) or that if he were to be sent to prison that his treatment in
prison would reach a level of severity of punishment consistent with
persecution or that in prison he would face a risk as understood in section
97 of IRPA.
[Emphasis added]
[47]
The
Board Member again referenced section 97 at paragraph 21, where he indicated
that the applicant had not met his burden of showing that he would face a risk
as outlined in section 97 if he were to return to Turkey.
[48]
The
sufficiency of the Board Member’s reasons and the reasonableness of his
conclusions are intertwined such that the applicant must demonstrate, as with
his section 96 findings, that there was no line
of analysis that could reasonably support the Board Member’s section 97
conclusions (see Newfoundland Nurses, above). I do not accept that the applicant
has succeeded in meeting this burden on the facts or evidence of the case at
hand. As argued by the respondent, “[t]he Board’s analysis, while
brief, is sufficient to explain why the Applicant’s claim was rejected under s.
97 of the IRPA” (respondent’s submissions, para 52).
[49]
One
must also keep in mind that the Board’s initial finding was that the applicant
had not established that he was a conscientious objector and that most of the
documentary evidence discussing the harsh prison conditions in Turkey relates
to cases involving recognized conscientious objectors.
[50]
In
addition, the Board was not convinced that the applicant would be imprisoned
should he return to Turkey and refuse to perform military service.
[51]
Finally,
the Board’s conclusion can reasonably find support in the documentary evidence.
[52]
For
the reasons set out above, I conclude that the Board Member’s analysis with
respect to section 97 of the Act was not unreasonable and that his reasons were
sufficient to support his conclusions.
(3) Did the Board Member’s
refusal to recuse himself following the incident that occurred over the break
in the hearing constitute a violation of natural justice?
[53]
Although
counsel for the applicant did not plead this argument at the hearing, he did
not formally abandon it. Therefore, I will deal with it briefly. Although
the Tribunal Officer should not have communicated with the Board Member outside
the presence of the applicant and his counsel, I consider that there was no
breach of natural justice in the particular circumstances of this case. The applicant
has provided no evidence suggesting that the Board Member’s description of
events should not be believed or that the Tribunal Officer made any submissions
beyond merely raising the existence of certain articles, as described in the
hearing transcript.
[54]
It
appears from the record that the discussion was not initiated by the Board
Member and that the applicant was ultimately given a full opportunity to
address the relevance of the evidence that the Tribunal Officer sought to
introduce. It also appears from the record that the Board Member did not allow
the Tribunal Officer to introduce the additional evidence.
[55]
As
a result, I am not convinced that there was a violation of natural justice or
that the applicant was in any way prejudiced by the ex parte discussion.
[56]
In
light of all of the above, I find that the application for judicial review
should be dismissed.
[57]
Neither
party proposed a question for certification and none arise in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No question of general importance is certified.
“Marie-Josée Bédard”
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